The Protection of Children (Scotland) Act 2003 came into force on 10 January 2005, and its implementation means that organisations must check whether anyone who wishes to work in a childcare position is on a 'Disqualified from Working with Children List', before they start work.
The Act's effects are widespread and almost all regulated activity with children is covered. Obligations are imposed on all organisations, including limited companies, partnerships and sole traders, where people work with children. 'Work' includes work of any kind, whether paid or unpaid, and whether under an employment or training contract or on a self employed basis.
Duty to refer
The Act creates a legal duty on employers to make a referral to Scottish ministers when a person working in a childcare position has harmed a child or placed a child at risk and has been dismissed or moved away from contact with children as a consequence.
A referral must also be made when a person's employment has ended because they resigned, retired, were made redundant or their contract expired if the employer would have dismissed, or considered dismissing them, because they harmed a child or placed a child at risk.
It is a criminal offence to fail to make such a referral and professional and regulatory bodies will also be under a duty to make referrals.
Working with children (whether paid or otherwise) is widely defined in the Act as "supervising, children, while participating in any other organised activity". As a result of this wide definition, organisations should carefully consider whether the provisions apply to them. Under the Act, a child is defined as anyone under 18 years of age.
The Act provides for a list of people who are considered unsuitable to work with children to be compiled by the Scottish ministers, to be known as the Disqualified from Working with Children List.
People named on the list are considered to be 'disqualified'. Once the Act is fully implemented, organisations that knowingly employ a disqualified person to work in a childcare position, procure such work for a disqualified person or fail to remove a disqualified person from a childcare position will be guilty of a criminal offence.
Organisations will be able to check the list through the systems already used to check whether individuals have criminal convictions (through Disclosure Scotland or, for vo