Accessibility Options Printer friendly Email us Contact us

Protection of Children (Scotland) Act 2003 [S]

An Act of the Scottish Parliament to require the Scottish Ministers to keep a list of individuals whom they consider to be unsuitable to work with children; to prohibit individuals included in the list, and individuals who are similarly regarded in other jurisdictions, from doing certain work relating to children; to make further provision in relation to that list; and for connected purposes.




Main Provisions

The Act is comprised of 18 sections:

Section 1 - Duty of Scottish Ministers to keep list

This section provides for a list to be set up and for individuals to be included in the list when the criteria and procedures set out later in the Bill are satisfied. It also allows for the Scottish Ministers to remove an individual from the list but only when satisfied that the individual should not have been included in the list.

Section 2 - Reference following disciplinary action etc.

This section places a duty on child care organisations to refer individuals to the list and allows other organisations to make referrals. Child care organisations and organisations are defined in section 16.

Referrals can be made only when a person has harmed a child or put a child at risk of harm and has, as a consequence, been dismissed, transferred, resigned, retired, been made redundant or suspended. No referral can be made unless the organisation has (or would, but for a resignation, retiral or redundancy, have) taken steps to remove the individual from their present position.

Section 3 - Reference by employment agency etc.

This section enables employment agencies and employment businesses to refer individuals to the list in the same way as in section 2. This will cover child care workers employed through or supplied by employment agencies and businesses (for example, nannies recruited through an agency).

Section 4 - Reference by certain other persons

This enables the Scottish Commission for the Regulation of Care and the Scottish Social Services Council to refer individuals to the list. The Scottish Commission for the Regulation of Care regulates a range of care services for children in Scotland including daycare for children and childminders. This will cover referrals for childminders and managers where there is no employing child care organisation to make a referral under section 2. The Scottish Social Services Council will maintain a register of social workers and other social service workers.

This section also confers power on the Scottish Ministers to make an order extending the type of persons who may refer individuals under this section. This allows for other regulatory bodies to be added when it is considered appropriate to do so.

Section 5 - Inclusion in list

This section describes the procedures to be followed by the Scottish Ministers in considering a reference.

Subsection (2) requires the Scottish Ministers, before making a determination, to be satisfied that-

  • the referral is not vexatious or frivolous; and

  • the information submitted by the organisation indicates that it reasonably considered the individual to have harmed a child or placed a child at risk of harm and that the individual is unsuitable to work with children.

Section 6 - Individuals named in the finding of certain inquiries

This section allows for Scottish Ministers to include individuals named in relevant inquiries. The Scottish Ministers must be satisfied that the person who held the inquiry, reasonably considered that the individual had harmed a child or put a child at risk of harm while working in a child care position: and that the individual is unsuitable to work with children - if those conditions are met, the individual's name must be added to the list.

Section 7 - Provisional inclusion in list

This section requires the Scottish Ministers to provisionally list the individual once they have sufficient information to proceed to a determination under section 5 or 6, and that the individual should be notified of their provisional listing. The Scottish Ministers are also required to notify the individual's employer, where known, of the provisional listing, if the individual is working in a child care position.

Section 8 - Determination under section 5 or 6: power to regulate procedure

This section allows the Scottish Ministers to make regulations setting out in further detail the procedures that are to be followed in relation to a determination on whether to list an individual.

Section 9 - Individuals convicted of an offence against a child

This section provides for individuals who have been convicted of an offence against a child (or acquitted on grounds of insanity) to be referred by the sheriff or judge to the Scottish Ministers for inclusion in the list.

Section 10 - Offences relating to work in a child care position

This section creates two new offences both of which attract the same penalties (set out in subsection (7)):
  • An individual disqualified from working with children (as defined in section 15) commits an offence if he or she applies for, offers to do, accepts or does any work in a child care position.


  • An organisation commits an offence if it offers child care work to a disqualified individual; fails to remove a disqualified individual; or moves the individual into a position involving such work.

Section 11 - Searches of lists: amendment of Police Act 1997

This section provides for the fact that a person is included in the list of persons unsuitable to work with children to be released as part of a check made under Part V of the Police Act 1997 (c.50). It provides that criminal record certificates will reveal whether the individual is included in the list.

Section 12 - Application for removal from list

This section allows an individual to apply to the sheriff for a review of their listing. It allows individuals to apply to be removed from the list. The sheriff must grant such an application if satisfied that the individual is not unsuitable to work with children.

Section 13 - Appeals: inclusion in list under section 5 or 6 etc

This section allows for those included in the list under section 5 or 6 to appeal against such inclusion to a sheriff within 3 months of the listing. An individual who has unsuccessfully appealed may appeal the sheriff's decision to the sheriff principal.

Section 14 - Appeals: inclusion in list following conviction of offence against a child

This section amends Parts VIII and X of the Criminal Procedure (Scotland) Act 1995 (c.46) to ensure that appeals against listing as a result of a criminal conviction are dealt with as part of the same process as appeals against that conviction. Individuals will only be listed when their time for appeal has expired or the appeal has been dismissed or abandoned.

Section 15 - Meaning of ""disqualified from working with children""

This section sets out the categories of individuals who are, for the purposes of the Bill, ""disqualified from working with children"". These include individuals included in the list and in the equivalent list kept, in England and Wales, under section 1 of the Protection of Children Act (c.14). It also includes individuals who are included in other similar lists kept in England and Wales and individuals subject to a disqualification order. Subsection (2) allows the Scottish Ministers to extend the definition to provide that individuals disqualified from working with children in other jurisdictions are similarly disqualified, for the purposes of the Bill, in Scotland.

Section 16 - Interpretation

Meaning of 'child care organisation', subsection 1:
  • an organisation which fulfils the conditions set out in subsection (2) or

  • the managers of an educational establishment
Definition of 'child care organisation', subsection 2:

'That the organisation is concerned with the provision of accommodation, social services or health services to children, or the supervision of children.'

Definition of 'child care position', detailed in Schedule 2(1):

1. Whose normal duties include providing, or working for an organisation which provides, a care home service or an independent health care service which is provided exclusively or mainly for children;

2. Whose normal duties include caring for, training, supervising or being in sole charge of children;

3. Whose normal duties involve unsupervised contact with children under arrangements made by a responsible person;

4. Whose normal duties include caring for children under the age of 16 in the course of the children's employment;

5. A substantial part of whose normal duties include supervising or training children under the age of 16 in the course of the children's employment.


Background

Lord Cullen's Report on the public inquiry into the shootings at Dunblane Primary School, and the Children's Safeguards Review undertaken by Roger Kent, identified the need for adequate checks on the suitability of people working with children and young people. The Bill is intended to improve safeguards in place to protect children temporarily or permanently in care of persons other than their parents, guardians or relatives. The Bill is designed to strengthen the protection of children by identifying and making known to the prospective employers, people who are considered unsuitable to work with children, whether in paid or unpaid positions.

This Bill provides for a list of persons unsuitable to work with children to be established and maintained by the Scottish Ministers. Persons on the list will be banned from working with children and will commit an offence if they ignore the ban. Organisations will commit an offence if they employ an individual who is on the list.


Timeline

The Bill was introduced in the Scottish Parliament on 6 September 2002 by Cathy Jamieson.

The Scottish Parliament's Education, Culture and Sport Committee called for evidence seeking views on the general principles of the Protection of Children (Scotland) Bill.

The Education, Culture and Sport Committee's Stage 1 report was debated and endorsed in Parliament on 20th November. The Bill has returned to the Committee for Stage 2 scrutiny. Stage 2 of the Bill was completed on 10th December 2002.

January 2003

Protection of Children (Scotland) Bill - 1st Marshalled List of Amendments for Stage 2.

Protection of Children (Scotland) Bill - 2nd Marshalled List of Amendments for Stage 2.

Stage 2 Bill re-produced as amended.

Stage 3 was debated in the Scottish Parliament on 12/02/03, and the Bill was passed. Bill as passsd published.

The Bill received Royal Assent on 19/03/03.

Stage 1: (History)

Committees:
Education, Culture and Sport Committee on 24 September 2002; 1, 8 October
2002; 5, 12 November 2002
Justice 1 Committee on 29 October 2002
Subordinate Legislation Committee on 8, 29 October 2002

Parliament:
20 November 2002

Stage 2: (History)

Committees:

Education, Culture and Sport on 3, 10 December 2002.

Stage 3

Stage 3 was debated in the Scottish Parliament on 12/02/03, and the Bill was passed.

The Bill received Royal Assent.

Further Information

  1. Protection of Children (Scotland) Bill - Marshalled List of Amendments selected for Stage 3
  2. Protection of Children (Scotland) Bill - Bill (as passed)
  3. New amendments to Protection of Children (Scotland) Bill Stage 3 lodged 05/02/03
  4. EDUCATION COMMITTEE CALLS FOR WRITTEN EVIDENCE ON PROTECTION OF
  5. Child Protection (Scotland) Bill as Introduced
  6. Protection of Children (Scotland) Bill: Stage 1 Minutes
  7. Protection of Children (Scotland) Bill - 1st Marshalled List of Amendments for Stage 2.
  8. New amendments to Protection of Children (Scotland) Bill Stage 3 lodged on 6 February.
  9. Protection of Children (Scotland) Bill - (as amended at Stage 2)
  10. Protection of Children (Scotland) Bill - 2nd Marshalled List of Amendments for Stage 2.
  11. Child Protection (Scotland) Bill - Explanatory Notes
  12. 15th Report 2002
  13. Protection of Children (Scotland) Act 2003: Guidance for Individuals