Protecting Children and Young People: Framework for Standards
Annex C: Relevant legislation
This Framework for Standards is drawn up in accordance with current legislation and regulation which may be periodically subject to change and reform.
A number of Acts of Parliament govern the work of public bodies and this Annex provides a brief summary of the main legislative provisions. It identifies those Acts that require or enable agencies or professionals to secure help for children who are at risk of or have been abused or neglected. It also identifies those Acts which protect the rights of children or their parents when agencies take action.
It is not intended to be a comprehensive legal guide. In this Annex references to Acts in so far as possible are references to the amended versions of the legislation.
Legislation and practice in child protection are underpinned by principles derived from Articles of the United Nations Convention on the Rights of the Child, ratified by the UK Government in 1991. These principles are:
- each child has a right to be treated as an individual;
- each child who can form a view on matters affecting him or her has the right to express those views if he or she so wishes;
- parents should normally be responsible for the upbringing of their children and should share that responsibility;
- each child has the right to protection from all forms of abuse, neglect or exploitation;
- so far as is consistent with safeguarding and promoting the child's welfare, public authorities should promote the upbringing of children by their families; and
- any intervention by a public authority in the life of a child must be properly justified and should be supported by services from all relevant agencies working in collaboration.
The Children (Scotland) Act 1995
This is the main piece of legislation relevant to the protection of children in Scotland and its main principles are:
1. The welfare of the child is the paramount consideration when his or her needs are considered by Courts, Children's Hearings and Local Authorities.
2. No Court should make an Order relating to a child and no Children's Hearing should make a supervision requirement unless the Court or Hearing considers that to do so would be better for the child than making no Order or supervision requirement at all.
3. The child's views, taking appropriate account of age and understanding, should be taken into account where major decisions are to be made about his or her future.
The Act enables any person to give information to the Reporter if they believe that compulsory measures of care may be necessary to protect a child and requires police and local authorities to do so. It also enables any person to apply to a Sheriff for a Child Protection Order if they are concerned that the child is suffering or is likely to suffer significant harm.
A local authority can apply to a Sheriff for a Child Assessment Order if they need an assessment to establish if a child is at risk of significant harm and it is unlikely that the assessment can be carried out without a court order. A local authority can also apply to the sheriff for an Exclusion Order to exclude a named person from a child's home if that person is likely to cause significant harm to the child.
The Data Protection Act 1998
All those involved with children are likely to hold personal information about them, including sensitive personal information. The Act covers how personal information about living, identifiable people is to be protected. All organisations that hold or process personal data must comply. The Act requires that data is gathered and processed fairly, is held securely and is used solely for the purpose for which it was collated.
Data controllers must be aware of the protections and safeguards which are afforded by the Act but must also be aware of the wider context. For example, the Act is interpreted in the light of Article 8 of European Convention on Human Rights which guarantees the right of each person to respect for his private and family life, his home and his correspondence, as well as any relationship of confidentiality. At the same time those holding such information must balance the rights and freedoms of others, the interests of public safety, the protection of health and morals and the prevention and detection of crime all of which may relate to protecting children, so that there may be circumstances in which the disclosure of information, which would ordinarily be protected, is necessary and justifiable.
The Age of Legal Capacity (Scotland) Act 1991
Children under 16 do not normally have legal capacity but this Act identifies the circumstances in which children can act in a way that is legally competent. The Act specifies when children and young people can consent to medical treatment or instruct a solicitor.
Social Work (Scotland) Act 1968
The Act places a duty on local authorities to "promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area".
National Health Service (Scotland) Act 1978
The Act imposes a duty on Scottish Ministers to provide a comprehensive and integrated health service to promote physical and mental health and to provide for the prevention, diagnosis and treatment of illness, and to set up health boards to deliver these services.
The Act includes a duty on health boards, local authorities and education authorities to co-operate with one another to secure and advance the health of the people of Scotland. It also imposes a duty on Scottish Ministers to provide medical inspection services and supervision of the health of school children and for health boards and education authorities to encourage and assist pupils to take advantage of the facilities provided.
The Education (Scotland) Act 1980
The Act provides a link into section 39 of the 1978 Act for Education Authorities to encourage pupils to make use of medical facilities provided. Where a child has not attended for routine medical inspection and an education authority has concerns about that child's health, the authority can require parents to submit their child for medical examination.
Additional Support for Learning Bill
The Bill which is presently before the Scottish Parliament proposes to create a duty for education authorities to make arrangements to identify those children and young persons within their area for whose school education they are responsible, who have additional support needs, so that without the provision of additional support, they are or are likely to be, unable to benefit from school education. It also proposes a duty for other appropriate agencies such as local authorities, health boards and others to help the education authority in providing that additional support to such children and young persons.
The Housing (Scotland) Act 1987
The Act requires local authorities to treat homeless persons with dependent children, those under 21 years of age and those who are over 16 who have been looked after, have been in care or have been subject to a supervision order as having a priority need for accommodation. When carrying out their duties under the Act authorities must have regard to the best interests of the child/children when considering the needs of homeless families and must ensure accommodation is suitable for their occupation.
Foster Children (Scotland) Act 1984
The Act requires each local authority to secure the welfare of children in their area who are fostered (including those who are privately fostered) and to visit and give advice on care and maintenance of those children. The local authority can inspect premises, impose conditions and remove children from unsuitable surroundings or carers.
The Police (Scotland) Act 1997 and
The Protection of Children (Scotland) Act 2003
There are a number of measures to protect children from those who are unsuitable to work with them. One of the measures available is the disclosure checks which are used by employers to check the suitability of any prospective employee. Applications for disclosure certificates are made to Disclosure Scotland, which is part of the Scottish Criminal Records Office, under The Police (Scotland) Act 1997. The certificates issued will include relevant information on criminal convictions. They will also include information from the List to be established under The Protection of Children (Scotland) Act 2003 when this Act is brought into force on individuals unsuitable to work with children.
The 2003 Act provides that a person working in a child care position (paid or unpaid) will be referred to the List by their employer (or other specified bodies) if he or she harms a child or puts a child at risk of harm and is dismissed, resigns or is moved away from access to children as a consequence.
Those convicted of offences against a child will be referred to the List by the courts. Once an individual is on the List, he or she will commit an offence if they apply to or work with children and it will be an offence to knowingly employ someone who is disqualified from working with children.