Age assessment practice guidance for Scotland

Appendix 5: Relevant Legislation and Guidance

The requirement for conducting an age assessment is derived from Section 55 of the Borders, Citizenship and Immigration Act 2009 which details the duties regarding the welfare of children. Responsibility for carrying out assessments, where there is uncertainty or disputes about age, sits with the relevant local authority. How local authorities carry out this out will be shaped by both the body of case law which determines the parameters and minimum standards that should apply and by agency expectations of assessment practice.

In delivering services professionals need to ensure that practice is compliant with children’s rights and legislation.

In 1991 the UK ratified the United Nations Convention on the Rights of the Child which details the Articles on children’s rights including the right to protection and to have their best interests a primary consideration in all state interventions (under 18s). A migrant child should be afforded the same levels of protection as an indigenous child.

In Scotland the relevant statutes that refer to the safeguarding and support of children and young people are:

• the Children (Scotland) Act 1995;
• the Protection of Children (Scotland) Act 2003; the Children’s Hearing (Scotland) Act 2011;
• the Children and Young People (Scotland) Act 2014 ;and the Human Trafficking and Exploitation (Scotland) Act 2015.

Where an asylum seeking young person is believed to be a victim of trafficking, Section 12 of the Human Trafficking and Exploitation (Scotland) Act 2015 must be adhered to. Section 12 stipulates that, where a relevant authority (including a local authority) has reasonable grounds to believe that a person may be a victim of an offence of human trafficking and the authority is not certain of the person’s age but

has reasonable grounds to believe that the person may be a child, the authority must assume that the person is a child for the purposes of exercising its functions under

the relevant enactments until an assessment of the person’s age is carried out by a local authority, or the person’s age is otherwise determined.

With regard to guidance which has a general relevance for social workers undertaking work with asylum seeking children, the following should be noted: The National Guidance for Child Protection in Scotland 2021 - updated 2023 - gov.scot describes the additional risks and vulnerabilities experienced by young asylum seekers and provides practice guidance in relation to their treatment by statutory and voluntary agencies.

The Scottish Government previously published in 2013 Inter-agency Guidance for Child Trafficking, which provides information and guidance to all members of the children’s workforce so that professionals and others are able to identify trafficked children and make appropriate referrals so that victims can receive protection and support.