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. 41 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, 42 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 the amount of 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 Police Officer from the Sheriff. It is not intended as a substitute for criminal process but rather as a means of protecting children at an earlier stage.
10. This Act also extended the powers available under the Sexual Offences Act 2003 to allow courts to impose a Risk of Sexual Harm Order at the time of conviction for a sexual offence.
Sexual Offences (Scotland) Act 2009
11. 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 '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.
12. 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.
Legislation on managing adults who may pose a risk to children
Police Act 1997
13. 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 Children (Scotland) Act 2003
14. The primary focus of this legislation is the power to allow Scottish Ministers to establish a list of those disqualified from working with children. In any circumstance where an organisation considers that someone who has access to children in a paid or voluntary capacity has harmed a child or put a child at serious risk of harm, they have a legal obligation to notify Scottish ministers. The person concerned need not have been convicted of a criminal offence in respect of said child or children. Section 11(3)(a), for example, created an offence for an organisation to knowingly engage someone who they know to have been disqualified from working in a child care position. This legislation will shortly be repealed and replaced by the Protection of Vulnerable Groups (Scotland) Act 2007.
Protection of Vulnerable Groups (Scotland) Act 2007
15. The Protection of Vulnerable Groups (Scotland) 2007 ( PVG) Act is Scotland's response to the principal recommendation of the Bichard Inquiry following the tragic murders in Soham in 2002. In 2011, the Scottish Government is planning to introduce 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.
16. 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.
Legislation on criminal proceedings and witness supports
Sexual Offences (Procedure and Evidence) (Scotland) Act 2002
17. 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 extent of the powers under 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
18. 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.
19. 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.
20. 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.
21. There is extensive guidance available on the subject. 43 The 2004 Act underpins the acceptance that oral evidence is no longer the only means by which testimony can be given by children.
Asylum and Immigration (Treatment of Claimants, etc.) Act 2004
22. 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.
23. 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
24. 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.
Adoption and Children (Scotland) Act 2007
25. 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.
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.