Key Definitions and Concepts
20. A clear and consistent understanding of the different concepts and terminology in child protection is essential. If action to support and protect children is to be informed and effective, all stakeholders must have a clear, consistent understanding of what is meant by terms such as 'child', 'child abuse', 'neglect' and 'child protection'. This chapter of the guidance therefore provides definitions and explanations of key terms within child protection processes.
Who is a child?
21. A child can be defined differently in different legal contexts:
- In terms of Part 1 of the Children (Scotland) Act 1995 (which deals with matters including parental rights and responsibilities), a child is generally defined as someone under the age of 18. In terms of Chapter 1 of Part 2 (which deals with support for children and families and includes local authorities' duties in respect of looked after children and children "in need"), a child is also defined as someone under the age of 18. In terms of Chapters 2 and 3 of Part 2 (which dealt with matters including children's hearings and child protection orders), a child means someone who has not attained the age of sixteen years; a child over the age of sixteen years who has not attained the age of eighteen years and in respect of whom a supervision requirement is in force; or a child whose case has been referred to a children's hearing by virtue of section 33 of this Act (Effect of orders etc. made in others parts of the United Kingdom). However, Chapters 2 and 3 of Part 2 have been largely repealed by the Children' s Hearings (Scotland) Act 2011, except in relation to certain ongoing cases which are still proceeding under the 1995 Act.
- The Children's Hearings (Scotland) Act 2011 now contains the current provisions relating to the operation of the Children's Hearings system and child protection orders. Section 199 states that, for the purposes of this Act, a child means a person under 16 years of age. However, this section also provides some exceptions to that general rule. Subsection (2) provides that for the purposes of referrals under section 67(2)(o) (failure to attend school), references in the Act to a child include references to a person who is school age. "School age" has the meaning given in section 31 of the Education (Scotland) Act 1980. Additionally, children who turn 16 during the period between when they are referred to the Reporter and a decision being taken in respect of the referral, are also regarded as "children" under the Act. Children who are subject to compulsory measures of supervision under the Act on or after their 16th birthday are also treated as children until they reach the age of 18, or the order is terminated (whichever event occurs first). Where a sheriff remits a case to the Principal Reporter under section 49(7)(b) of the Criminal Procedure (Scotland) Act 1995, then the person is treated as a child until the referral is discharged, any compulsory supervision order made is terminated, or the child turns 18.
- The United Nations Convention on the Rights of the Child applies to anyone under the age of 18. However, Article 1 states that this is the case unless majority is attained earlier under the law applicable to the child.
- The meaning of a child is extended to cover any person under the age of 18 in cases concerning: Human Trafficking; sexual abuse while in a position of trust (Sexual Offences (Scotland) Act 2009) and the sexual exploitation of children under the age of 18 through prostitution or pornography (Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005)
- When the Children and Young People (Scotland) Act 2014 comes into force, a "child" will be defined for the purposes of all Parts of that Act, as someone who has not attained the age of 18.
22. The individual young person's circumstances and age will dictate what legal measures can be applied. For example, the Adult Support and Protection (Scotland) Act 2007 can be applied to over-16s where the criteria are met. This further heightens the need for local areas to establish very clear links between their Child and Adult Protection Committees and to put clear guidelines in place for the transition from child to adult services. Young people aged between 16 and 18 are potentially vulnerable to falling 'between the gaps' and local services must ensure that processes are in place to enable staff to offer ongoing support and protection as needed, via continuous single planning for the young person. The GIRFEC framework and provision of the Named Person service for 16-18 year olds will be key to ensuring that wellbeing needs can be identified and addressed.
23. Where a young person between the age of 16 and 18 requires protection, services will need to consider which legislation or policy, if any, can be applied. This will depend on the young person's individual circumstances as well as on the particular legislation or policy framework. On commencement of the Children and Young People (Scotland) Act 2014, similar to child protection interventions, all adult protection interventions for 16 and 17 year olds will be managed through the statutory single Child's Plan. Special consideration will need to be given to the issue of consent and whether an intervention can be undertaken where a young person has withheld their consent. The priority is to ensure that a vulnerable young person who is, or may be, at risk of significant harm is offered support and protection.
24. This guidance is designed to include children and young people up to the age of 18. However, as noted above, the protective interventions that can be taken will depend on the circumstances and legislation relevant to that child or young person. It is also important to identify and support vulnerable pregnant women and give consideration to high-risk pregnancies within child protection processes.
Who are parents and carers?
25. A 'parent' is defined as someone who is the genetic or adoptive mother or father of the child. A child may also have a parent by virtue of provisions in the Human Fertilisation and Embryology Act 2008. A mother has full parental rights and responsibilities. A father has parental rights and responsibilities if he is or was married to the mother at the time of the child's conception or subsequently, or if the child's birth has been registered after 4 May 2006 and he has been registered as the father of the child on the child's birth certificate. A father or, where relevant, a second female parent by virtue of the Human Fertilisation and Embryology Act 2008 may also acquire parental responsibilities or rights under the Children (Scotland) Act 1995 by entering into a formal agreement with the mother or by making an application to the courts.
26. Parental rights are necessary to allow a parent to fulfil their responsibilities, which include looking after their child's health, development and welfare, providing guidance to their child, maintaining regular contact with their child if they do not live with them and acting as their child's legal representative. In order to fulfil these responsibilities, parental rights include the right to have their child live with them and to decide how their child is brought up.
27. A 'carer' is someone other than a parent who has rights/responsibilities for looking after a child or young person. 'Relevant persons' have extensive rights within the Children's Hearing system, including the right to attend Children's Hearings, receive all relevant documentation and challenge decisions taken within those proceedings. A carer may be a 'relevant person' within the Children's Hearing system.
28. A 'kinship carer' can be a person who is related to the child or a person who is known to the child and with whom the child has a pre-existing relationship ('related' means related to the child either by blood, marriage or civil partnership). Regulation 10 of the Looked After Children (Scotland) Regulations 2009 ("the 2009 Regulations") provides that a local authority may make a decision to approve a kinship carer as a suitable carer for a child who is looked after by that authority under the terms of section 17(6) of the Children (Scotland) Act 1995. Before making such a decision the authority must, so far as reasonably practicable, obtain and record in writing the information specified in Schedule 3 to the 2009 Regulations and, taking into account that information, carry out an assessment of that person's suitability to care for the child. Other duties placed on local authorities by the 2009 Regulations are designed to ensure that they do not make or sustain placements that are not safe or in the child's best interests and that placements are subject to regular review.
29. Preventative and protective work is necessary to support carers and, in particular, kinship carers who may face added challenges. These include the potential risks posed by parents; where the kinship carer is a grandparent, this may mean making decisions as to how best to protect their grandchild or grandchildren from their own child. Kinship carers may have ambivalent feelings about the circumstances that have resulted in them having to care for a child or young person. Services should be sensitive to these issues and offer support wherever possible.
30. Kinship care placements of looked after children made under the 2009 Regulations, as described above, are often referred to as formal kinship care. Informal kinship care refers to care arrangements made by parents or those with parental responsibilities with close relatives or, in the case of orphaned or abandoned children, by those relatives providing care. A child cared for by informal kinship carers is not 'looked after'. The carer in such circumstances is not a foster carer, nor is assessment of such a carer by the local authority a legal requirement.
31. Private fostering refers to children placed by private arrangement with persons who are not close relatives. 'Close relative' in this context means mother, father, brother, sister, uncle, aunt, grandparent, of full blood or half blood or by marriage. Where the child's parents have never married, the term will include the birth father and any person who would have been defined as a relative had the parents been married.
What is child abuse and child neglect?
32. Abuse and neglect are forms of maltreatment of a child. Somebody may abuse or neglect a child by inflicting, or by failing to act to prevent, significant harm to the child. Children may be abused in a family or in an institutional setting, by those known to them or, more rarely, by a stranger. Assessments will need to consider whether abuse has occurred or is likely to occur.
33. While it is not necessary to identify specific areas of concern when adding a child's name to the Child Protection Register (for further information, see the section on the Child Protection Register), it is still helpful to consider and understand the different ways in which children can be abused. The following definitions show some of the ways in which abuse may be experienced by a child but are not exhaustive, as the individual circumstances of abuse will vary from child to child.
34.Physical abuse is the causing of physical harm to a child or young person. Physical abuse may involve hitting, shaking, throwing, poisoning, burning or scalding, drowning or suffocating. Physical harm may also be caused when a parent or carer feigns the symptoms of, or deliberately causes, ill health to a child they are looking after. For further information, see the section on Fabricated or induced illness.
35.Emotional abuse is persistent emotional neglect or ill treatment that has severe and persistent adverse effects on a child's emotional development. It may involve conveying to a child that they are worthless or unloved, inadequate or valued only insofar as they meet the needs of another person. It may involve the imposition of age - or developmentally - inappropriate expectations on a child. It may involve causing children to feel frightened or in danger, or exploiting or corrupting children. Some level of emotional abuse is present in all types of ill treatment of a child; it can also occur independently of other forms of abuse.
36.Sexual abuse is any act that involves the child in any activity for the sexual gratification of another person, whether or not it is claimed that the child either consented or assented. Sexual abuse involves forcing or enticing a child to take part in sexual activities, whether or not the child is aware of what is happening. The activities may involve physical contact, including penetrative or non-penetrative acts. They may include non-contact activities, such as involving children in looking at, or in the production of indecent images or in watching sexual activities, using sexual language towards a child or encouraging children to behave in sexually inappropriate ways (see also section on child sexual exploitation).
37.Neglect is the persistent failure to meet a child's basic physical and/or psychological needs, likely to result in the serious impairment of the child's health or development. It may involve a parent or carer failing to provide adequate food, shelter and clothing, to protect a child from physical harm or danger, or to ensure access to appropriate medical care or treatment. It may also include neglect of, or failure to respond to, a child's basic emotional needs. Neglect may also result in the child being diagnosed as suffering from 'non-organic failure to thrive', where they have significantly failed to reach normal weight and growth or development milestones and where physical and genetic reasons have been medically eliminated. In its extreme form children can be at serious risk from the effects of malnutrition, lack of nurturing and stimulation. This can lead to serious long-term effects such as greater susceptibility to serious childhood illnesses and reduction in potential stature. With young children in particular, the consequences may be life-threatening within a relatively short period of time.
What is child protection?
38. 'Child protection' means protecting a child from child abuse or neglect. Abuse or neglect need not have taken place; it is sufficient for a risk assessment to have identified a likelihood or risk of significant harm from abuse or neglect. Equally, in instances where a child may have been abused or neglected but the risk of future abuse has not been identified, the child and their family may require support and recovery services but not a Child Protection Plan. In such cases, an investigation may still be necessary to determine whether a criminal investigation is needed and to inform an assessment that a Child Protection Plan is not required.
39. There are also circumstances where, although abuse has taken place, formal child protection procedures are not required. For example, the child's family may take protective action by removing the child from the source of risk. Children who are abused by strangers would not necessarily require a Child Protection Plan unless the abuse occurred in circumstances resulting from a failure in familial responsibility. For example, if a young child is abused by a stranger, a Child Protection Plan may be required only if the family were in some way responsible for the abuse occurring in the first instance or were unable to adequately protect the child in the future without the support of a Child Protection Plan.
What is harm and significant harm in a child protection context?
40. Child protection is closely linked to the risk of 'significant harm'. 'Significant harm' is a complex matter and subject to professional judgement based on a multi-agency assessment of the circumstances of the child and their family. Where there are concerns about harm, abuse or neglect, these must be shared with the relevant agencies so that they can decide together whether the harm is, or is likely to be, significant. The Children and Young People (Scotland) Act 2014, introduces a legal duty for a wide range of public bodies and those commissioned or contracted to them to share such concerns with a child's Named Person. Through early and effective intervention and the sharing of wellbeing concerns it is hoped that crisis can be avoided in many cases.
41. Significant harm can result from a specific incident, a series of incidents or an accumulation of concerns over a period of time. It is essential that when considering the presence or likelihood of significant harm that the impact (or potential impact) on the child takes priority and not simply the suspected or reported abusive behaviour. It should be remembered that the threshold for referral to the Children's Reporter is not the significant harm threshold, but when it is considered that a child is in the need of protection, guidance, treatment or control and Compulsory Measures of Supervision might be necessary. The following sections illustrate considerations that need to be taken into account when exercising that professional judgement.
42. In order to understand the concept of significant harm, it is helpful to look first at the relevant definitions.
- 'Harm' means the ill treatment or the impairment of the health or development of the child, including, for example, impairment suffered as a result of seeing or hearing the ill treatment of another. In this context, 'development' can mean physical, intellectual, emotional, social or behavioural development and 'health' can mean physical or mental health.
- Whether the harm suffered, or likely to be suffered, by a child or young person is 'significant' is determined by comparing the child's health and development with what might be reasonably expected of a similar child.
43. There are no absolute criteria for judging what constitutes significant harm. In assessing the severity of ill treatment or future ill treatment, it may be important to take account of: the degree and extent of physical harm; the duration and frequency of abuse and neglect; the extent of premeditation; and the presence or degree of threat, coercion, sadism and bizarre or unusual elements. Sometimes, a single traumatic event may constitute significant harm, for example, a violent assault, suffocation or poisoning. More often, significant harm results from an accumulation of significant events, both acute and long-standing, that interrupt, change or damage the child's physical and psychological development.
44. To understand and identify significant harm, it is necessary to consider:
- the nature of harm, either through an act of commission or omission;
- the impact on the child's health and development, taking into account their age and stage of development;
- the child's development within the context of their family and wider environment;
- the context in which a harmful incident or behaviour occurred;
- any particular needs, such as a medical condition, communication impairment or disability, that may affect the child's development, make them more vulnerable to harm or influence the level and type of care provided by the family;
- the capacity of parents or carers to meet adequately the child's needs; and
- the wider and environmental family context.
45. The reactions, perceptions, wishes and feelings of the child must also be considered, with account taken of their age and level of understanding. This will depend on effective communication, including with those children and young people who find communication difficult because of their age, impairment or particular psychological or social situation. It is important to observe what children do as well as what they say, and to bear in mind that children may experience a strong desire to be loyal to their parents/carers (who may also hold some power over the child). Steps should be taken to ensure that any accounts of adverse experiences given by children are accurate and complete, and that they are recorded fully.
What is risk in a child protection context?
46. Understanding the concept of risk is critical to child protection. For further information, see the section on Identifying and managing risk. This is supplemented by a National Risk Assessment Toolkit to support the assessment of children and young people.
47. In the context of this guidance, risk is the likelihood or probability of a particular outcome given the presence of factors in a child or young person's life. Risk is part and parcel of everyday life: a toddler learning to walk is likely to be at risk from some stumbles and scrapes but this does not mean the child should not be encouraged to walk. 'Risks' may be deemed acceptable; they may also be reduced by parents/carers or through the early intervention of universal services. At other times, a number of services may need to respond together as part of a co-ordinated intervention. Only where risks cause, or are likely to cause, significant harm to a child would a response under child protection be required. Where a child has already been exposed to actual harm, assessment will mean looking at the extent to which they are at risk of repeated harm and at the potential effects of continued exposure over time. Consideration should also be given to the risk posed by the potential perpetrator.
What is the Named Person, Lead Professional and the Child's Plan?
48. This guidance is rooted in the GIRFEC approach. GIRFEC is being implemented across Scotland, and Community Planning Partnerships will be required to implement the statutory elements of the approach in time for the Children and Young People (Scotland) Act 2014 coming into force. Statutory guidance will be issued to support practitioners in implementing the GIRFEC elements of the Act.
49. Under the GIRFEC approach, the Named Person role will be in place for every child and will be undertaken by an individual in universal services, i.e. health or education. Their role will be to act as the point of contact for children/ young people and families, and for other practitioners or members of the public. They will have a responsibility to promote, support and safeguard children's wellbeing. The role will form part of their day-to-day work, and most children will get all the help and support they need from their families, universals services, and their community. At various times during childhood and adolescence, many children and young people will need some extra help. The Named Person should be in a position to provide or access information, advice and support to children and young people from within their own service, and when necessary to request support from other services or agencies.
50. Where concerns about wellbeing require coordinated intervention from more than one service or agency, then a Lead Professional will be identified to take on that coordinating role. Where evidence suggests that a co-ordinated plan to provide a 'targeted intervention' involving two or more agencies will be necessary, a 'Child's Plan' should also be drawn up. The Named Person will either take on the role of Lead Professional themselves, or will agree with the partners involved in supporting the child / young person, who else should most appropriately take on the role of Lead Professional to manage the multi-agency Child's Plan. The Lead Professional may be drawn from any of the services or agencies who are partners to the Child's Plan (i.e. those services or agencies who are providing a targeted intervention to address the child's wellbeing needs). The choice of Lead Professional will be dependent on the needs of the child and the interventions and outcomes identified within the Child's Plan.
51. The Child's Plan should include a single plan of action and be managed and reviewed through a single meeting structure, even if the child is involved in several processes; for example, being looked after or having a co-ordinated support plan. The Lead Professional should ensure that the expertise of those involved is properly integrated along with evidence gathered through specialist assessments in order to give the fullest possible picture of the child's needs and how best they can be met. The Lead Professional is also responsible for co-ordinating any actions taken to improve the outcomes for the child. Further guidance on the roles of the Named Person and Lead Professional is available on the GIRFEC website.
52. Where a child is thought to be at risk of significant harm, the primary concern will be for their safety. The planning process must reflect this. The 'Child Protection Case Conference' is the term applied in this guidance to the single meeting in respect of a child about whom there are concerns about significant harm (for further information, see Part 3). It will be for the chair of the meeting to ensure that the discussion stays focused on specific concerns about the safety of the child, the actions required to reduce risk and whether the case should be referred to the Children's Reporter.
53. The Lead Professional will be responsible for ensuring the production of an agreed multi-agency Child's Plan, based on an assessment of needs and with a particular focus on the risks to the child and the interventions needed to reduce these risks. The Child's Plan will incorporate and, if necessary, amend any previous plans by individual agencies. The plan will identify when a review is needed and the Lead Professional will arrange for relevant materials to be produced in time for that review. Materials will be circulated to everyone involved, especially the child and family, and should be available in a range of formats to ensure that they are accessible to all including, for example, children or parents/carers with learning disabilities.
54. In child protection cases, the role of the Lead Professional will typically be taken by the local authority social worker. Where a child is believed to be at risk of significant harm, a 'Child Protection Plan' will be incorporated into the Child's Plan for as long as the risk of significant harm is deemed to last. The multi-agency group working with the child and their family will be known as the core group. For further information, see the sections on Managing risk, Child Protection Plans and Core groups.
55. The Lead Professional will be expected to:
- act as the main point of contact with the child and family to discuss the plan, how it is working and any changes in circumstances that may affect the plan;
- be a main point of contact for all practitioners who are delivering services to the child;
- make sure that the help provided is consistent with the Child's Plan and that services are not duplicated;
- work with the child, their family and relevant practitioners to make sure that the child's and family's views and wishes are heard and properly taken into account and, when necessary, to link the child and family with specialist advocacy;
- support the child and family to make use of help from practitioners and agencies;
- in conjunction with other services and the child and their family, monitor how well the Child's Plan is working and whether it is improving the child's situation;
- co-ordinate the provision of other help or specialist assessments as needed, with advice from other practitioners where necessary, and make arrangements for these to take place;
- arrange for relevant agencies to review together their involvement and amend the Child's Plan when necessary;
- make sure the child is supported through key transition points; and
- ensure a careful and planned transfer of responsibility when another practitioner becomes the Lead Professional, for example if the child's needs change or the family moves away.
56. Further guidance on the roles of the Lead Professional and the Named Person is available on the GIRFEC website.
What is the Child Protection Register?
57. All local authorities are responsible for maintaining a central register of all children - including unborn children - who are the subject of an inter-agency Child Protection Plan. This is called the Child Protection Register. The register has no legal status but provides an administrative system for alerting practitioners that there is sufficient professional concern about a child to warrant an inter-agency Child Protection Plan. Local authority social work services are responsible for maintaining a register of all children in their area who are subject to a Child Protection Plan, though the decision to put a child on the register will be based on a multi-agency assessment. The local authority may have its own register or maintain a joint register with other authorities. The Child Protection Register provides a central resource for practitioners concerned about a child's safety or care. If legal safeguards are required to protect the child or ensure compliance then a referral must be made to the Children's Reporter to allow consideration as to whether Compulsory Measures of Supervision are required.
58. The decision to place a child's name on the register should be taken following a Child Protection Case Conference where there are reasonable grounds to believe or suspect that a child has suffered or will suffer significant harm from abuse or neglect, and that a Child Protection Plan is needed to protect and support the child.
59. When placing a child on the register, it is no longer necessary to identify a category of registration relating to the primary type of abuse and neglect. Instead, the local authority should ensure the child's name and details are entered on the register, as well as record the areas of concern identified. The local authority should inform the child's parents or carers and, where the child has sufficient age and understanding, the child, orally and in writing, about the information held on the register and who has access to it. For further information on dealing with dissent and dispute resolution, see the section on Reaching decisions.
Removing a child from the Child Protection Register
60. If and when the practitioners who are working with the child and family decide that the risk of significant harm to the child has been sufficiently reduced and the child or young person is no longer in need of a 'Child Protection Plan', the local authority should remove the child from the Child Protection Register. The decision to remove a child's name will be made by a review CPCC at which all the relevant agencies are represented, as well as the child and their family. When a child's name is removed from the register, the child and their family must be informed.
61. Removal of a child's name from the register should not necessarily lead to a reduction or withdrawal of services or support to the child and family by any or all of the agencies. The risk of significant harm to the child may have receded, but the child may continue to require a range of support; this will form part of the single planning process for the child. At the point of deregistration, consideration should be given to whether a different Lead Professional should be appointed and, if so, arrangements made for the transfer to be agreed. The Child Protection Plan will, following de-registration, be removed from a Child's Plan.
Making use of the register
62. The register should be maintained by social work services. It should be held separately from agency records or case files and in secure conditions. Social work services should appoint a person to maintain and manage the register - generally known as the Keeper of the Child Protection Register. The keeper should make sure that all agencies know how to obtain access information from the register at any time. There should be 24-hour access to the register for all practitioners who need to make an enquiry about a child and online access for partner agencies wherever possible.
63. Local areas should have in place mechanisms and arrangements for practitioners making an enquiry to the register, including criteria for when this should be done and by whom. Local protocols should be in place to make sure information is shared and every relevant system and organisation is alerted when there is a child protection concern.
64. The Scottish Government maintains a list of current Keepers of Child Protection Registers in Scotland and contact points for Child Protection Registers in other parts of the UK. Local authorities should notify the Scottish Government of any changes so that the list can be kept up-to-date. All practitioners should notify the keepers of local registers of any changes to details relating to children named on the register.
65. The Keeper of the Child Protection Register will be responsible for attempting to trace a registered child whose whereabouts become unknown, including notifications and alerts to other areas and services.
Movement of children who are on the Child Protection Register
66. When families move between authority areas - whether temporarily or permanently - the original authority will notify the receiving authority immediately, then follow up the notification in writing. The receiving authority should immediately place the child's name on their local register. Where possible, the original authority should advise how long the child is expected to stay in the area. The authorities should make each other aware when the temporary registration is no longer required and why this is the case, for example because the child has returned to their home address. The Children and Young People (Scotland) Act 2014, contains provisions which, when enacted, will place a legal duty on Named Person Service providers to notify receiving service providers about a child moving into their area. Together with this responsibility, they should share any information that they have, which may be necessary for the child's wellbeing needs to be met. Where a Child's Plan - which incorporates a 'Child Protection Plan' - is in place the responsible authority for the child is, with few exceptions, the health board or local authority where the child resides. The guidance which will be issued on Child's Plans will provide further detail on this and should be referred to in order to check who the responsible authority for the plan is.
67. If the child is temporarily residing in another local authority, arrangements must be agreed for the monitoring/supervision of the child while they are in the area and for the implementation of the 'Child Protection Plan'. Assigning responsibility for monitoring is likely to depend on a number of practical considerations, for example, distance. Consultation between the two authorities is essential. Where agreement cannot be reached about monitoring arrangements, the matter must be immediately passed to senior managers for resolution. Whatever the difficulties and however these are resolved, the safety of the child is paramount and adequate monitoring arrangements must be in place. For further information on when a child on the register moves permanently, see the section on Child Protection Case Conferences.