Appendix B: An Overview of Legislation and International Treaties
The UK Government ratified the United Nations Convention on the Rights of the Child (UNCRC) 1989 in 1991. Under Article 19, the state must protect children from all forms of violence, abuse, neglect and mistreatment and Article 34 requires states to protect children from sexual exploitation and sexual abuse.
The Children (Scotland) Act 1995 has provided the main legal framework for child welfare and protection in Scotland. Local authorities have a duty to safeguard and promote the welfare of children in their area. Section 19 sets out the responsibilities for each local authority to prepare plans for children's services in their area.
The Local Government in Scotland Act 2003 outlines the duty on local authorities to establish and maintain a process of community planning and the power to enhance well-being.
The Commissioner for Children and Young People (Scotland) Act 2003 creates the post of Commissioner for Children and Young People with the general function of promoting and safeguarding the rights of children and young people. This includes everyone in Scotland up to the age of 18, and those up to 21 years who have been "looked after" by a local authority.
The primary policy objective of the Protection of Children and Sexual Offences (Scotland) Act 2005 is to improve the protection given to children and young people from those who would wish to cause them sexual harm, or exploit them for sexual purposes. The Act also aims to improve the protection given to adults and children alike from those convicted of sexual offences who still pose a risk of sexual harm.
Under the Adult Support and Protection (Scotland) Act 2007 (section 42), Adult Protection Committees have been placed on a statutory footing. In some areas, there has been integration with Adult Protection Committees and Child Protection Committees.
Notifying the death of a looked after child is a statutory duty of the local authority looking after that child under regulation 6 of the Looked After Children (Scotland) Regulations 2009. The local authority must, as soon as reasonably practical, notify the Scottish Ministers and Social Care and Social Work Improvement Scotland (known as the Care Inspectorate).
The Adoption and Children (Scotland) Act 2007 modernised the system of adoption in Scotland and introduced Permanence Orders as an additional long term option alongside adoption to provide long-term security for children who could not live with their families.
The Sexual Offences (Scotland) Act 2009 creates new statutory offences of rape, sexual assault by penetration, sexual assault, sexual coercion, coercing a person to be present during sexual activity, coercing a person to look at an image of sexual activity, communicating indecently, sexual exposure, voyeurism and administering a substance for a sexual purpose. The Act also creates new "protective offences" which criminalise sexual activity with a person whose capacity to consent to sexual activity it either entirely absent or not fully formed either because of their age or because of a mental disorder. Separate "protective" offences are provided for in respect of sexual activity with young children (under the age of 13) and older children (from age 13 to age 15). In addition, the Act makes it an offence of "abuse of position of trust" for a person in a position of trust (over a child or person with a mental disorder) to engage in sexual activity with that child or person.
The Children's Hearings (Scotland) Act 2011 sets 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 Reporter Administration. When actions are required to protect children from abuse and neglect, Child Assessment Orders, Child Protection Orders and Interim Orders are used under 2011 Act.
The Police and Fire Reform (Scotland) Act 2012 creates a single police service and a single fire and rescue service. Under section 37(1), the policing principles are to improve the safety and well-being of persons, localities and communities in Scotland. There is a requirement for the chief constable to make arrangements for local policing, including establishing a new formal statutory relationship with each local authority and designating a local commander for each local authority area (section 44-47).
The Public Bodies (Joint Working) (Scotland) Act 2014 requires councils and NHS boards to create an integration authority to be responsible for the strategic planning of adult social care services, some health services and other functions delegated to it. It is also responsible for ensuring the delivery of those functions. The Integration Joint Board ( IJB) also has an operational role as described in the locally agreed operational arrangements set out within their integration scheme. The Act also allows councils to integrate children's and families' services and criminal justice social work.
The Children and Young People (Scotland) Act 2014 outlines the duties and planning arrangements that should be in place for children's services to safeguard, support and promote the wellbeing of children and young people (from 1 st April 2017). The Child's Plan - which can include a Child Protection Plan - is required when a child has a wellbeing need that requires a targeted intervention as set out in Part 5: Child's Plan of the 2014 Act. Notifying the death of a person being provided with aftercare under section 29 (10) of the Children (Scotland) Act 1995 became a statutory duty of the local authority under section 29(10) of the 1995 Act when section 66 of the Children and Young People (Scotland) Act 2014 came into force. Notifying the death of a person being provided with continuing care became a statutory of the local authority under section 26A (10) of the 1995 Act when section 67 of the 2014 Act came into force.
The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 makes provision for the holding of public inquiries in Scotland with respect to fatal accidents, deaths of persons in legal custody, sudden, suspicious and unexplained deaths and deaths occurring in circumstances that give rise to serious public concern. This replaces the earlier Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976.
Email: Judith Ainsley