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 volunteers, Scotland’s Central Registered Body).
The Scottish Executive has postponed implementing a section of the Act that deals with organisations which fail to remove an individual from working with children whose name is on the list. The rationale behind this deferral is that further clarification is required on the position of retrospective checking of those who currently work or volunteer. The Scottish Executive has stated that this part of the Act shall be put into operation “as soon as practicable”.
Organisations which are found not to have carried out the necessary checks or have failed to make a referral will be guilty of a criminal offence. Both the organisation itself and people who exercise control within the organisation can be found guilty of the offence and liable to an unlimited fine and a prison term of up to five years.
When a referral is made, a panel of three senior officials, nominated to act on behalf of the Scottish Ministers, will consider the evidence and whether the individual should be added to the list.
If an initial assessment determines that it may be appropriate to add the person to the list, this will be done on a provisional basis. They will be informed and invited to submit comments and supporting evidence.
The referring organisation will then be given the opportunity to comment on that submission. The panel will consider whether the organisation which made the referral reasonably considered that person to have harmed a child or placed a child at risk of harm and whether they are unsuitable to work with children.
The individual and the referring organisation will be informed of the outcome and either the ‘provisional’ status of the listing will be removed, or the individual’s name will be removed from the list. It is expected that this process should take no more than six months.
Anyone wishing to dispute their inclusion on the list after this process can appeal to a sheriff, with a further right of appeal to the sheriff principal and Court of Session. There is also scope to apply to a sheriff for removal of a name from the list after it has been added.
Consequence of listing
A person whose name is on the list on a provisional basis will not be disqualified from working with children, but the provisional listing will be disclosed during any checks in relation to childcare work.
Where an individual is convicted of an offence against a child and is considered by the court to be unsuitable for working with children, the person will be added to the list. The person, and the organisation they are working for if they are working in a childcare position, will be notified.
People whose names appear on the list will be committing a criminal offence if they apply for, offer to do or accept any work in a childcare position.
Links with England, Wales and Northern Ireland
The Department for Education and Skills maintains a similar list. The Act provides for information from lists in England, Wales and Northern Ireland to be included in disclosure information for a childcare position in Scotland, and vice versa.
Given the offences created by the Act, organisations to which it applies should consider the introduction of a child protection policy. This should provide for the process of disclosure of criminal convictions and applications under Part V of the Police Act 1997. It is important to remember that the Act extends to anyone working in a childcare capacity, not just employees. Child protection policies should also make clear to all members of the organisation the circumstances in which it would be appropriate and necessary to make a referral, share concerns with parents and guardians and respond to disclosures made by others.
The Act will significantly enhance the protection of children, but it is important to understand that it complements, rather than replaces, other child protection measures.
Melanie Kerr is a partner in the employment, pensions and incentives practice group with Harper Macleod, Edinburgh
The mandate for the Scottish Executive to introduce the Disqualified From Working With Children List came from a ‘Programme for government’, which was published in September 1999. Two pre-legislative consultation papers were published in July 2000 and May 2001 and there was universal support for the proposition to establish an index of adults unsuitable to work with children and to create the associated offences.
The Protection of Children (Scotland) Act 2003 was then introduced, aiming to improve the safeguards for children by preventing unsuitable people from working with them. The Act allowed the Scottish Ministers to set up the Disqualified From Working With Children List, which came into operation on 10 January 2005.
At this time, there is no equivalent Disqualified From Working With Children List in England and Wales.
What HR should do
All organisations entrusted with the care of children should:
- Carry out interviews
- Fully investigate each applicant’s employment history
- Take up references before
- Make the appropriate checks for criminal convictions through Disclosure or Disclosure Scotland
- Supervise the recruit during any probationary period and monitor staff during employment where practical
The referral form can be downloaded from the Scottish Executive’s website, copied from Annex B to the guidance referred to above, or a paper copy can be obtained by calling the general enquiry line.
The envelope returning the referral and supporting documentation should be marked ‘Restricted – personal information’ and posted to The manager, PO Box 23628, Edinburgh, EH6 6ZH
The Scottish Executive http://www.scotland.gov.uk/about/ED/CnF/00017834/list.aspx
Guidance for organisations http://www.scotland.gov.uk/library5/education/pcagfo.pdf or telephone 0131 224 1567
Disclosure Scotland www.disclosurescotland.co.uk
Central Registered Body www.crbs.org.uk