1. Introduction and Background
1.1 This statutory guidance is published by the Scottish Ministers in accordance with section 31 of the Age of Criminal Responsibility (Scotland) Act 2019 ("the Act"). It contains information for the Police Service of Scotland and local authorities in relation to the use of the power conferred by section 28 of the Act, which provides a constable with the power to take a child under the age of 12 to a place of safety.
1.2 This power can be used if the constable has "reasonable grounds" to suspect that the child is behaving, or is likely to behave, in a way that is causing, or risks causing, significant harm to another person. The power can only be exercised if this is necessary to protect another person from an immediate risk of significant harm (or further significant harm, if they have already been harmed).
1.3 Where there is a need to safeguard and protect a child who may be at risk of harm, child protection procedures should be followed as set out in the National Guidance for Child Protection in Scotland.
1.4 The need to safeguard and promote the wellbeing of the child as a primary consideration applies to the powers set out in this guidance.
1.5 Section 31 of the Act sets out that the chief constable and each local authority must have regard to the guidance.
1.6 Link to the Age of Criminal Responsibility (Scotland) Act 2019:
1.7 The policy intention of the Act is to protect children from the harmful effects of early criminalisation, whilst ensuring that the child and their family receive the right support. Where the behaviour of a child under the age of 12 has caused significant harm and requires investigation, their rights must be properly recognised, upheld and protected in line with UNCRC.
1.8 The Scottish Government's vision of Scotland as the Best Place to Grow Up is one that extends to all children. A holistic approach to understanding and responding to the needs of children, including those involved in harmful behaviour, helps improve life chances, promotes more positive outcomes and makes Getting It Right For Every Child (GIRFEC) a reality.
1.9 A child under the age of 12 years cannot be treated as having committed an offence. To ensure a GIRFEC child-centred approach - whilst continuing to support the police service in their statutory obligation to investigate crime - the police and local authorities must work together to consider the wider influences on a child's developmental needs when thinking about their wellbeing. This is particularly pertinent during an emergency situation where consideration of a place of safety may be required.
1.10 The term "place of safety" is not unique to this legislation. Section 56 of the Children's Hearings (Scotland) Act 2011 makes provision for a constable to remove a child to a place of safety when there is a risk of significant harm to a child.
1.11 The criteria for taking a child to a place of safety sets a high bar test for use of the powers (set out in Section 2 of this guidance). They do not diminish the wider duties of a constable to respond to an incident or the needs of a child involved. When a constable's view is that a child should not be left unsupervised, it is essential that they leave the child in the care of a responsible adult. This is entirely consistent with UNCRC, the duties under sections 20 and 32 of the Police and Fire Reform (Scotland) Act 2012, and the wider legal context within which constables carry out their duties.
1.12 Where there is a concern that a child is at risk of significant harm or further such harm, child protection processes must be followed as set out in the National Guidance for Child Protection in Scotland.
1.13 Section 28 of the Act addresses the need to ensure police officers can intervene effectively to protect individuals and communities. It provides constables with the ability to take a child to a place of safety to ensure the safety of others who may be at immediate risk of significant harm or further such harm from the child.
1.14 Regardless of the legislation used, and the harm caused, it is important to keep a keen focus on the immediate needs of the child.
1.15 The removal of a child raises issues in relation to the child's right to liberty (Article 37(b) UNCRC and Article 5 ECHR). Accordingly, removal to a place of safety must only be used as a measure of last resort, in relation to the protection of any other person from an immediate risk of significant harm (or further such harm). The child can only be kept in a place of safety for so long as is necessary to put in place arrangements for the care and protection of the child or for an order under section 63 of the Act, authorising the taking of intimate samples from the child, to be obtained. In either case, the child must not be kept in the place of safety for longer than 24 hours. If these safeguards are not adhered to, then the child's right to liberty will be infringed.
1.16 Due to the unintended consequences and additional trauma removing a child to a place of safety can have on a child, constables should use their professional judgement to establish whether the use of section 28 powers is necessary and proportionate. The ability to invoke section 28 is to be balanced against the requirement, necessity and justification of doing so.
1.17 Remaining within the family home should always be the priority where appropriate. It is anticipated that in most situations a constable comes across and where the child consents, the constable will return a child to their home and a place of safety will not be required. Where there is doubt as to the suitability of the person to whom the child is being returned, then consultation with local authority should be carried out.
1.18 Where the child does not consent to being taken home, their normal place of residence can be used as a place of safety where the test for exercise of the section 28 power is met. There may be considerations around whether this is a suitable place, but it is for police to determine, in consultation with the local authority, whether this is suitable in the individual case.
1.19 Where another place of safety is required, in many situations it will be safe and in the child's best interests to be placed within the wider family. However, the optimal place of safety will depend on the needs of each child and contextual factors. Due consideration must been given to the capacity and commitments of potential carers and care settings; and to the needs of and risks relating to other children in a potential placement. This is why consultation with the local authority is key.
1.20 Police officers and social workers (and any other professionals involved) will be alert to the child's individual needs and should follow trauma-informed principles in any interactions with the child.
1.21 Care experienced children may be particularly vulnerable due to traumatic experiences and the likelihood of their disproportionate contact with formal systems and the police. Part 9 of the Children and Young People (Scotland) Act 2014 requires Corporate Parents to be alert to matters which adversely impact on looked after children and to promote their interests.