Part 1: The Context for Child Protection
Key Definitions and Concepts
1.1 This chapter aims to collate and summarise definitions and explanations of key terms applicable to child protection processes. Relevant legislative provisions provide full and accurate legal definitions.
1.2 In general terms, for the purposes of this Guidance, the protection of children and young people includes unborn babies, and children and young people under the age of 18 years.
1.3 It is important to note that for the purposes of the UNCRC, the rights apply to anyone under the age of 18. Article 1 states that this is the case unless majority is attained earlier under the law applicable to the child. Scottish Government intends to incorporate UNCRC within domestic law.
1.4 It is essential that Child Protection Committees and Adult Protection Committees work together to best protect children and young people at key transition points, for example, transition from children's to adult services.
1.5 The independent legal status of a child commences at birth. In any action to safeguard and protect an unborn child, the needs and rights of the mother must be taken in to account.
1.6 The needs, rights, and mutual significance of siblings should be considered in any process that has a focus on a single child. (https://www.gov.scot/publications/staying-together-connected-getting-right-sisters-brothers-national-practice-guidance/)
Definitions of 'child'
1.7 While child protection procedures may be considered for a person up to the age of 18, the legal boundaries of childhood and adulthood are variously defined. There are overlaps.
1.8 In Part 1 of the Children (Scotland) Act 1995, which deals with matters relating to parents, children and guardians, a child is generally defined as someone under the age of 18, but most of the provisions which deal with parental rights and responsibilities apply only to children under the age of 16.
1.9 Chapter 1 of Part 2 deals with support for children and families and includes local authorities' duties in respect of looked after children and children 'in need'. For these purposes a child is also defined as someone under the age of 18.
1.10 Section 67 of The Children and Young People (Scotland) Act 2014 inserted a new section, 26A, into the Children (Scotland) Act 1995. The current law provides that a young person born on or after 1 April 1999 who is looked after in foster, kinship or residential care is generally eligible to remain in their current care placement, and be provided with accommodation and other assistance by the local authority, until they turn 21. This is called Continuing Care.
1.11 The Children's Hearings (Scotland) Act 2011 contains provisions about 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, section 199 of this Act provides qualifications as follows:
- in the ground for referral to a hearing under section 67(2)(o) (failure to attend school), 'child' means a person who is of school age, and school age has the definition in section 31 of the Education (Scotland) Act 1980
- 'child' includes any child who has turned 16 after being referred to the Principal Reporter, until the Principal Reporter makes a decision not to arrange a hearing, or a hearing makes a decision to discharge a referral, or until a Compulsory Supervision Order is made
- children who are subject to a Compulsory Supervision Order under the Act on or after their 16th birthday are also treated as children until they reach the age of 18, or until order is terminated if this 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 in place is terminated, or the child turns 18
1.12 The Human Trafficking and Exploitation (Scotland) Act 2015 defines a child as a person under 18 years. When s38 of this Act is implemented there will be a statutory duty on certain public bodies to notify Police Scotland about possible victims of human trafficking. The sexual abuse of trust offence applies to persons over 18 who are in a defined position of trust (such as teachers, care workers and health professionals) intentionally engaging in sexual activity towards a person under 18 years (Sexual Offences (Scotland) Act 2009, s42). The Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 also defines a child as a person under 18 years in relation to sexual exploitation of children under the age of 18 through prostitution or pornography.
1.13 Under the Children and Young People (Scotland) Act 2014, a 'child' is defined, for the purposes of all Parts of that Act, as someone who has not yet attained the age of 18. The individual young person's circumstances and age will dictate what legal protections are available. For example, the Adult Support and Protection (Scotland) Act 2007 can be applied to over-16s when the criteria are met.
1.14 Subject to sections 32(3) and 33(2) and (4) of the Education (Scotland) Act 1980, a person is of school age if they have attained the age of five years and have not attained the age of sixteen years.
1.15 Local services must ensure sufficient continuity and co‑ordination of planning and support for each vulnerable young person at risk of harm as they make their individual transitions to adult life and services. 'Transitions' may be considered by services to be a 'handover' between services, and yet for a young person they are multi-dimensional. Phases of enhanced risk may relate to emotional and relational transitions that occur some time after changes in service, worker or home base.
1.16 Where a young person between the age of 16 and 18 requires support and protection, services will need to consider which legal framework best fits each persons' needs and circumstances.
1.17 The Mental Health (Care and Treatment) (Scotland) Act 2003 follows the Children (Scotland) Act 1995 in defining a child as a person who is under the age of 18. This does not affect a young person's ability to consent to medical treatment, but this legislation ensures that additional safeguards are in place when a person aged under 18 needs compulsory care and treatment in relation to their mental health.
1.18 The Adults with Incapacity (Scotland) Act 2000 safeguards people who do not have capacity in relation to making decisions about their welfare and/or finances. This legislation defines 'adults' as those who have attained the age of 16.
1.19 The Adult Support and Protection (Scotland) Act 2007 also applies to those aged 16 and over as 'adult' is defined as an individual aged 16 or over. An 'adult at risk' is someone who:
- is unable to safeguard their own wellbeing, property, rights or other interests
- is at risk of harm
- and because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected
1.20 An adult is at risk of harm if another person is causing (or is likely to cause) the adult to be harmed, or the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm. The entirety of a person's particular circumstances can combine to make them more vulnerable to harm than others. This legislation primarily places an emphasis on support but also provides a framework for intervention if someone requires protection. A revised Code of Practice will be published in 2021.
1.21 When it comes to health procedure or treatment, the Age of Legal Capacity (Scotland) Act 1991 (section 2 (4)) gives medical practitioners authority to make a judgement about the level of understanding of a child: "A person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment."
1.22 Universal services should seek to identify pregnant women who will require additional support. There must be local assessment and support processes for high-risk pregnancies (pre-birth safeguarding – Part 4).
Definitions of parents and carers
1.23 A 'parent' is someone who is the genetic or adoptive mother or father of the child. This is subject to the Human Fertilisation and Embryology Act 2008, which sets out which persons are to be treated as the parents of a child conceived through assisted reproduction.
1.24 All mothers automatically get parental responsibilities and rights (PRRs) for their child. A father also has PRRs automatically if he is or was married to the mother at the time of the child's conception, or subsequently. If a father is not married to the mother, he will acquire PRRs if he is registered as the child's father on the child's birth certificate, which requires the mother's agreement as this must have been registered jointly with the child's mother. A father can also acquire PRRs by completing and registering a Parental Responsibilities and Rights agreement with the mother or obtaining a court order.
1.25 Same-sex couples can adopt a child together. A same-sex partner has no automatic parental responsibilities and rights for their partner's children. If a child is conceived by donor insemination or fertility treatment on or after 6 April 2009, a same-sex partner can be the second legal parent. The second parent may hold parental responsibilities and rights if they were in married or in a civil partnership with the mother at the time of insemination/fertility treatment, or if the person is named as the other parent on the child's birth certificate and the birth was registered post 4 May 2006, or if the person completes and registers a Parental Responsibilities and Rights agreement with the mother. It is possible for a same sex partner to apply for parental responsibilities if none of these conditions apply. Parental responsibilities and rights.
1.26 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. Parents continue to hold parental rights for a child unless and until these are removed. If this happens, it must be clear who does hold parental rights and responsibilities.
1.27 A 'carer' is someone other than a parent who is looking after a child. A carer may be a 'relevant person' within the children's hearing system. 'Relevant persons' have extensive rights within the children's hearing system, including the right to attend children's hearings, receive documents relating to hearings and appeal decisions taken within those proceedings. Relevant persons are 1) parents, whether or not they have parental rights and responsibilities (unless their parental rights and responsibilities have all been removed), 2) other persons, not parents, who have parental rights and responsibilities for a child, and 3) any person who has been deemed to be a relevant person by a children's hearing or pre-hearing panel on the basis that the person has, or has recently had, significant involvement in the upbringing of the child (section 200 and section 81(3) in the Children's Hearings (Scotland) Act 2011).
1.28 A 'kinship carer' is a carer for a child looked after by the local authority, where the child is placed with the kinship carer in accordance with Regulation 10 of the Looked After Children (Scotland) Regulations 2009 ('the 2009 Regulations'). In order to be approved as a kinship carer, the carer must be 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 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.
1.29 Before making such a decision, the authority must, so far as reasonably practicable, obtain and record in writing the information specified in Schedule 3 of 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 intended to ensure placements are safe, in the child's best interests, and subject to regular review.
1.30 Kinship care placements of looked after children made under the 2009 Regulations 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 public foster carer. Foster carer means a person approved by a local authority as a suitable carer for the child. A decision to approve a person as a foster carer must be made in accordance with regulation 22 of the 2009 Regulations. A kinship carer or foster carer may or may not have parental rights and responsibilities.
1.31 Foster carers and kinship carers require support and partnership in the care and protection of the children placed with them. This may include help managing potential risks posed by parents or other family members. Kinship carers may have ambivalent feelings about the circumstances that have resulted in them having to care for a child or young person and parents may find it difficult to accept or respect the carer's role. Working together in this context is likely to require a focus on the child's needs and experience, sensitivity, mediation skills, and shared understanding about roles and boundaries. Part 13 of the Children and Young People (Scotland) Act 2014 describes eligibility for assistance in kinship care for children including those subject to a kinship care order, or at risk of being looked after, and for kinship carers, including those in whose favour a kinship care order subsists, or who may be applying for, or considering application for such an order.
1.32 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. Private fostering in Scotland: practice guidance for local authority children's services Be safe, be sure (Scottish Government (2013)).
What is child abuse and child neglect?
1.33 Abuse and neglect are forms of maltreatment. Abuse or neglect may involve inflicting harm or failing to act to prevent harm. Children may be maltreated at home; within a family or peer network; in care placements; institutions or community settings; and in the online and digital environment. Those responsible may be previously unknown or familiar, or in positions of trust. They may be family members. Children may be harmed pre-birth, for instance by domestic abuse of a mother or through parental alcohol and drug use.
1.34 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.
1.35 There may be some variation in family, community or cultural attitudes to parenting, for example, in relation to reasonable discipline. Cultural sensitivity must not deflect practitioners from a focus on a child's essential needs for care and protection from harm, or a focus on the need of a family for support to reduce stress and associated risk.
1.36 Emotional abuse is persistent emotional ill treatment that has severe and persistent adverse effects on a child's emotional development. 'Persistent' means there is a continuous or intermittent pattern which has caused, or is likely to cause, significant harm. Emotional abuse is present to some extent in all types of ill treatment of a child, but it can also occur independently of other forms of abuse. It may involve:
- conveying to a child that they are worthless or unloved, inadequate or valued only in so far as they meet the needs of another person
- exploitation or corruption of a child, or imposition of demands inappropriate for their age or stage of development
- repeated silencing, ridiculing or intimidation
- demands that so exceed a child's capability that they may be harmful
- extreme overprotection, such that a child is harmed by prevention of learning, exploration and social development
- seeing or hearing the abuse of another (in accordance with the Domestic Abuse (Scotland) Act 2018)
1.37 Child sexual abuse (CSA) is an act that involves a child under 16 years of age 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.
1.38 For those who may be victims of sexual offences aged 16-17, child protection procedures should be considered. These procedures must be applied when there is concern about the sexual exploitation or trafficking of a child.
1.39 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, in watching sexual activities, using sexual language towards a child, or encouraging children to behave in sexually inappropriate ways.
1.40 Child sexual exploitation (CSE) is a form of child sexual abuse. It occurs where an individual or group takes advantage of an imbalance of power to coerce, manipulate or deceive a person under 18 into sexual activity in exchange for something the victim needs or wants, and/or for the financial advantage or increased status of the perpetrator or facilitator. The victim may have been sexually exploited even if the sexual activity appears consensual. Child sexual exploitation does not always involve physical contact. It can also occur through the use of technology. Children who are trafficked across borders or within the UK may be at particular risk of sexual abuse.
1.41 Criminal exploitation refers to the action of an individual or group using an imbalance of power to coerce, control, manipulate or deceive a child or young person under the age of 18 into any criminal activity in exchange for something the victim needs or wants, or for the financial or other advantage of the perpetrator or facilitator. Violence or the threat of violence may feature. The victim may have been criminally exploited, even if the activity appears consensual. Child criminal exploitation may involve physical contact and may also occur through the use of technology. It may involve gangs and organised criminal networks. Sale of illegal drugs may be a feature. Children and vulnerable adults may be exploited to move and store drugs and money. Coercion, intimidation, violence (including sexual violence) and weapons may be involved.
1.42 Child trafficking involves the recruitment, transportation, transfer, harbouring or receipt, exchange or transfer of control of a child under the age of 18 years for the purposes of exploitation. Transfer or movement can be within an area and does not have to be across borders. Examples of and reasons for trafficking can include sexual, criminal and financial exploitation, forced labour, removal of organs, illegal adoption, and forced or illegal marriage.
1.43 Neglect consists in persistent failure to meet a child's basic physical and/or psychological needs, which is likely to result in the serious impairment of the child's health or development. There can also be single instances of neglectful behaviour that cause significant harm. Neglect can arise in the context of systemic stresses such as poverty, and is an indicator of both support and protection needs.
1.44 'Persistent' means there is a pattern which may be continuous or intermittent which has caused, or is likely to cause significant harm. However, single instances of neglectful behaviour by a person in a position of responsibility can be significantly harmful. Early signs of neglect indicate the need for support to prevent harm.
1.45 The GIRFEC SHANARRI indicators set out the essential wellbeing needs. Neglect of any or all of these can impact on healthy development. Once a child is born, neglect may involve a parent or carer failing to provide adequate food, clothing and shelter (including exclusion from home or abandonment); to protect a child from physical and emotional harm or danger; to ensure adequate supervision (including the use of inadequate caregivers); to seek consistent access to appropriate medical care or treatment; to ensure the child receives education; or to respond to a child's essential emotional needs.
1.46 Faltering growth refers to an inability to reach normal weight and growth or development milestones in the absence of medically discernible physical and genetic reasons. This condition requires further assessment and may be associated with chronic neglect.
1.47 Malnutrition, lack of nurturing and lack of stimulation can lead to serious long-term effects such as greater susceptibility to serious childhood illnesses and reduction in potential stature. For very young children the impact could quickly become life-threatening. Chronic physical and emotional neglect may also have a significant impact on teenagers.
Female genital mutilation
1.48 This extreme form of physical, sexual and emotional assault upon girls and women involves partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. Such procedures are usually conducted on children and are a criminal offence in Scotland. FGM can be fatal and is associated with long-term physical and emotional harm.
1.49 A forced marriage is a marriage conducted without the full and free consent of both parties and where duress is a factor. Duress can include physical, psychological, financial, sexual, and emotional abuse. Forced marriage is both a child protection and adult protection matter. Child protection processes will be considered up to the age of 18. Forced marriage may be a risk alongside other forms of so called 'honour-based' abuse (HBA). HBA includes practices used to control behaviour within families, communities, or other social groups, to protect perceived cultural and religious beliefs and/or 'honour'.
What is child protection?
1.50 Child protection refers to the processes involved in consideration, assessment and planning of required action, together with the actions themselves, where there are concerns that a child may be at risk of harm. Child protection guidance provides overall direction for agencies and professional disciplines where there are concerns that a child may be at risk of harm. Child protection procedures (as described in Part 3) are initiated when police, social work or health professionals determine that a child may have been abused or may be at risk of significant harm. Child protection involves:
- immediate action, if necessary, to prevent significant harm to a child
- inter-agency investigation about the occurrence or probability of abuse or neglect, or of a criminal offence against a child. Investigation extends to other children affected by the same apparent risks as the child who is the subject of a referral
- assessment and action to address the interaction of behaviour, relationships and conditions that may, in combination, cause or accelerate risks
- focus within assessment, planning and action upon listening to each child's voice and recognising their experience, needs and feelings
- collaboration between agencies and persistent efforts to work in partnership with parents in planning and action to prevent harm or reduce risk of harm
- recognition and support for the strengths, relationships and skills within the child and their world in order to form a plan that reduces risk and builds resilience
1.51 Child protection is part of a continuum of collaborative duties upon agencies working with children. The Getting it right for every child (GIRFEC) approach promotes and supports planning for such services to be provided in the way which best safeguards, supports and promotes the wellbeing of children, and ensures that any action to meet needs is taken at the earliest appropriate time to prevent acute needs arising. The planning of systems should ensure that action is integrated from the point of view of recipients.
1.52 Child protection processes fall at the urgent end of a continuum of services which include prevention and early intervention. The GIRFEC principles and approach are consistently applicable. Children who are subject to child protection processes may already be known to services. They may already have a child's plan in place. Child protection processes should build on existing knowledge, strengths in planning and partnerships to reduce the risk of harm, and to meet the child's needs.
1.53 Preventative and protective work may be needed at the same time. Preventative, restorative, supportive, collaborative and therapeutic approaches do not stop because compulsory measures or urgent protective legal steps are taken. A tailored blend of care and professional authority may be needed whether a child at risk is at home with family or accommodated, or when the child is to transition between placements or to be reunified with birth family after a placement away from home.
1.54 The level of risk a child is exposed to can shift, often rapidly, as circumstances change or information emerges. Services may be organised in response to 'thresholds' of risk. However, the way children and families act and think is not bound within such categories. Safe systems allow for a degree of flexibility as professional understanding of need and risk evolves. Safe systems ensure sufficient continuity of support when the immediate urgency to protect is alleviated. Safety may depend upon accessible support when need arises over the longer term. Appendix E signposts UNCRC articles. Protection of children from all forms of abuse, neglect, exploitation and violence is inextricable from protection of the full range of each child's UNCRC and human rights.
What is harm and significant harm in a child protection context?
1.55 Protecting children involves preventing harm and/or the risk of harm from abuse or neglect. Child protection investigation is triggered when the impact of harm is deemed to be significant.
1.56 'Harm' in this context refers to 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. 'Development' can mean physical, intellectual, emotional, social or behavioural development. 'Health' can mean physical or mental health. Forming a view on the significance of harm involves information gathering, putting a concern in context, and analysis of the facts and circumstances.
1.57 For some actions and legal measures the test is 'significant harm' or risk of significant harm. There is no legal definition of significant harm or the distinction between harm and significant harm. The extent to which harm is significant will relate to the severity or anticipated severity of impact upon a child's health and development.
1.58 It is a matter for professional judgement as to whether the degree of harm to which the child is believed to have been subjected, is suspected of having been subjected, or is likely to be subjected is 'significant'. Judgement is based on as much information as can be lawfully and proportionately obtained about the child, his or her family and relevant context, including observation. Assessment frameworks and tools, some of which may be specialised, can assist professional judgement. The way in which information about children's developmental needs, parenting capacity, and family and community context is recorded will help professionals analyse the child's needs, and the capacity of the parents or carers. Purposeful and accurate chronologies assist in analysis and decision-making (Chronologies – Part 3).
1.59 Professional judgement entails forming a view on the impact of an accumulation of acts, events and gaps or omissions, and sometimes on the impact of a single event. Judgement means making a decision about a child's needs, the capacity of parents or carers to meet those needs, and the likelihood of harm, significant or otherwise, arising.
1.60 A National Risk Assessment Toolkit is a resource which integrates the GIRFEC National Practice Model in a generic approach to assessment of risk, strength and resilience in the child's world.
1.61 When there are concerns that a child may have experienced or may experience significant harm, and these concerns relate to the possibility of abuse or neglect, then police or social work must be notified. Along with other relevant services they will form a view as to whether the harm is or is likely to be significant (Information sharing: inter-agency principles). Professionals must also consider what harm might come to a child from failing to share relevant information, within the terms of their respective duties. Police and health also have single-agency duties in relation to protection from harm.
1.62 In assessing whether harm is or may become 'significant', as indicated in Part 3, it will be relevant to consider:
- the child's experience, needs and feelings as far as they are known
- the nature, degree and extent of physical or emotional harm apparent
- the duration and frequency of abuse and neglect
- overall parenting capacity
- the apparent or anticipated impact given the child's age and stage of development.
- extent of any premeditation
- the presence or degree of threat, coercion, sadism and any other factors that may accentuate risk to do with child, family or wider context
1.63 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.
1.64 The reactions, perceptions, wishes and feelings of the child must also be considered, with account taken of their age, language development 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 or 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 as accurate and complete as possible, and that they are recorded fully.
1.65 Where there is evidence of harm relating to parental behaviour, assessing risk of future significant harm is enhanced by assessment of parental capacity to change. This consists in analysis of what helps and hinders the parents to change their behaviour. It also involves assessment of progress within supported opportunities for parents to resolve key difficulties, within an agreed timescale that relates to the child's needs.
1.66 Significant harm is not the threshold for referral to the Principal Reporter. The test for referral to the Principal Reporter, in the case of those with a statutory duty (such as, local authority and police) to refer is, namely, that i) the child is in need of protection, guidance, treatment or control, and ii) it might be necessary for a Compulsory Supervision Order to be made. The grounds upon which a child can be referred to a children's hearing are set out in s67 of the Children's Hearings (Scotland) Act 2011. They define a broad range of harms or potential harms that might individually or in combination have significant effect, including, for example, exposure to a person who may cause harm, or lack of parental care which may cause unnecessary suffering or serious impairment to health and development.
1.67 A Compulsory Supervision Order may include a secure accommodation authorisation. Although risk of significant harm is not the test for such an order, the threshold for such an order is similarly high. The test is that the child has previously absconded and is likely to abscond again and, if the child were to abscond, it is likely that the child's physical, mental or moral welfare would be at risk, or that the child is likely to engage in self-harming conduct or likely to cause injury to another person.
1.68 Significant harm is the test for the making of a child protection order in terms of the Children's Hearings (Scotland) Act (2011).
1.69 Likely significant harm is the test set out in the Children's Hearings (Scotland) Act 2011 for decisions which can be made in some circumstances, by children's hearings, Sheriffs and Reporters, not to provide information to a person who would otherwise be entitled to that information.
1.70 Harm is included in relation to conditions for medical examination orders in terms of risk of self-harm (s87 of the 2011 Act).
1.71 The 2011 Act recognises that 'serious harm' (whether physical or not) may occur as a result of a child's actions towards others. The need to safeguard and promote the welfare of the child throughout childhood is the paramount consideration for a children's hearing, pre-hearing panel or Sheriff, unless the hearing, pre-hearing panel or Sheriff considers that a decision is necessary for the purpose of protecting members of the public from serious harm (whether physical or not). In such situations, the child's welfare is 'a primary' but not 'the paramount' consideration.
1.72 Reflection and supervision play a role in supporting careful, balanced and legitimate steps. This is essential given the contested, complex and partial information that may be available, and as a result of the pressure of time when a situation is urgent. Variability in judgement can unfold from differences in presentation and source of concerns. Judgement may also be affected by differences in agency policy, leadership style, professional skills, experience, values, intuition and assumptions. There may be differences in personal or collective emotional response affecting judgement. The availability of experienced peer support is a quietly influential factor, the presence or absence of which can affect the perceptions and professional resilience of everyone involved in child protection. For these reasons, the likelihood and significance of harm will be aided by standard operating procedures, guidance and frameworks. Safe judgement also requires the development and preservation of reflective practice, supervision and teamwork under stressful conditions.
1.73 In summary, child protection involves activity to assess and prevent harm from abuse, neglect, maltreatment and exploitation. Inter-agency judgement about whether harm is significant will evolve from assessment activity in which the child is central. Significant harm remains the test for some legal steps and actions. However, the threshold is not precisely defined in law or in guidance. Professionals need to be open minded and clear about the evidence and analysis that informs professional judgement regarding potential harm to a child at a certain stage in time, recognising that risk factors interact and assessments must be reviewed to reflect change.
What is a named person, lead professional and child's plan?
1.74 The Getting it right for every child (GIRFEC) approach underpins both preventative and child protection processes. This includes an identified point of contact to provide early support, advice and access to services, a shared approach to assessment and consideration of wellbeing, and a shared response to identified needs, included planning for children across services where needed. Refreshed guidance describing GIRFEC policy and practice will be published in 2021.
1.75 Scottish Government's commitment to the UNCRC is built on practical foundations in universal services. Parents need to know who they can contact when they need access to relevant support for their child's wellbeing. Within the GIRFEC approach, these foundations are carried out through the role of a named person who is able to provide a clear point of contact within universal services, if a child, young person or their parents want information, advice or help.
1.76 Local arrangements and the term used to describe this role or function may vary from area to area. However, in general, the named person or equivalent function is provided by a person known to the child and family from universal services. This is usually a health visitor from birth to school age, a head teacher or deputy during primary school years and a head teacher, deputy, pastoral care teacher or guidance teacher during secondary school years.
1.77 The family may be offered direct support from their named person, or access to relevant services offered by the NHS, local authorities and Third Sector or community groups. At times during childhood and adolescence, some children and young people will need some extra help. A named person can provide or access information, advice and support to children and young people from within their own service, and when necessary request support from other services or agencies.
1.78 However, when the complexity or urgency of need requires co‑ordinated intervention from more than one service or agency, it is crucial that a lead professional is identified to take on that coordinating role. A 'child's plan' should be developed.
1.79 The partners involved in supporting the child need to agree which professional takes on the lead professional role, co‑ordinating a multi-agency child's plan. The lead professional can be drawn from any of the services or agencies which are partners to the child's plan.
1.80 Children and families may be involved in several formal processes. For example they may be looked after and have a Child Protection Plan, and/or a co‑ordinated support plan. They should experience a co‑ordinated process, managed as far as possible by a single meeting structure, with due respect for principles of lawful information sharing. Family understanding and positive engagement is likely to depend on the extent to which they can hear and be heard, and become partners in 'joined up' planning.
1.81 Where a child is thought to be at risk of harm, their safety is the priority concern and assessment and planning processes will reflect this.
1.82 A Child Protection Planning Meeting (CPPM) is an inter-agency meeting which is convened when there are concerns that a child is or may be at risk of significant harm. Part 3 of this Guidance describes activities that precede a CPPM. The Chair ensures the CPPM supports engagement of parents and all relevant agencies in assessment of risks and strengths, and in planning next steps. This includes potential referral to the Principal Reporter.
1.83 A lead professional will be responsible for ensuring the production and review of an agreed multi-agency child's plan as detailed in Part 3 of this Guidance. This should integrate information from previous plans by individual agencies as appropriate. Reports for a child's planning meeting or for a CPPM should be circulated to everyone involved, especially the child and family. Reports should be available and presented so that they are accessible to all. This includes, for example, children or parents or carers with learning disabilities.
1.84 In child protection cases, the role of a 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 should 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 Part 3 of this Guidance.
1.85 A lead professional will:
- ensure the child's voice and experience is heard and his/her views recorded
- work with the child and family, ensuring shared understanding about the plan and about how it is working from the perspective of child and family
- track and respond to changes in circumstances that may affect the plan
- be a 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
- be a bridge to engagement with and support from other agencies
- offer to link the child and family with specialist advocacy when appropriate
- monitor how well the child's plan is working
- co‑ordinate the provision of other help or specialist assessments as needed
1.86 A lead professional will make sure the child is supported through significant points of transition. They will ensure a planned transfer of responsibility when another practitioner becomes the lead professional, for example if the child's needs change or the family moves away.
What is the child protection register?
1.87 All local authorities are responsible for maintaining a central child protection register for all children who are the subject of an inter-agency Child Protection Plan. This includes unborn babies. The register has no legal status. This is 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. Some authorities may choose to maintain a joint register with other authorities. The decision to place a child's name on the register should be taken following multi-agency assessment and a Child Protection Planning Meeting, as detailed in Part 3 of this Guidance.
1.88 A child may be placed on the register if 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. When placing a child on the register, it is not necessary to identify a category of registration relating to the primary type of abuse and neglect. 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 verbally and in writing about the information held on the register and who has access to it.
1.89 If a Compulsory Supervision Order is likely to be required to meet the child's needs for protection, guidance, treatment or control, or to ensure compliance, then a referral must be made to the Principal Reporter to allow consideration as to whether a children's hearing should be arranged.
1.90 Police Scotland has developed a child protection flag for its interim Vulnerable Persons Database (iVPD). This alerts police call-handling staff and police officers attending incidents (whether physical or not) that there has been sufficient previous professional concern about a child to warrant placing them on the child protection register. It also provides details of the lead local authority contact. Local authorities continue to be responsible for maintaining a child protection register for children in their areas.
Removing a child from the child protection register
1.91 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's name from the child protection register. The decision to remove a child's name will be made through a review CPPM 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.
1.92 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 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 de-registration, consideration should be given to whether a different lead professional should be appointed. If so, arrangements made for the transfer will be agreed. Following de-registration, the child's plan will be amended to reflect the revised assessment of risk and need.
Making use of the register
1.93 The register should be maintained by social work services. It is a distinct record. It must be securely kept, accurate at all times, and comply with the law. Social work services should ensure that local roles and systems provide for maintenance, management and appropriate 24-hour access for the purposes of child protection.
1.94 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.
1.95 The Scottish Government maintains a list of 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.
1.96 The person(s) accountable for the 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
1.97 When families move between local authority areas the original local authority will notify the receiving authority immediately. A written notification must follow. The receiving local authority should immediately place the child's name on their local register. Where possible, the original local authority should advise how long the child is expected to stay in the area. The authorities should make each other aware when and why temporary registration is no longer required. Information pertinent to keeping a child safe must be shared. Where 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. Further detail on transfer between areas may be found in Part 3.
1.98 If the child is temporarily residing in another local authority, preparatory communication between authorities is necessary. Arrangements must be agreed for the monitoring, supervision and implementation of the Child Protection Plan. If agreement cannot be reached about arrangements, senior managers should be involved to negotiate a resolution that prioritises the child's safety.
Principles and Standards for Child Protection
1.99 Agencies and professional groups may have procedures and guidelines relating to their responsibilities. However, child protection is a shared responsibility. This section of the Guidance outlines inter-agency values and standards in order to promote a shared approach.
Safety and rights
1.100 The Scottish Government supports implementation of UNCRC Rights and intends to incorporate UNCRC in Scots law. The Convention Rights are inter-related and inter-dependent. For example, rights to protection from abuse, neglect, exploitation and violence are inextricable from consideration of best interests and rights in relation to participation, non-discrimination, survival, recovery, parental support, and support for healthy development. The UNCRC informs the GIRFEC approach (Scottish Government/Aldgate 2013). An appended table signposts UNCRC Articles relevant to child protection. An introduction to the Convention and the articles in full text and in accessible form may be accessed at https://cypcs.org.uk/rights/uncrc/.
1.101 Public authorities should promote the upbringing of children by their families, in so far as is consistent with safeguarding and promoting the child's welfare. Each child has a right to be treated as an individual. Every child who can form a view on matters affecting them has the right to express those views if they so wish. Those views should be given due weight in accordance with a child's age and maturity. Any intervention by a public authority in the life of a child must be properly justified. Connections between safety and rights are further illustrated in The Promise. Children must be heard in decision-making that affects them. Children feel safe when the relationships which they need are recognised, supported and sustained.
1.102 The UNCRC (Article 23) protects the rights of disabled children and the UN Convention on the Rights of Persons with Disabilities, ratified by the UK Government in 2009, states that in order for disabled children to be able to realise the rights mentioned above, they need to be provided with disability and age-appropriate assistance. If a child has learning disabilities or needs additional support with communication, consideration must be given to the best way to involve the child.
1.103 For parents with learning disabilities or additional communication needs, consideration should be given to the best way to involve them, as detailed in Part 4 of this Guidance.
1.104 The child's experience, views and needs are central within child protection processes. Talking with and listening to children means attention not only to their words, but also to their experience, needs, wishes and feelings. Listening includes attention to non-verbal communication, and to physical and behavioural responses to their care and environment. Understanding communication involves consideration of the timing and context of expressed words and feelings.
1.105 Children should be involved in decision-making in ways that are attuned to the needs and understanding of each child.
Culture, community and family context
1.106 It is essential to consider the child's experience and consider the risks, stresses and protective factors in the child's world. Cultural sensitivity and competence is necessary in considering the family perspective. Religion, faith and places of community and worship may be a key reference point and a source of resilience, identity and social connection. At the same time, risks and stresses are accentuated for some families by isolation, racism, food insecurity, poor housing, barriers to employment and especially poverty. These issues are considered further in Part 4 of this Guidance.
1.107 Children dislocated from family and community may be additionally vulnerable to abuse and exploitation. Children living in close knit or insular communities, whether urban or rural, may find it more difficult to go outside for help. Family honour and reputation may in some instances provide a barrier to sharing knowledge of maltreatment and abuse. Practitioners sometimes fear asking questions and making judgements about harsh or abusive parenting that might be deemed cultural practices. However, in all circumstances, a child's right to be protected from harm is paramount. Practitioners need sensitivity and persistence in developing an understanding of what life is like, and has been like, for each child.
1.108 Awareness of contextual risks and strengths entails consideration of relationships within and beyond the family. This includes safety and risks within specific community settings and in peer relationships (both physical and online).
Engagement and working together
1.109 The introduction to this Guidance contains a summary of what parents might expect of services during child protection processes. These expectations form a basis for positive engagement. The aim is to develop goals in collaboration on the basis of shared understanding.
1.110 In some situations partnership may seem unrealistic due to resistance, avoidance, or aggression. Some parents struggle to follow through on verbal agreements. Engagement therefore requires exploration of the barriers to collaboration and of the factors that encourage motivation to change. Persistent outreach or advocacy for parents may be needed for those with whom services find it hard to engage.
1.111 Frontline staff who experience aggressive and threatening behaviour from service users should be provided with supervisory support.
1.112 Child protection procedures should promote consistency and co‑ordinated action. However, families may still find it hard to understand what is happening. Partnership can only evolve if processes and choices are understood. Trust cannot develop unless professionals are reliable.
1.113 Investigations and formal meetings require careful preparation for child and family. This entails attention to the pace, place, planning and support for anxiety-provoking processes and transitions.
1.114 Preventative, protective and reparative assessment and action should all be co‑ordinated and streamlined, as appropriate in each situation. The flexibility, specialist expertise and community understanding of Third Sector organisations is often a leading ingredient in provision of advocacy and in preventative, protective and reparative support for children and families. Wherever possible, family support should be provided early. Correlation between features of effective family support and children's rights are symbolised in the graphic below.
Protection from all forms abuse, neglect, violence and exploitation
The Promise: Plan 21-24 – The Promise
10 Principles of Intensive Family Support
Intensive family support: consensus on effective qualities COVID-19 Children and Families Leadership Group
Family support and child protection. During the Coronavirus (COVID-19) pandemic, collaborative planning between Scottish Government and stakeholders has included a focus on features of effective family support. These features correlate with principles articulated in The Promise. A summary of these features, and the principles of good family support, has been drafted to assist those who are involved in the delivery and planning of family support at a local or national level. This is due to be published on the Scottish Government website in 2021.
The summarised features are bounded here by unifying requirements within the UNCRC which, as a whole, underpins the Getting it right for every child approach and guides leadership and practice.
1.115 Child protection assessment, planning and intervention involves exploration of the interaction of variables that impact on risk of harm for the child.
1.116 This may include:
- dynamic factors that may be amenable to shift and change, such as poverty (or affluence), housing, employment, ill health, available support, personal attitudes and behaviours
- static factors such as early adverse experiences or intellectual disabilities, the impact of which may be affected by the understanding and pragmatic support offered
- assessment of risk entails consideration of the interaction of relationships and factors in the child's family and wider world, including impact of past experiences. In every situation the interaction of risks and strengths may be assisted by consideration of components of the GIRFEC National Practice Model, such as the concept of resilience
1.117 Child protection is an inter-agency responsibility. Professionals should each play their part in ensuring plans are clearly understood, co‑ordinated and streamlined as appropriate. The lead professional role is key. Those involved should know who is co‑ordinating processes and whom to contact.
1.118 Protecting children and young people: a Framework for Standards was published alongside the Children's Charter (Scottish Executive 2004). The principles in this framework, applying across the workforce, are:
- children get the help they need when they need it
- professionals take timely and effective action to protect children
- professionals ensure children are listened to and respected
- agencies and professionals share information about children where this is necessary to protect them
- agencies and professionals work together to assess needs and risks and develop effective plans
- professionals are competent and confident
- agencies work in partnership with members of the community to protect children
- agencies, individually and collectively, demonstrate leadership and accountability for their work and its effectiveness
1.119 The individual protected characteristics, including the religious and cultural background of the child and family, must be taken into consideration when any decisions are being taken. Children and their families should be involved, wherever possible, in planning to meet the child's needs, both in the short and longer term. Children and their families are often best placed to know 'what works' for them.
1.120 Shared principles for staff development and training are necessary to support competence, confidence and supervisory understanding in child protection across agencies. Supervision is key to safe practice and a learning culture as outlined in Part 2A.
1.121 Appropriate pre- and post-qualifying training should provide essential preparation for lead agencies. Frameworks should be subject to review and improvement. It should be noted that revised guidance on child protection for health professionals is integrated within this Guidance, rather than sitting alongside it in a separate publication.
1.122 A trauma-informed approach is necessary across the workforce involved in child protection (NES 2018). A knowledge of child development and the impact of trauma within investigative processes are central to Joint Investigative Interviewing skills. They are central to the new Scottish Child Interview Model and requisite training, which has been developed by Police Scotland and Social Work Scotland.
1.123 Transitional support. There is a need to ensure sufficient planning, continuity and consistency of support for good transitions.
1.124 Flexibility. The GIRFEC approach promotes provision of the right help at the right time. Families benefit when there is sufficient flexibility to allow a step-up or step-down in the intensity of provision without excessive delays or fractures in support.
1.125 Connected planning. Child protection is not just about investigative and planning stages and methods. When children are accommodated or have to move for their own safety, emotional safety and resilience is more likely if significant relationships in the child and young person's life are recognised and valued. Once accommodated, there are times when the level of professional attention may diminish. Immediate risk is alleviated. A robust approach to assessment and support of foster and kinship placements, and a step-by-step approach to assessment and support for re-unification, ensure that child protection investigation and planning are part of a safely connected sequence of options.
1.126 Co-ordinated planning. More children are coming into the care and protection systems in early years and remaining longer (Complexity in the lives of looked after children and their families in Scotland; 2003 to 2016). The complexity and close connections between child protection, children's hearings and permanence processes can be confusing for families unless co‑ordination of planning and engagement of key professionals is reliable, accessible and purposeful. Child protection planning is the first step in enabling safety for a child, the process must be followed through to conclusion to enable future legal stability with the child staying at home; returning home; or living with kinship, foster, residential or adoptive carers.
1.127 The interconnection of processes is graphically illustrated in this Child Protection and Permanence System Map which shows essential steps, decisions and options, including appeals. https://www.celcis.org/knowledge-bank/search-bank/child-protection-and-permanence-system-map
A simplified version can be found at: https://www.celcis.org/application/files/4215/1264/7053/CPP_System_Map_Simple.pdf
Information Sharing: Inter-Agency Principles
1.128 Sharing relevant information is an essential part of protecting children from harm. Practitioners and managers in statutory services and the voluntary sector should all understand when and how they may share information. Practitioners must be supported and guided in working within and applying the law through organisational procedures and supervisory processes. Within agencies, data controllers and information governance/data protection leads should ensure that the systems and procedures for which they share accountability provide an effective framework for lawful, fair and transparent information sharing. Where appropriate, data sharing agreements must be in place.
1.129 Where there is a child protection concern, relevant information should be shared with police or social work without delay, provided it is necessary, proportionate and lawful to do so. The lawful basis for sharing information should be identified and recorded. A summary of what constitutes a lawful basis, and what you need to consider in trying to identify the appropriate lawful bases for sharing can be found at the end of this section. Agency data protection leads should be able to advise where doubt about the appropriate lawful basis exists.
1.130 It is the role of designated police, social work and health staff to consider whether there may be a risk of significant harm, and if so, to progress necessary action through child protection procedures. This will include careful consideration and a plan for how to communicate with the child and family, including where there is no further action required.
1.131 Practitioners with child protection concerns may share relevant information in order to:
- clarify if there is a risk of harm to a child
- clarify the level of risk of harm to a child
- safeguard a child at risk of harm
- clarify if a child is being harmed
- clarify the level of harm a child is experiencing
- safeguard a child who is being harmed
1.132 Professional judgement must always be applied to the available evidence about each specific emerging concern, and about what is relevant, proportionate, and necessary to share. The concern must be placed in the context of available observed and recorded information about the particular child, their needs and circumstances.
Why relying on 'consent' as the basis to share information may not be appropriate
1.133 UK General Data Protection Regulation (GDPR) sets a high standard for consent and, in most cases where there are child protection concerns, consent is unlikely to be an appropriate lawful basis to rely upon as it requires that individuals have real choice and control about the processing of their personal data. Relying on 'consent' as the lawful basis is not appropriate if, for example, refusal to give consent would prejudice a criminal investigation or might lead to serious harm to the child. Furthermore, due to the power imbalance between a child or families and the authorities, it would be difficult to demonstrate that consent was freely given. In matters of child protection, it is therefore likely that reliance on consent would be the exception and not the rule.
Sharing without consent
1.134 Where there may be a child protection concern, information may be lawfully shared without the need for consent to be obtained from the individual(s) to whom the information relates. The following considerations will be helpful to support relevant, proportionate, timely, safe and effective information sharing.
- if there is evidence that a child is at risk of significant harm, relevant information can be shared with a statutory agency without delay. Consent is not required or appropriate because the information must be shared in order to protect the child. Consent should only be sought when the individual has a real choice over the matter. However, where appropriate, agreement and understanding about the sharing of information may be helpful in engaging individuals in the process
- the needs, feelings, views and wishes of the child should be taken into account and documented. They may also need additional support to understand and communicate
- information sharing decisions must be based not only upon considerations about the safety and wellbeing of the individual, but also the safety of others
- information can be shared without consent if, for example, a practitioner is unable to gain consent from the individual in time to prevent risk of harm, or if gaining consent could place a child at risk
- relevant personal information can be shared lawfully if, for example, it is to keep a child or individual at risk safe from neglect or physical, emotional or psychological harm. This must be done in a way that complies with the relevant areas of law such as data protection, human rights and confidentiality
- in all circumstances, it is important to be transparent with children and families so that they know what information is to be shared or has been shared and in what circumstances. In certain exceptional circumstances, it may not be appropriate to advise the individual that information is to be shared
- children and their families should also be aware that they can challenge whether sharing information is proportionate
- a record should be made of the reasons and considerations that informed the decision to share the information
1.135 If, where there is a possible child protection concern, a decision is made not to share information, consider:
- what are the reasons for deciding not to share information?
- what harm could result if this information is not shared?
- what are the possible risks for the child or young person or for others if information is not shared and how serious could those risks be?
Reasons for not sharing should be recorded.
Involvement of children
1.136 Article 12 of the UNCRC must inform the approach to participation of children in child protection processes. This makes no restrictive presumption about age. Article 12 states:
"States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child."
1.137 There is no age limit on the right of the child to express their views. Practitioners must not begin with the assumption that a child is incapable of expressing her or his own views, but rather presume that a child has the capacity to form their own views and recognise that she or he has the right to express them. Advocacy, translation or communication support may be needed.
1.138 Practitioners must consider whether the child has the capacity to make their own decisions. Under the Data Protection Act 2018, a child under the age of 16 must be treated as though they have capacity to exercise their rights under that Act, if there is reason to believe that the child has a general understanding of what it means to exercise those rights.
1.139 If a child is too young or immature to understand the full implications of information sharing practitioners should seek the consent of the parent on behalf of their child unless there are good reasons not to do so, in which case these reasons should be recorded.
1.140 In general, it should be assumed that a child who is over the age of 12 years has reached the age where they have the necessary level of maturity to have this understanding, unless there is evidence to the contrary.
1.141 Implementation of Article 12 requires recognition of, and respect for, non-verbal forms of communication including play, body language, facial expressions, and drawing and painting, through which very young children demonstrate understanding, choices and preferences.
1.142 Information shared must only be that which is necessary for child protection purposes.
1.143 Individuals about whom information is being shared should not be put under pressure to consent to the sharing of their information. They should be informed and involved in such a way that they understand what is happening and why.
1.144 They should also be told what information about them is being shared, with whom and why this is necessary, unless to do so would be detrimental to:
- the best interests of a child
- the health or safety of a child or another person
- the prevention or detection of crime (e.g. creating a risk of harm to a child)
- the apprehension or prosecution of offenders
- it is not reasonably practical to contact the person
- it would take too long given the particular circumstances (e.g. where you have to act quickly)
- the cost would be prohibitive
- there is some other compelling reason
1.145 Information sharing must be:
- timely in relation to the child protection concern
- secure in the manner in which it is shared
- explicit in the records about any dispute in facts or opinions shared
1.146 Shared information and records held must:
- state with whom the information has been shared and why
- be accurate and up to date
- be explicit about reasons for sharing or not sharing information
1.147 Information sharing that may be viewed as interfering with the right to private family life can only be lawful if it is done in a way that is proportionate to the achievement of a legitimate aim.
1.148 Seeking Advice. If in doubt about the boundaries of information sharing, practitioners should seek advice from their line managers. Further consultation may be necessary with agency advisors for GIRFEC and/or child protection. There should also be a governance lead to consult about the sharing of information in principle, without disclosing the identity of the individual. In any circumstances, agreement or disagreement and course of action or intervention should be recorded.
1.149 Within health services, Caldicott Guardians are senior persons appointed to ensure that personal information is processed legally, ethically and appropriately. Caldicott Guardians provide leadership and informed guidance on complex matters involving confidentiality and information sharing (A Manual for Caldicott Guardians). If and when there is a decision to share information in relation to a child protection concern, then consideration should be given to the necessity to consult the child or young person's named person (or equivalent, where applicable), and where there is one appointed, the lead professional. They may have information that is relevant to the concern.
1.150 Effective records management policies include a well-structured file plan, standard file-naming conventions for electronic documents, and a clear retention policy about when to keep and delete documents. This will assist organisations with accountability and documentation obligations, including those relating to access to records.
1.151 Chronologies are a form of data processing. They may be shared or jointly compiled between agencies and can have a formative influence on inter-agency child protection assessment and planning. Further detail may be found in Part 3 of this Guidance.
1.152 Access to records. The right of access (known as subject access) is a fundamental right under data protection law. It allows individuals to find out what personal data is held about them and to obtain a copy of that data. The Information Commissioner has developed guidance (Right of access | ICO) about the rights that individuals have to access their personal data and the obligations on data controllers.
Summary of lawful bases for sharing personal information
Public interest or public task
Necessary for performance of a task carried out in the public interest which is laid down by law, or in the exercise of an official authority, for example, a public body's tasks, functions, duties or powers.
Necessary to protect someone's life or, for example, if a child is deemed to be at risk of significant harm.
Necessary to comply with a common law or statutory obligation.
Unlikely to be an appropriate basis for sharing information about a child protection concern, as outlined above in this section.
Only if public authorities are processing data outside the scope of their tasks as a public authority; and therefore unlikely to be an appropriate basis.
When necessary in performance of a contract entered in to by an individual and therefore unlikely to be relevant in this context.
Reference: Lawful basis for processing | ICO
For 'special category data' a higher or additional standard applies
'Special category data'
Includes or concerns: racial or ethnic origin; health; sexual orientation; sex life; political opinions; religious or philosophical beliefs; trade union membership; genetic data; or biometric data (if this is being used for identification purposes).
Higher standards for sharing special category data
In order to lawfully process special category data, you must identify both a lawful basis under Article 6 of the UK GDPR and a separate condition for processing under Article 9. These do not have to be linked.
You must determine your condition for processing special category data before you begin this processing under the UK GDPR, and you should document it.
When special category data may be shared: examples
Special category data can, for example, be shared to protect vital interests (i.e. necessary to protect someone's life).
It can also be shared for reasons of substantial public interest and if the additional conditions set out in paragraph 18 of schedule 1 of the Data Protection Act 2018 are met. This is when it is necessary to safeguard individuals or types of individuals at risk from neglect or physical, mental or emotional harm or in order to safeguard the physical, mental or emotional wellbeing of an individual, when the individual is under 18, or aged 18 or over and at risk: Data Protection Act 2018
Special category data may be shared without consent if it is necessary in the substantial public interest (which includes protecting the public or individuals or children at risk); and if in the circumstances, consent to the processing cannot be given by the individual; or if it is not reasonably possible to obtain the consent of the individual; or if obtaining the consent would prejudice the provision of necessary protection.
Under the Data Protection Act 2018, a person over 18 years may be 'at risk' if they have needs for care and support; or are at risk of neglect, neglect or physical, mental or emotional harm, and as a result of those needs are unable to protect themselves against the neglect or harm or the risk of it: Data Protection Act 2018
The ICO provides further guidance on special category date. It should be noted that in many cases, an appropriate policy document will need to be in place in order to meet a UK Schedule 1 condition for data processing under the Data Protection Act 2018.
Further guidance can be found on the ICO's website:
- What are the conditions for processing? | ICO
- What are the substantial public interest conditions? | ICO
- Special category data | ICO
Legislation relating to Child Protection
1.153 Legislation places a variety of duties and responsibilities on services and organisations. These include duties to investigate and respond to concerns about a child's safety and wellbeing. Legislation defines the responsibilities of local authorities to develop community planning processes with partner agencies.
1.154 This section reviews overarching legislation covering the duties placed on services, and outlines a selection of key overarching legislation. For an outline of other legislation current or impending, see Appendix C.
1.155 Practitioners should be aware of their own legal responsibilities and duties, and understand the legal framework within which they and other organisations and agencies operate.
Duties to protect
1.156 The legal duty to investigate and report issues in relation to child protection is derived from two sources: the Police and Fire Reform (Scotland) Act 2012, which provides the mandate for police officers, and the Children's Hearings (Scotland) Act 2011, sections 60-64, which set out the duties and powers of local authorities, constables, courts and other persons to refer all children who may be in need of a Compulsory Supervision Order to the Scottish Children's Reporters Administration. Section 66 of the 2011 Act requires the Principal Reporter to consider whether such Compulsory Supervision Orders are necessary – in which case the Reporter must refer the case to the children's hearing under section 69.
Police and Fire Reform (Scotland) Act 2012
1.157 The Police and Fire Reform (Scotland) Act 2012 defines the duty of a constable, and overarching policing priorities. The main purpose of policing is to improve the safety and wellbeing of persons, localities and communities in Scotland and, as such, the duty of a Constable includes the prevention and detection of crime, maintaining order, and the protection of life and property. They may take such lawful measures and make such reports to the appropriate prosecutor as may be needed to bring offenders to justice.
Children's Hearings (Scotland) Act 2011
1.158 The Children's Hearings (Scotland) Act 2011 sets out the legal basis for the care and protection of children by the imposition of Compulsory Supervision Order. The Act sets out the duties and powers of local authorities, police officers and others to make a referral to the Principal Reporter in relation to a child. The Act also sets out the Principal Reporter's powers to investigate the circumstances of any referred child in order to make a decision about whether there is an evidential basis for the child to be referred to a hearing, and about whether a hearing is necessary. The Act also governs the proceedings at children's hearings. It sets out the circumstances in which hearings can make a Compulsory Supervision Order, which provides the basis for compulsory intervention in the child's life, and which can include a range of different measures, depending on what is necessary in the child's circumstances. This Act also sets out the legislation governing emergency measures for the protection of children, including child protection and child assessment orders, emergency applications to justices of the peace and the powers of a constable to remove a child to a place of safety.
Children and Young People (Scotland) Act, 2014
1.159 Part 1 defines the duties of Ministers and of public authorities in relation to the fulfilment of rights of children, and in furthering the effect of the UNCRC in Scotland. Part 3 (Children's Services Planning) requires local authorities and health boards to take a strategic approach to the design and delivery of a wider view of services used by children and families than those previously set out in the Children (Scotland) Act 1995. Section 8 requires every local authority and its relevant health board to jointly prepare a Children's Services Plan for the area of the local authority, in respect of each three year period.
1.160 A range of other relevant local and national bodies are expected to participate in the development of the plan. The Act requires the local authority and relevant health board to jointly publish an annual report outlining the ways in which provision of children's services and related services in that area have been provided in accordance with the plan.
1.161 The Act contains provisions about the rights of children and young people; investigations by the Commissioner for Children and Young People in Scotland; the provision of services and support for or in relation to children and young people; the extension of early learning and childcare; the role of 'corporate parents'; the extension of aftercare support to young people leaving care (up to and including the age of 25); entitling 16-year-olds in foster, kinship or residential care the right to stay in care until they are 21; support for kinship care; the creation of an adoption register; consultation on certain school closure proposals; amendments to children's hearings legislation; appeals against detention in secure accommodation; the provision of free school lunches. Guidance has been produced to support those parts of the Act that have been implemented.
1.162 Where there is duty to assess the wellbeing of children and young people under the Act, there are provisions to require this to be done with reference to the eight wellbeing indicators. There is an intention to seek to repeal Parts 4 and 5 of the 2014 Act, on named person and child's plan (which were never implemented and are therefore not currently in force). The commitment remains to deliver these core components of GIRFEC within existing law. Policy and practice guidance is being developed to support on-going implementation of GIRFEC underpinned by necessary, relevant and proportionate information sharing.
Children (Scotland) Act 1995
1.163 This remains one of the primary pieces of legislation providing the range and scope of local authority intervention in the lives of children and their families, and the duties and responsibilities it establishes are discussed at different points elsewhere in this Guidance. The duties of the local authority within this legislation are, in the main, discharged by statutory social work services.
1.164 This Act sets out the duties of a local authority to publish information about services provided by them for children in their area, or which are provided for these children by other local authorities (section 20).
1.165 The Act also permits the local authority to request help, in the exercise of their functions in children's services, from a range of persons specified, and imposes an obligation on the person requested to provide help, unless where doing so would not be compatible with that person's own statutory or other duties (section 21).
Children Scotland Act (2020)
1.166 The Children (Scotland) Act 2020 was passed by The Scottish Parliament in August 2020. When implemented it will amend many aspects of the Children and Young People (Scotland) Act 1995, bringing the law further into line with children's rights under the United Nations Convention on the Rights of the Child (UNCRC); make sure children's views are heard in family court cases and children's hearings and the best interests of children are at centre of those cases and give more protection to victims of domestic abuse and their children. Children (Scotland) Act 2020 - Explanatory Notes.
Community Empowerment (Scotland) Act 2015
1.167 Part 2 of the Act replaces community planning provisions in the Local Government in Scotland Act 2003 and provides a statutory basis for Community Planning Partnerships (CPPs). Community Planning is a process that helps public agencies and bodies to work together and with the community to plan and deliver better services that make a real difference to people's lives. Part 2 came into force on 20 December 2016.
1.168 The purpose of community planning is improvement in the achievement of outcomes resulting from, or contributed to, by the provision of services delivered by or on behalf of the local authority or the persons listed in schedule 1.
1.169 Schedule 1 of the act lists all the bodies considered to be community planning partners of the local authority. It includes the Chief Constable of Police Scotland, NHS Boards, and any integration joint board established by the Public Bodies (Joint Working) (Scotland) Act 2014.
1.170 The CPP must prepare and publish a local outcomes improvement plan (LOIP) which sets out the local outcomes that the CPP will prioritise for improvement.
Local Government in Scotland Act 2003
1.171 Part 3 of the Act deals with the power to advance wellbeing. This sits alongside Community Planning and allows a local authority to do anything to promote or improve wellbeing within the authority's area.
Public Bodies (Joint Working) (Scotland) Act 2014
1.172 This Act provides a legislative framework for the integration of health and social care services in Scotland. The Act removed community health partnerships from statute and places a duty on local authorities and NHS Boards to integrate the governance, planning and resourcing of adult social care services, adult primary care and community health services, and some hospital services. A total of 32 health and social care partnerships (HSCPs) have been established, with a jointly agreed integration scheme for each setting out key arrangements for the integration of services. The Act also allows for the integration of other areas of activity, such as children's health and social care services.
Social Work (Scotland) Act 1968
1.173 Although amended many times over the years, this legislation provides the primary mandate for social work intervention in Scotland. It is the legislation that creates the duty under section 12 to promote social welfare. While this has been added to by the Children (Scotland) Act 1995 to specify children in need, the overarching mandate remains that it is the duty of the local authority to ensure that such services are made available across their jurisdiction as could be considered consistent with this duty.
Local Government in Scotland Act 2003
1.174 Part 3 of the Act deals with the power of local authorities to enhance wellbeing, and again this can be interpreted as being relevant to the establishment of Child Protection Committees.
The Protection of Vulnerable Groups (Scotland) Act 2007
1.175 This legislation introduced the Protection of Vulnerable Groups (PVG) scheme to replace the former system of Disclosure for people working with vulnerable groups. It identifies categories of employment or contact (regulated work) where there is the expectation that a PVG check will be required and also provides direction on the responsibilities of employers.
Education (Additional Support for Learning) (Scotland) Act 2004
1.176 Under section 4 of the 2004 Act, where a local authority has responsibility for the child's or young person's education, and it has been established that the child or young person has additional support needs, the authority has a duty to provide such support as is necessary to help them benefit from school education. Under section 9 of the 2004 Act, where a local education authority has responsibility for the child's or young person's education and it has been established that the child or young person requires a co‑ordinated support plan, the education authority has a duty to provide this.
1.177 Child protection policy must pay due regard to equality and diversity issues. Access to and delivery of child protection services should be fair, consistent, reliable, and focused on individual outcomes and enablement. Children and families should experience listening, respectful, responsive services. There should be no discrimination on the grounds of: age, disability, gender reassignment, marriage or civil partnership status, pregnancy or maternity, race, religion or belief, sex or sexual orientation. The Equality Act 2010 restates, streamlines and harmonises equality legislation. It replaces a number of Acts including the Race Relations Act 1976, the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995.
1.178 Public authorities also have responsibilities under equality legislation for ensuring that discrimination does not occur, and for promoting equality of opportunity regardless of race, sex and disability. From April 2011 the public sector equality duty, under the Equality Act 2010, has required public authorities to have due regard to certain matters relating to equality when exercising their functions. These matters are eliminating conduct prohibited by the Act, advancing equality of opportunity, and fostering good relations between people who share a protected characteristic and people who do not share it. Specific duties placed on Scottish public authorities are set out in the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (as amended).
1.179 Account must always be taken of diversity and equality issues. For example, staff will need to consider carefully the types of communication methods they use, adapting them as necessary to cultural preferences, literacy and language skills, communication skills and abilities, so as to overcome the range of communication barriers which a diverse population of children, young people and adults might face.
Child Poverty (Scotland) Act 2017
1.180 The Child Poverty (Scotland) Act 2017 sets in statute the ambition to eradicate child poverty. Local authorities and health boards must work together to prepare joint annual Local Child Poverty Action Reports, outlining action both taken and planned, in order to tackle local child poverty.
General Data Protection Regulation
1.181 This has been incorporated into UK data protection law as the UK GDPR, which is in force alongside the Data Protection Act 2018. General principles are outlined in a Guide to the UK General Data Protection Regulation (UK GDPR) | ICO and key practice considerations applicable in all child protection processes are summarised in this Part of the Guidance.