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

Part 1. Introduction and how to respond to this consultation

1.1 In February 2016 The Scottish Government initiated CPIP, including asking Catherine Dyer to Chair a review of Child Protection Systems. The Scottish Government’s intention in initiating CPIP was to identify where recommendations for sustainable improvement could be made, building upon the recognised strengths of the current systems and practice already in place.

1.2 As part of CPIP, we undertook three pieces of work related to neglect. Firstly, we asked the Centre for Child Wellbeing and Protection ( CCWP) at the University of Stirling to review existing policy, legislation and literature on neglect ^[1] , and to update the 2012 national survey on neglect.

1.3 We also asked the Centre of Excellence for Looked After Children In Scotland ( CELCIS) to undertake a pilot programme of work around approaches to neglect in three local areas. This is looking at how education, health and children’s services work together to tackle neglect, and then to influence practice change in a sustainable and scalable way across their local area.

1.4 Finally, we conducted a review of the current criminal law regarding neglect and abuse of children, set out in section 12 of the Children and Young Persons (Scotland) Act 1937 ("section 12") (see Annex E for the full text of the current section 12 wording). In conducting this review, we consulted with the Crown Office and Procurator Fiscal Service ( COPFS), Police Scotland, front line practitioners and a wide range of key partners across the children’s service sector, including the External Advisory Group of CPIP. We also considered some of the evidence provided in response to the Scottish Government informal consultation on " Proposals for the creation of an Offence of Wilful Neglect or Ill-treatment with regard to services for Children under the age of 18", conducted in 2015.

1.5 The conclusion to this review is that sufficient evidence exists to suggest that exploring the merits of updating and modernising the section 12 offence is warranted, and this exploration should be done in consultation with partners across the sector.

1.6 In March 2017 both the CPIP and Systems Review reports were published. The Systems Review report made 12 recommendations and the CPIP report set out 45 actions, one of which was to hold a formal public consultation on section 12 of the Children and Young Person’s (Scotland) Act 1937 to explore the limitations of the current offence and the scope of a reframed offence.

1.7 All actions and recommendations were accepted by Ministers, and the Scottish Government continues to work closely with partners to ensure that the actions and recommendations are implemented. You can read about this on our CPIP blog.

1.8 In his statement to the Scottish Parliament in March 2017 on the CPIP report, the former Minister for Childcare and Early Years confirmed that "[section 12] targets physical neglect and harm of children and young people but does not take account of our modern day understanding of neglect….[N]ew legislation will be brought before this session of Parliament introducing a new definition and criminal offence of abuse and neglect of children. Given that it has taken 80 years as a society to make this change, it is vital that we get it right."

1.9 The consultation also seeks views on reforming the offence of ‘sexual abuse of trust’ at section 42 of the Sexual Offences (Scotland) Act 2009. This provides that a person who looks after children under the age of 18 in a range of institutional settings, including schools, hospitals, care homes and young offenders’ institutions commits a criminal offence if they engage in sexual activity with a child whom they look after in that institution, irrespective of whether the child has attained the age of consent.

1.10 This follows a report on Child Protection in Sport by the Health and Sport Committee of the Scottish Parliament in April 2017, which highlighted the NSPCC’s recommendation that the offence should be extended to cover other people undertaking regulated work with children outside of an institutional setting, such as sports coaches. In their response to the Committee of 29 June 2017, the former Minister for Childcare and Early Years and the then Minister for Public Health and Sport indicated that consideration would be given to extending the current scope of the abuse of trust offence as a part of the Scottish Government’s review of the law concerning abuse of children.

1.11 In launching this consultation, we do so within the context of Scotland’s commitment to Article 19 of the United Nations Convention on the Rights of the Child, the text of which is contained in Annex F.

Responding to this consultation

1.12 We are inviting responses to this consultation by 14 November 2018.

1.13 Please respond to this consultation using the Scottish Government’s consultation platform, Citizen Space. You can view and respond to this consultation online at: https://consult.gov.scot/child-protection/amendments-to-the-law-on-child-cruelty/ You can save and return to your responses while the consultation is still open. Please ensure that you submit your consultation response before 5pm on 14 November 2018.

1.14 If you are unable to respond online using Citizen Space, please submit your response by post. You must complete and return the Respondent Information Form at Annex A (see "Handling your Response" below) with your response. You can answer the Consultation Questions using Annex B Please Send your response and the completed Respondent Information Form to:

Handling your response

1.15 If you respond using the consultation hub, you will be directed to the About You page before submitting your response. Please indicate how you wish your response to be handled and, in particular, whether you are content for your response to published. If you ask for your response not to be published, we will regard it as confidential, and we will treat it accordingly.

1.16 All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.

1.17 If you are unable to respond via Citizen Space, please complete and return the Respondent Information Form included in this document.

1.18 To find out how we handle your personal data, please see our privacy policy: /privacy/

Next steps in the process

1.19 Where respondents have given permission for their response to be made public, and after we have checked that they contain no potentially defamatory or offensive materials, or where publication would be contrary to copyright or data protection laws (see annex C for further information on handling of personal data) we will make responses available to the public at http://consult.scotland.gov.uk. If you use Citizen Space to respond, you will receive a copy of your response by email.

1.20 Following the closing date, all responses will be analysed and considered along with any other available evidence to help us. Responses will be published where we have been given permission to do so.

1.21 Following this, the Scottish Government will publish a response, outlining the next steps and further work that will be necessary to progress the updating of section 12. We anticipate that this work will involve focused sessions with stakeholders to consider broader issues such as what support will be necessary for practitioners following any changes.

Comments and complaints

1.22 If you have any comments about how this consultation exercise has been conducted, please send them by email to section12consultation@gov.scot or by hard copy to the address at paragraph 1.18 above.

Scottish Government consultation process

1.23 Consultation is an essential part of the policy making process. It gives us the opportunity to consider your opinion and expertise on a proposed area of work. You can find Scottish Government consultations online: https://consult.gov.uk. Each consultation details the issues under consideration, as well as a way for you to give us your views, either online, by email or by post.

1.24 Responses will be analysed and used as part of the decision making process, along with a range of other available information and evidence. We will publish a report of this analysis for every consultation. Depending on the nature of the consultation exercise the responses received may:

• indicate the need for policy development or review
• inform the development of a particular policy
• help decisions to be made between alternative policy proposals
• be used to finalise legislation before it is implemented.

1.25 While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.