National guidance for child protection in Scotland 2014

This guidance has been superseded by the 2021 version .

Appendix A

Legislation: List of Other Relevant Legislation

1. This appendix supplements the chapter on legislation above (for further information, see the chapter on Legislation.

Legislation defining offences against children

Protection from Abuse (Scotland) Act 2001

2. While the primary focus of this legislation is women subjected to domestic abuse and the potential legal remedies available to them, aspects can assist attempts to safeguard the interests of children, particularly given what is now known about the impact of abuse on children. [83] The primary remedy offered by the Act is that of powers of arrest being attached to an interdict, regardless of the relationship between the abused and the abuser.

Criminal Justice (Scotland) Act 2003

3. This wide-ranging piece of legislation has important sections that relate to children and young people both in terms of the Children's Hearings system and the interpretation of what constitutes legally justifiable physical punishment. Following a consultation exercise in 2000, [84] where opinions were very divided, it became clear that there was no consensus across Scottish society on the so-called 'smacking ban'. Section 51 clarifies that it is an offence to punish a child in any manner that involves 'a blow to the head, shaking or the use of an implement'. Where any such offence is committed, the defence of reasonable chastisement does not apply.

4. Sections 52 and 53 relate to changes in terms of the reporting restrictions on Children's Hearings and to information that the principal Reporter can make available to child victims and relevant persons where the offender is also a child.

5. Section 16 addresses issues around the rights of victims to be advised of the release dates, etc., of offenders. This may be relevant to children in circumstances where the perpetrator of offences against them has been given a significant prison sentence.

Prohibition of Female Genital Mutilation (Scotland) Act 2005

6. This legislation makes it an offence for a person to carry out specified female genital mutilation procedures on another person or to aid or abet another person to carry out such procedures. This includes making it an offence to send a girl abroad for the purpose of female genital mutilation. For further information, see the section on Female genital mutilation.

Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005

7. This important legislation introduced a number of offences including that of 'grooming' a child under the age of 16 for sexual purposes and meeting such a child following prior contact for the purposes of engaging in some form of illegal sexual conduct. This latter offence is often linked to contact via online chatrooms. For further information, see the section on Online child safety.

8. Under sections 10-12, arranging or facilitating any sexual services from a young person under the age of 18 is an offence, as is attempting to control a young person for the provision of such services, including pornography. In the case of the production of pornographic images, the previous upper limit was 16.

9. Section 2 also introduced Risk of Sexual Harm Orders that aim to protect children and young people from persons who may not have been convicted of any criminal offence but who have engaged in some level of sexually explicit behaviour or communication in respect of a child under 16. This is a civil matter and the Order would be sought by the Chief Constable through application to the Sheriff. It is not intended as a substitute for criminal process but rather as a means of protecting children at an earlier stage.

Sexual Offences (Scotland) Act 2009

10. This Act translated a number of common law offences - including rape - into statutory offences and clarified the issue of consent, introducing a new definition of consent as 'free agreement'. A number of what are described as 'protective' offences were introduced to allow for the protection of individuals who, by virtue of their age or mental capacity, may not be deemed able to engage in 'free agreement' to sexual activity. The Act introduced in sections 42-45 a new offence relating to a breach of a position of trust in respect of a child. The Act provides clear guidance as to what constitutes a position of trust in these circumstances. It updated and amended the provisions of the UK Sexual Offences (Amendment) Act 2000.

11. Section 55 also allows for a Scottish resident to be convicted of an offence committed abroad if it would be deemed a criminal offence in Scotland. It is no longer necessary for the behaviour to be illegal in the country where it occurs. Unlawful sexual intercourse with a 12-year-old somewhere in Asia, for example, would be able to be prosecuted in Scotland.

Children's Hearings (Scotland) Act 2011

12. The Children's Hearings system has undergone a period of change following the Children's Hearings (Scotland) Act 2011. The Act was introduced to Parliament in February 2010 and was enacted on 6 January 2011. The Act aims to strengthen and modernise the Children's Hearings system and brings into one place most of the children's hearings related legislation.

13. The 2011 Act came into force on 24 June 2013.

14. The main structural elements of the Act include:

  • the creation of the role of the National Convener, who will, for the first time, act as a figurehead for panel members and ensure they are consistently supported to a high standard.
  • a dedicated national body, Children's Hearings Scotland ( CHS). CHS supports the National Convener in the delivery of her functions associated with: the recruitment, selection, training, retention and support of panel members.
  • the dissolution of local authority panels and the creation of a national children's panel with area support teams to support panel members at a local level.
  • the creation of the national Safeguarders Panel to improve consistency and standards and improve understanding within the system of the safeguarder role.

Children and Young People (Scotland) Act 2014

15. This Act was introduced to Parliament on 17 April 2013 and enacted on 27 March 2014. Some provisions within the Act will commence immediately. Others, in respect of reporting on outcomes, are expected in 2015 and the remaining in 2016. The Act will place duties on service providers to reinforce the GIRFEC approach in resect of the Named Person, Child's Plan etc. which is currently being implemented.

Legislation on managing adults who may pose a risk to children

Criminal Justice and Licensing (Scotland) Act 2010

16. The Criminal Justice and Licensing (Scotland) Act 2010, provides for a new statutory offence of 'stalking' specifically criminalising stalking. Conduct constituting stalking may, depending on the circumstances, be prosecuted using a number of common law and statutory offences. Some of the offences most relevant to stalking, including breach of the peace, threatening and abusive behaviour, the law on threats and offences under the Sexual Offences (Scotland) Act 2009, are described above.

Conduct which might be described as harassment or stalking can be prosecuted under Scots law as a breach of the peace. This common law offence covers all behaviour (including single incidents) which is severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. As a common law offence, the scope of the offence is ultimately a matter for the courts to determine but it is a wide-ranging offence and the courts recognise that it can be serious. The maximum penalty for common law offences such as breach of the peace is limited only by the court in which the case is tried. In the High Court, a life sentence is theoretically possible.

Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 provides for an offence of 'threatening and abusive behaviour. It provides that it is an offence for a person to behave in a threatening or abusive manner towards someone if that behaviour would be such as to be likely to cause a reasonable person to feel fear or alarm. This offence is intended to allow for the prosecution of threatening or abusive behaviour that could previously have been prosecuted as a breach of the peace, prior to the Appeal Court's decision in the case of Harris v. HMA in 2010, which ruled that the crime of breach of the peace requires a public element.

Police Act 1997

17. Part V of this legislation provides the responsibility and authority for 'disclosure checks' on individuals by local authorities or third sector organisations as well as other organisations depending on the nature of the work being undertaken. This is further supported by the Police Act 1997 (Criminal Records) (Scotland) Regulations 2006. The legislation allows such bodies to seek to obtain criminal record certificates (known generally as 'disclosures') on any person who is likely to undertake direct work with children and other vulnerable groups. For such purposes, disclosure of previous criminal convictions must be obtained at an 'enhanced' level. This means that spent convictions under the terms of the Rehabilitation of Offenders Act 1974 are included, together with any other information considered relevant by the police and other authorities. Under the legislation, checks are undertaken on foster carers, employees and any person who, while not holding any form of parental rights in respect of a child, may be entrusted with their regular care.

Protection of Vulnerable Groups (Scotland) Act 2007

18. The Protection of Vulnerable Groups (Scotland) 2007 ( PVG) Act, which was commenced in 2011, introduced a new membership scheme to replace and improve upon the current disclosure arrangements for people working with vulnerable groups. The PVG Scheme is designed to create a fair and consistent system that will help to ensure that those who have regular contact with children and protected adults through paid and unpaid work do not have a known history of harmful behaviour. The scheme is intended to be quick and easy to use, reducing the need for members to complete a detailed application form every time a disclosure check is required, and aims to strike a balance between proportionate protection and robust regulation and make it easier for employers to determine who they need to check in order to protect their clients.

19. During the first year after 'go-live', the PVG Scheme will only be available for those joining the vulnerable groups' workforce for the first time, moving posts or whose circumstances have changed. The whole of the current workforce will be phased into the scheme over the following three years. Safer Recruitment through Better Recruitment: Guidance in Relation to Staff Working in Social Care and Social Work Settings was guidance published by the Scottish Government for social care and social work employers to support use and development of recruitment and selection processes which help to ensure only staff suitable to work with service users are employed.

Domestic Abuse (Scotland) Act 2011

20. The Domestic Abuse (Scotland) Act 2011 came into force on 20 th July 2011. This legislation was introduced to improve access to justice and the protection available for all those who are subject to domestic abuse. The Act introduces two main changes to the remedies which were available to people in that situation:

a. The Act removes the requirement for a person, who is the victim of harassment, to show that there has been a "course of conduct" before a Non Harassment Order will be granted. Now, under the Act, evidence of only one such incident of harassment will be needed for such an order to be granted.

b. The Act now makes it a criminal offence for a person to breach a Domestic Abuse Interdict or Interim Interdict which has a Power of Arrest attached to it.

Legislation on criminal proceedings and witness supports

Sexual Offences (Procedure and Evidence) (Scotland) Act 2002

21. This legislation places restrictions on when an accused person is allowed to conduct his own defence and thereby cross-examine the defendant. The categories include a range of offences against children, including unlawful sexual intercourse with a girl aged 13-16 and indecent behaviour towards a girl aged 12-16. The accused is also prohibited from precognition of a child witness under oath and there are specific bail conditions relating to attempting to obtain statements from the complainer. The effect of this legislation was extended further in the Vulnerable Witnesses (Scotland) Act 2004 to include non-sexual offences involving children under 12.

Vulnerable Witnesses (Scotland) Act 2004

22. Under this legislation, which amended some sections of the Criminal Procedure (Scotland) Act 1995, children who are called upon as witnesses are no longer required to undergo a competence test to ascertain whether they can understand the distinction between telling the truth and lying. Equally important is that under section 6 (which inserts section 288E to the Criminal Procedure (Scotland) Act 1995), an accused cannot conduct his own defence where the child concerned is under 12 and the offence involves sexual assault or violence.

23. One of the most important aspects of this legislation is the introduction of a range of special measures to support the vulnerable child when giving evidence or being cross-examined. The Act covers criminal cases, civil cases and Children's Hearings court proceedings. Standard special measures available to all child witnesses under 16 are a live TV link, screens in the courtroom and the presence of a supporter. Further special measures, available on application to the court, include evidence being taken in advance in the form of a prior statement (criminal cases only) or being taken by a commissioner.

24. It is important to note that a person under the age of 16 - i.e. a 'child witness' - is, per se, a 'vulnerable witness'. The provision of standard special measures will always be considered for them.

25. There is extensive guidance available on the subject. [85] The 2004 Act underpins the acceptance that oral evidence is no longer the only means by which testimony can be given by children.

Additional legislation

Mental Health (Care and Treatment) (Scotland) Act 2003

26. This introduced a number of principles which those discharging functions under the Act are required to observe, including a specific principle for the 'welfare of the child' . It requires that any functions under the Act in relation to a child with mental disorder should be discharged in a way that best secures the welfare of the child. In particular it is necessary to take into account:

  • the wishes and feelings of the child and the views of any carers;
  • the carer's needs and circumstances;
  • the need to provide carers with information that could help them care for the patient;
  • where the child is or has been subject to compulsory powers, the importance of providing appropriate services to that child; and
  • the importance of the function being discharged in a manner that appears to involve the minimum necessary restrictions on the freedom of the child.

27. The Act is universal and applies to everyone with a mental disorder irrespective of age, but it introduced specific provisions in relation to children and has clear links to the Children's (Scotland) Act 1995. A range of powers and duties is in place for both health boards and local authorities to address the needs of children with mental health problems and with parent(s) who have mental health problems.

28. Key amongst specific provisions in the Act are:

  • the requirement on health boards to provide certain services and accommodation for patients under 18 to help prevent young people being admitted to adult acute wards and improve the provision of specialist child- focused services;
  • the requirement on health boards to provide accommodation and services that will enable mothers with post-natal depression and who are in hospital to care for their child (of less than one year) in hospital, if they so wish;
  • that all those discharging functions under the Act have a duty to 'mitigate adverse effect of compulsory measures on parental relations', whether it is the parent or child who has the mental disorder; and
  • that education authorities have a duty to make arrangements for the education of pupils unable to attend school because they are subject to measures authorised by the Act or by other mental health legislation, as a consequence of their mental disorder.

Asylum and Immigration (Treatment of Claimants, etc.) Act 2004

29. This is UK legislation and as such the subject matter is reserved. While immigration and asylum and the impact they may have on children and their families is a very broad topic, section 4 of this legislation relates to the offence of trafficking people for exploitation.

30. Immigration and asylum issues relating to unaccompanied children is a highly specialised aspect of the legislative framework. The potential for exploitation and vulnerability is high and it is important that specialist legal advice is sought, even in situations that appear straightforward. There are complex and contested processes of age-testing that seek to clarify the ages of unaccompanied children arriving in this country without identifiable information and paperwork. The Scottish Refugee Council can provide initial support and information to help guide workers through these processes.

Anti-social Behaviour (Scotland) Act 2004

31. While the primary focus of this legislation may not be child protection in its most commonly regarded forms, it is important to remember the strong links between adult behaviour and outcomes for children and young people. This legislation allows for cases of anti-social behaviour to be referred to the Children's Reporter and for parenting orders to be applied to the parents of such children and young people. Bearing in mind the Kilbrandon principle of 'need not deed', this legislation could provide a way into the child protection arena for some young people.

Adult Support and Protection (Scotland) Act 2007

32. This Act seeks to protect and benefit adults at risk of being harmed. The Act requires councils and a range of public bodies to work together to support and protect adults who are unable to safeguard themselves, their property and their rights.

33. Public bodies are required to work together to take steps to decide whether someone is an adult at risk of harm, balancing the need to intervene with an adult's right to live as independently as possible.

Adoption and Children (Scotland) Act 2007

34. While this legislation made a number of changes to the administration of the adoption process in Scotland, it is the introduction of the Permanence Order that may have the most relevance for child protection processes. This order, which can be awarded to local authorities, allows for a greater degree of flexibility regarding a core of more permanent decisions about a child's care. The order allows responsibilities to be shared with carers by the local authority once the Permanence Order is in place and should be part of the single planning process for the child. Where it has been decided that, in order to safeguard and protect the child's welfare, it is no longer appropriate to consider returning a child to its birth family, a Permanence Order may provide the necessary stability without the child being placed within an adoptive family.

Equality Act 2010

35. The UK Government's Equality Act 2010 (external link) provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. The Act restated and simplified 116 separate pieces of earlier equality legislation into one Act, the bulk of which came into force in October 2010.

The characteristics protected by the Act are:

  • a. age
  • b. disability
  • c. gender reassignment
  • d. pregnancy and maternity
  • e. marriage and civil partnership
  • f. race
  • g. religion or belief
  • h. sex
  • i. sexual orientation.

It introduces several new measures:

  • requiring public bodies to meet a new integrated Equality Duty;
  • using public procurement to improve equality;
  • banning age discrimination outside the workplace;
  • requiring public bodies with more than 150 staff to publish gender pay gap information for their staff - publishing the percentage difference between men and women's average hourly pay;
  • requiring public bodies to report on employment information about the number and characteristics of staff extending the scope to use positive action;
  • strengthening the powers of employment tribunals;
  • protecting carers from discrimination;
  • clarifying the protection for breastfeeding mothers;
  • banning discrimination in private members' clubs; and
  • strengthening protection from discrimination for disabled people.

Public sector equality duty

The new public sector equality duty in the Equality Act 2010 came into force in April 2011. The duty places an obligation on public authorities (including NHS boards) to take action to:

  • eliminate unlawful discrimination, harassment and victimisation;
  • advance equality of opportunity between different groups; and
  • foster good relations between different groups.

The Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011

36. The Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act was passed by the Scottish Parliament on 22 March 2011and came into force on 28 November 2011, to provide a specific civil remedy for those threatened with forced marriage and those already in such a marriage.

37. A Forced Marriage is a marriage in which one or both parties do not (or, in the case of some adults with learning or physical disabilities, cannot) consent to the marriage and duress is involved. Duress includes both physical and emotional pressure. It is very different from arranged marriage, where both parties give their full and free consent to the marriage.

38. The Scottish Government believes that all people in Scotland who are eligible to marry or enter into a civil partnership have a right to do so freely and without coercion.

Sex Offender Community Disclosure Scheme

39.Keeping Children Safe or the Sex Offender Community Disclosure Scheme is a process that allows any member of the public to make an application to Police Scotland if they have a concern about a person's access to a child. It is a slow time information sharing process.

40.Any disclosure will only be made to the parent, guardian or carer of that child.

The Sex Offender Community Disclosure Scheme does NOT change how Police Scotland will deal with child protection incidents, which will continue to be dealt with as a matter of operational priority. Disclosure will only take place after careful consideration and where children are deemed to be at risk. The scheme is not about disclosing general information on sex offenders.


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