Healthcare professionals - supporting children and young people who may have experienced child sexual abuse: clinical pathway

Appendix A – Age of a child or young person

While child protection procedures may be considered for a person up to their 18^th birthday, the legal boundaries of childhood and adulthood are variously defined. There are overlaps which are relevant when considering multi-agency plans and clinical pathways for a child or young person who may have experienced sexual abuse.

In Part 1 of the Children (Scotland) Act 1995, which deals with matters including parental rights and responsibilities, a child is generally defined as someone under the age of 18, but most of the provisions apply only to children under the age of 16. Chapter 1 of Part 2 deals with support for children and families and includes local authorities’ duties in respect of looked-after children and children “in need”. For these purposes, a child is also defined as someone under the age of 18.

The Children’s Hearings (Scotland) Act 2011 contains provisions about the Children’s Hearings system and child protection orders. Section 199 states that, for the purposes of this Act, a child means a person less than 16 years of age. However, this section provides qualifications:

• In the ground for referral to a hearing under section 67(2)(o) (failure to attend school), “child” means a person who is of school age, and school age has the definition in section 31 of the Education (Scotland) Act 1980
• “Child” includes any child who has turned 16 after being referred to the reporter, until the reporter makes a decision not to arrange a hearing, or a hearing makes a decision to discharge a referral
• Children who are subject to a Compulsory Supervision Order under the Act on or after their 16th birthday are also treated as children until they reach the age of 18, or until order is terminated if this occurs first
• Where a sheriff remits a case to the Principal Reporter under section 49(7)(b) of the Criminal Procedure (Scotland) Act 1995, then the person is treated as a child until the referral is discharged, any compulsory supervision order in place is terminated, or the child turns 18, whichever occurs first

Under the Sexual Offences (Scotland) Act 2009 an adult is someone aged 16 years of age and over, an older child is defined as someone between the ages of 13 and 15 and a younger child refers to someone under the age of 13.

The Human and Exploitation (Scotland) Act 2015 defines a child as a person under 18 years in relation to the crime of trafficking. When s38 of this Act is implemented there will be a statutory duty on certain public bodies to notify Police Scotland about possible victims of human trafficking. The sexual abuse of trust offence applies to persons 18 and over who are in a defined position of trust (such as teachers, care workers and health professionals) intentionally engaging in sexual activity towards a person under 18 years (Sexual Offences (Scotland) Act 2009, s42). The Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 also defines a child as a person less than 18 years in relation to sexual exploitation of children under the age of 18 through prostitution or pornography.

Under the Children and Young People (Scotland) Act 2014, a “child” is defined, for the purposes of all Parts of that Act, as someone who has not yet attained the age of 18. The individual young person’s circumstances and age will dictate what legal measures can be applied. For example, the Adult Support and Protection (Scotland) Act 2007 can be applied to over-16s when the criteria are met.

Under the sections 32(3) and 33(2) and (4) of the Education (Scotland) Act 1980, a person is of school age if he has attained the age of five years and has not attained the age of sixteen years.

Where a young person aged 16 and 17 requires support and protection, services will need to consider which legal framework best fits each persons’ needs and circumstances. Consideration must be given to the issue of consent. While it is inherently unfair to ask for consent for information sharing or an action when this must occur anyway, it is always appropriate to seek the views of the person, and to take these into account. In the vast majority of areas, the Mental Health (Care and Treatment) (Scotland) Act 2003 follows the Children (Scotland) Act 1995 in considering a child to be under the age of 18 but there are some specific provisions which define a child as being someone who has not reached the age of 16. This does not affect a young person’s ability to consent to medical treatment (see below), but this legislation ensures that additional safeguards are in place when a person aged under 18 needs compulsory care and treatment in relation to their mental health.

The Adults with Incapacity (Scotland) Act 2000 safeguards people who do not have capacity in relation to making decisions about their welfare and/or finances. This legislation applies to those aged 16 and over.

The Adult Support and Protection (Scotland) Act 2007 also applies to those aged 16 and over. An "adult at risk" is someone who:

• is unable to safeguard their own wellbeing, property, rights or other interests
• is at risk of harm
• and because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected

An adult is at risk of harm if another person is causing (or is likely to cause) the adult to be harmed, or the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm. The entirety of a person’s particular circumstances can combine to make them more vulnerable to harm than others. This legislation primarily places an emphasis on support but also provides a framework for intervention if someone requires protection.

When it comes to a medical procedure or treatment, the Age of Legal Capacity (Scotland) Act 1991 (section 2(4)) gives medical practitioners authority to make a judgement about the level of understanding of a child: “A person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment.”

Section 67 of The Children and Young People (Scotland) Act 2014 inserted a new section, 26A, into the Children (Scotland) Act 1995. From April 2015, a young person born after 1 April 1999 who is looked after in foster, kinship or residential care is eligible to remain in their current care placement until they turn 21. This is called Continuing Care.