Protecting children: review of section 12 of the Children and Young Persons (Scotland) Act 1937 and section 42 of the Sexual Offences (Scotland) Act 2009 - consultation

Annex D: Current Legal Framework

Below are key pieces of legislation that provide protection for children and young people in Scotland.

Children (Scotland) Act 1995

• This remains one of the cornerstone pieces of legislation for structuring the range and scope of state intervention in the lives of children and their families. It addresses parental responsibilities and rights, and makes provision for guardianship and looked after children..

Children’s Hearings (Scotland) Act 2011

• This Act establishes the framework for the protection of children through compulsory measures of supervision. The Act makes provision for the Children’s Hearings System. It sets out when referrals ought to be made to the Children’s Reporter, the mechanisms and forms that compulsory measures might take, and emergency measures that may be necessary for the protection of children, including child protection orders and child assessment orders, emergency applications to justices of the peace, and the powers of a police constable to remove a child to a place of safety.

Children and Young People (Scotland) Act 2014

• Broadly speaking, the Act makes provision for: the rights of children and young people; investigations by the Commissioner for Children and Young People in Scotland; the provision of services and support for (and in relation to) children and young people; the provision of Named Person and Child’s Plan; extension of early learning and childcare; the role of the corporate parent; the extension of aftercare to support care leavers, up to the age of 25; introducing a right for 16 year olds in foster, kinship or residential care to stay in care until the age of 21; support for kinship care; creation of the adoption register; amendments to children’s hearings legislation; appeals against detention in secure accommodation; the provision of free school lunches.

Criminal Justice (Scotland) Act 2003

• Section 51 contains provisions concerning the physical punishment of children.
• NB, a proposed Member’s Bill, the Children (Equal Protection from Assault) (Scotland) Bill, may result in amendments or repeal of relevant parts of s.51 in order to achieve its stated aimed of prohibiting the physical punishment of children by ending the existing common law position that physical punishment by parents can be defended as reasonable chastisement and therefore be lawful. The Scottish Government’s proposed Bill would not create a new criminal offence, as the common law offence of assault would apply (with a modification removing the reasonable chastisement defence).

Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005

• This legislation introduced a number of offences including that of ‘grooming’ a child under 16 for sexual purposes.
• It also introduced an offence of paying for sexual services from a person under the age of 18, including causing, inciting, controlling, arranging or facilitating the provision of sexual services by children/young people or child pornography.
• Section 2 introduced Risk of Sexual Harm Orders. These court orders are designed to protect a child or young person from a person who has engaged in sexually explicit conduct or communication with a child or children, even where the person has not been convicted of any offence. This is a civil order, sought via the Chief Constable through application to the Sheriff. It is not a substitute for the criminal process, but rather is a means of protecting children at an earlier stage.

Sexual Offences (Scotland) Act 2009

• The Act provides for a statutory framework for sexual offences in Scots law.
• Part 4 of the Act provides for offences which criminalise sexual activity with children under 16 (the age of consent for sexual activity). Further, the Act introduces a number of ‘protective offences’ which criminalise sexual activity with individuals who, by virtue of their age or capacity, may not be able to consent to sexual activity freely.
• It also creates an offence to coerce a person, or to cause a child under the age of 16, to view a sexual image or receive a sexual communication, where it is done for the purpose of obtaining sexual gratification or causing the recipient fear, alarm or distress.
• Sections 42-45 introduce a new offence of ‘abuse of position of trust’ in respect of a child, 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 .

Prohibition of Female Genital Mutilation (Scotland) Act 2005

• The legislation outlaws specified FGM procedures and makes it an offence to aid or abet a person in carrying out such procedures. It also makes it an offence to take or send a girl abroad for the purposes of subjecting her to FGM procedures.

Human Trafficking and Exploitation (Scotland) Act 2015

• Section 6 establishes a statutory aggravation to the offence of human trafficking, where the offence is committed against a child. The statutory aggravation must be recorded upon conviction and is therefore subject to disclosure under the PVG. Evidence that the victim is a child does not require to be corroborated.

The Civic Government (Scotland) Act 1982, Sections 52 and 52A

• Sections 52 and 52A make it an offence to have in your possession or to make, take or distribute indecent images of children

The Abusive Behaviour and Sexual Harm (Scotland) Act 2016

• This Act criminalises the non-consensual sharing of intimate images of another person.
• It also introduces Sexual Risk Orders ( SROs) which, once brought into force, will strengthen and replace the current Risk of Sexual Harm Order provisions in the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005. SROs are a civil prevention order which are designed to protect the public from sexual harm. The order may be made in relation to a person without a conviction for a sexual offence (or any offence), but who poses a risk of sexual harm. The SRO may be made by the court on application, by the police, where an individual has done an act of a sexual nature, e.g. engaged in sexually explicit conduct or communication with a child or children.

The Domestic Abuse (Scotland) Act 2018

• The Scottish Government’s Domestic Abuse (Scotland) Act 2018, recently passed by the Scottish Parliament, creates a new offence that modernises the criminal law to reflect our understanding of what domestic abuse is.

• The new offence criminalises conduct between partners and ex-partners and will allow the court to consider all of the abuse carried out by the perpetrator towards their partner or ex-partner over a cumulative period as a single offence, rather than requiring each individual incident of abuse to be prosecuted as a separate offence.
• The Act recognises the harm that can be caused to children by the abuse of their parent or carer through the creation of a statutory sentencing aggravation. This aggravation applies when a perpetrator involves a child in the commission of the abuse, or where a child sees, hears or is present when the abuse is taking place, or where a reasonable person would consider it likely that a child living with the victim or perpetrator would be adversely affected by the abuse.
• The aggravation requires to be taken into account by the court when sentencing the perpetrator with a view to enhancing the sentence to be imposed. Where the aggravation is proven, this will be formally recorded by the court and be noted on the offender’s criminal record.