Legislation Relating to Child Protection
112. Legislation places a variety of duties and responsibilities on services and organisations. These can include:
- duties conferred on services to investigate and respond to concerns about a child's wellbeing, as well as the responsibilities of local authorities to develop community planning processes with partner agencies;
- 'overarching' legislation ( e.g. data protection) where some aspects are particularly relevant; and
- other legislation including laws relating to offences against children and young people and to civil law or administrative arrangements,
113. Staff should be aware of their legal responsibilities and duties as well as understanding the legal framework within which they and other organisations and agencies operate. This chapter reviews the legislation covering the duties placed on services and outlines the key overarching legislation. For further information on other relevant legislation, see Appendix A.
Duties to protect
114. 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 of 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 compulsory measures of supervision to the Scottish Children's Reporters' Administration, and section 66 of which requires the Principal Reporter to consider whether such compulsory measures of supervision are necessary - in which case the Reporter must refer the case to the Children's Hearing under section 69.
115. The Police and Fire Reform (Scotland) Act 2012 lays down the duty of a Constable and the 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:
- Prevent and detect crime
- Maintain order
- Protect life and property
- To take such lawful measures and make such reports to the appropriate prosecutor as maybe needed to bring offenders with all due speed to justice'
116. 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.
117. 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.
118. The Children's Hearings (Scotland) Act 2011 sets out the framework for the care and protection of children by the imposition of Compulsory Measure of Supervision. The Act sets out when referrals must be made to the Children's Reporter, the mechanisms for the provision of Compulsory Measures of Supervision and the forms such measures may take. 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.
119. Part 2 of this legislation, which is concerned mainly with issues of community planning, contains details of the duty on local authorities to establish and maintain a process of community planning which will include within its functions the scope for developing Child Protection Committees.
120. 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.
121. 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 responsibilities of employers.
122. 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 a co-ordinated support plan for the child.
123. Not all of the provisions in this legislation have been implemented at the time of writing; however it is a significant piece of legislation about children's rights and services and practitioners should be aware of its existence. 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 statutory operation of the Named Person and Child's Plan;
- 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;
- some amendments to children's hearings legislation;
- appeals against detention in secure accommodation; and
- the provision of free school lunches.
124. There are different implementation dates for different Parts of the Act, and practitioners working in children's rights and services should ensure they keep up to date with the changes being made as the different Parts of the Act are brought into force. Guidance will be produced to support the implementation of the Act.
125. The basic principles of the Act remain relevant in terms of the conditions in which any data can be 'processed' and it is the responsibility of the data controller within any organisation to ensure that the key principles set out in the Act are adhered to by all staff. Of particular note in the child protection context are those sections of the Act that relate to confidentiality, sharing of information and disclosure of sensitive information. For further information, see the chapter on Information-sharing.
126. All legislation passed by either the UK or Scottish Parliament should adhere to the principles of the European Convention on Human Rights. Insofar as it is possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention. Sometimes there may be a potential conflict of interest between children and adults and a balancing of competing rights will be required. For further information, see the chapter on Principles and standards.
127. Ratified by the UK Government in 1991, this Convention serves to inform all subsequent child care legislation. The rights of the child to express their views freely in all matters affecting them and to have them taken into account and the right to have the best interests of the child as a primary consideration in making decisions affecting the child are important aspects of this Convention. Conformity with the standards established by competent authorities is another requirement of the convention. For further information, see the chapter on Principles and standards.
128. Ratified by the UK Government in 2009, the Convention stipulates 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.