Child Protection Legislation
This page provides a brief guide to the legislation relevant to the care and protection of children in Scotland.
The following information was supplied by CHILDREN 1st. Their website is a useful source of information and guidance for clubs and event co-ordinators.
For more detailed information about the relevant Acts and Orders, please visit www.scotland.gov.uk/pvglegislation.
United Nations Convention on the Rights of the Child (1989) UNCRC
This is an international agreement which prescribes the rights of all children and young people under the age of 18. The rights in the Convention are generally cover three areas: participation (e.g. a child's right to have a say in decisions which affect them), provision (e.g. provision of services to promote health and education) and protection (e.g. the right to be protected from all forms of abuse, harm and exploitation at all time).
The UK is a signatory to UNCRC and must report to a UN Committee on steps taken to promote and respect these rights. Whilst not legally binding, the Convention is highly influential on decisions made by courts and public authorities about the lives of children.
European Convention on Human Rights (1950)
This convention is legally binding on the UK because its provisions were introduced in to the law of Scotland by the Human Rights Act 1998 and the Scotland Act 1998. The rights prescribed apply to children and adults. The main articles of relevance are:
- Article 8: right to respect for private and family life, home and
- Article 3: the right not to be tortured or experience inhuman or
Courts and public authorities must act in a manner which is consistent with these rights and can only interfere (in some cases) where there is a legitimate reason to do so. The protection of children is one such reason.
For a copy of the Convention see www.hrcr.org/docs/Eur_Convention/euroconv.html
UK and SCOTTISH LEGISLATION
Rehabilitation of Offenders Act 1974
Generally, criminal convictions become spent after a period of time (which depends on the sentence imposed by the court at the time of conviction). As a result of this Act spent convictions, generally, do not have to be disclosed to potential employers.
Age of Legal Capacity (Scotland) Act 1991
Children under 16 do not generally have legal capacity. This act sets out the circumstances in which children are regarded as having legal capacity including the ability to consent to medical treatment.
Criminal Procedure (Scotland) Act 1995
Schedule 1 to this Act contains a list of offences against children e.g. abandonment or wilful neglect. Someone who has committed an offence which is listed in this Schedule is often referred to by professionals as a "Schedule 1 offender".
Children (Scotland) Act 1995
The main piece of legislation covering child welfare and protection. Covers the rights and responsibilities of parents, the role of the local authority, the Children's Hearing System and introduced a number of measures for taking action to protect children in an emergency. This Act clearly states that the best interests of the child must always be
considered and children should be given an opportunity to have a say on matters which affect them, should they wish to do so.
Police Act 1997
Introduced three levels of disclosure information which are released in the form of Disclosure Certificates from Disclosure Scotland. This act also introduced access to criminal records for those who engage or appoint volunteers in positions which bring them in to contact with vulnerable groups. These certificates give employers details of criminal records of prospective employees. ‘Full Disclosure’ certificates would be required before allowing anyone working alone with children or vulnerable adults.
Data Protection Act 1998
Applies to any information, however obtained and used, which relates to living persons. Covers how such information is to be gathered, stored, processed and protected. All organisations that hold or process personal data must comply.
Sexual Offences (Amendments) Act 2000
Introduced a new offence of abuse of trust applicable to "positions of trust" which involve looking after children and young people who are in full time education, detained under a court order, looked after in a hospital/ children's home or other establishment providing social care or in foster care.
Exclusions and Exceptions (Scotland) Order 2003
There are certain jobs and voluntary positions for which prospective employers need to know about a person's criminal record to decide whether they are suitable for the position e.g. work with children. This Order lists the positions and professions where there is an exception to the general rule on non-disclosure of convictions.
Commissioner for Children and Young People (Scotland) Act 2003
Scotland's Commissioner for Children and Young People is Kathleen Marshall. It is her job to promote and safeguard the rights of children living in Scotland as set out in UNCRC.
Criminal Justice (Scotland) Act 2003
This Act amended the law in Scotland in relation to the physical punishment of children by parents. This Act makes it illegal for parents to hit a child on the head, hit a child with an implement and to shake a child.
Protection of Children (Scotland) Act 2003
This Act provides for the creation of the Disqualified from Working with Children List. It will be an offence for an organisation to knowingly appoint a worker (paid and unpaid) who is fully listed into child care positions (as defined in Schedule 2 of the Act).
The Act also creates a duty on organisations to refer an individual to the list where the individual has harmed a child or placed a child at risk of harm and has been dismissed or moved away from access to children as a consequence, or who would have been dismissed, but who has resigned, retired or was made redundant before the dismissal was
completed or left at the end of a temporary contract. It also creates a duty to remove an individual who is fully listed from a child care position.
Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005
This addresses the predatory behaviour of those who "groom" children with the aim of abusing them by introducing a new offence of "grooming". It enables the police to take preventative action before the child meets the perpetrator. Provides the police and courts with additional powers to apply for and grant, a Risk of Sexual Harm Order on those who are considered to pose a risk to children.
Protection of Vulnerable Groups (Scotland) Act 2007
The Scottish Government is taking forward a comprehensive implementation programme to deliver the provisions outlined in the new Protection of Vulnerable Groups (Scotland) Act. The Act will provide a robust vetting and barring scheme that will safeguard children and vulnerable adults by barring identified individuals from positions of authority where this authority and trust could be abused. It will also deliver a fair and consistent system that will be easier for people to understand and use.
A new, continuously updated, electronic record system will be introduced which will make it easier for employers to identify individuals who are (or who become) unsuitable to work with vulnerable groups.The scheme will also reduce bureaucracy because, once a person has been disclosure checked, their details can be ‘passported’; meaning it will no longer be necessary to carry out a disclosure check every time an individual starts a new job. Details of the new scheme will be developed through secondary legislation, and consultation on this is expected throughout 2008, with the scheme being live summer / autumn 2009.
In terms of differences between Scotland and the rest of the UK, it is anticipated that the new legislation Safeguarding Vulnerable Groups Act 2006 in England, Wales and Northern Ireland, will mean very similar systems operating throughout the UK and prevent cross border loopholes. This is most relevant to Recruitment and Selection procedures but also places legal duties on organisations to refer individuals if they meet
referral criteria to the barred lists if they are found unsuitable to work with children or vulnerable adults, by harming or placing them at risk of harm.
WHERE TO GO FOR MORE INFORMATION:
In Scotland there are Child Protection Committees in each local authority area, which are the equivalent to the English Safeguarding Boards. Employers can gain information and advice from their local Committee.
The organisation in Scotland that works to protect children is CHILDREN 1st: the Royal Scottish Society for Prevention of Cruelty to Children
They have a Child Protection in Sport Officer who can be contacted for advice at: CHILDREN 1st, Sussex House, 61 Sussex Street, Glasgow G41 1DY. T: 0141 418 5674; F: 0141 418 5671; Web: www.childprotectioninsport.org.uk/.