Protection of Children (Scotland) Act 2003

SCHEDULE 1 Offences against a child

(introduced by section 10(9))

1 The offences referred to in sub-paragraph (i) of section 10(9)(a) above are—

(a) an offence under section 12 (cruelty to children under 16) of the Children and Young Persons (Scotland) Act 1937 (c. 37);

(b) an offence under section 15 (causing or allowing children under 16 to be used for begging or procuring alms) of that Act;

(c) an offence under section 22 (exposing a child under 7 to risk of burning) of that Act;

(d) an offence under section 33 (causing or allowing children under 17 to participate in performances which endanger life or limb) of that Act;

(e) an offence under section 2 (intercourse with a step-child) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39);

(f) an offence under section 3 (intercourse of person in position of trust with child under 16) of that Act;

(g) an offence under section 5 (intercourse with girl under 16) of that Act;

(h) an offence under section 6 (indecent behaviour towards girl between 12 and 16) of that Act;

(i) an offence under section 8 (abduction and unlawful detention of unmarried girl under 18) of that Act;

(j) an offence under section 9 (permitting girl under 16 to use premises for intercourse) of that Act;

(k) an offence under section 10 (causing or encouraging the seduction of, the prostitution of, unlawful intercourse with or the commission of an indecent assault on a girl under 16) of that Act;

(l) an offence under section 12 (allowing child who is 4 or over but under 16 to be in a brothel) of that Act;

(m) an offence under section 13(5)(c) (homosexual acts with a boy under 16) of that Act.

2 An individual falls within this paragraph if the individual—

(a) commits an offence under section 1 (incest) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) by having sexual intercourse with a child;

(b) commits an offence under section 7 (procuring unlawful intercourse etc.) of that Act in relation to a child;

(c) commits an offence under section 11 (trading in prostitution and brothel-keeping) of that Act in relation to a child;

(d) commits an offence under section 13(6) (procuring commission of homosexual act between males) by procuring, or attempting to procure, a child to commit a homosexual act.

(e) commits any other offence which caused, or was intended to cause, bodily injury to a child;

(f) commits any other offence by engaging in lewd, indecent or libidinous practice or behaviour towards a child.

SCHEDULE 2 Child care positions

(introduced by section 18(1))

1 For the purposes of this Act a “child care position” is a position—

(a) whose normal duties include work in an establishment mentioned in paragraph 2 below;

(b) whose normal duties include providing, or working for an organisation which provides, a care home service or an independent health care service which is provided exclusively or mainly for children;

(c) whose normal duties include work on day care premises;

(d) whose normal duties include caring for, training, supervising or being in sole charge of children;

(e) whose normal duties involve unsupervised contact with children under arrangements made by a responsible person;

(f) whose normal duties include caring for children under the age of 16 in the course of the children’s employment,

(g) a substantial part of whose normal duties include supervising or training children under the age of 16 in the course of the children’s employment;

(h) mentioned in paragraph 6 below; or

(i) whose normal duties include supervising or managing an individual in the individual’s work in any position mentioned in paragraphs (a) to (h) above.

2 The establishments referred to in paragraph 1(a) are—

(a) an institution which is exclusively or mainly for the detention of children;

(b) a hospital which is exclusively or mainly for the reception and treatment of children;

(c) an educational establishment; and

(d) a home which is exclusively or mainly for children and is provided by a local authority under section 59 (provision by local authorities of residential and other establishments) of the Social Work (Scotland) Act 1968 (c. 49) or section 7 (provision by local authorities of residential accommodation for persons with mental disorder) of the Mental Health (Scotland) Act 1984 (c. 36).

3 For the purposes of paragraph 1(c) above, work done on any premises is treated as not being done on day care premises to the extent that it is done—

(a) in a part of the premises in which children are not looked after; or

(b) at times when children are not looked after there.

4 The duties referred to in paragraph 1(d) and (e) above do not include (respectively)–

(a) caring for, training, supervising or being in sole charge of children in the course of the children’s employment, or

(b) duties involving contact with children in the course of the children’s employment.

5 The reference in paragraph 1(e) above to unsupervised contact is to contact in the absence of any responsible person or carer; and in this paragraph, “carer” means a person who holds a position such as is mentioned in paragraph 1(d) above.

6 The positions mentioned in paragraph 1(h) above are—

(a) manager of an educational establishment;

(b) member of a committee, including joint committee, of a local authority (or any sub-committee thereof) which is concerned with the provision of education, accommodation, social services or health care services to children;

(c) chief social work officer of a local authority;

(d) director of education of an education authority;

(e) charity trustee of a children’s charity;

(f) member of a children’s panel established by section 39(1) (formation of children’s panels) of the Children (Scotland) Act 1995 (c. 36);

(g) member of a Children’s Panel Advisory Committee (including a member of a sub-committee of such committee); and

(h) member of a joint advisory committee established under paragraph 8(1) (arrangements for Children’s Panel Advisory Committee to be formed for more than one local authority area) of Schedule 1 to that Act of 1995 (including a member of a sub-committee of such committee).

7 For the purposes of paragraph 6(e) above a charity is a children’s charity if—

(a) the individuals who are workers for the charity normally include individuals working in child care positions; or

(b) the main purpose of the charity is to provide benefits for children.

8 For the purposes of paragraph 7 above, an individual is a worker for a charity if the individual does work under arrangements made by the charity.

9 The arrangements referred to in paragraph 8 above do not include any arrangements made for purposes which are merely incidental to the purposes for which the charity is established.

10 For the purposes of paragraph 1(i) above, the holder of a position—

(a) only supervises an individual if the holder of the position supervises the day-to-day performance of the individual’s duties; and

(b) only manages an individual if—

(i) the individual is directly responsible to the holder of the position for the performance of the individual’s duties; or

(ii) the holder of the position has authority to dismiss the individual.

11 For the purposes of this schedule, the following are responsible persons in relation to a child—

(a) the child’s parent or guardian and any person aged 18 or over with whom the child lives;

(b) the person in charge of any establishment mentioned in paragraph 2 above in which the child is accommodated, is a patient or receives education (and any person acting on behalf of such a person);

(c) a person who provides a service which is registered under Part 1 of the 2001 Act and which consists of providing day care of children; and

(d) any person holding a position mentioned in paragraph 6 above; and

(e) any person holding a position in a body which is a children’s charity.

12 In this schedule—

• “care home service” has the same meaning as in the 2001 Act;

• “charity” means any body which is entitled, by virtue of section 1(7) (bodies entitled to be described as a Scottish charity) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), to describe itself as “a Scottish charity”;

• “charity trustee” means any person concerned in the management or control of a charity;

• “day care of children” has the meaning given by section 2(20) (care services) of the 2001 Act;

• “day care premises” means premises at which a person provides a service registered under Part 1 of the 2001 Act which consists of day care of children;

• “detention” means detention by virtue of an order of a court or under an enactment;

• “educational establishment” and “managers of an educational establishment” have the same meaning as in the Education (Scotland) Act 1980 (c. 44);

• “employment” means paid employment, whether under a contract of service or apprenticeship or under a contract for services;

• “hospital” has the meaning given by section 108(1) (interpretation) of the National Health Service (Scotland) Act 1978 (c. 29); and

• “independent health care service” has the same meaning as in the 2001 Act.

13 The Scottish Ministers may, for the purpose of amending the definition of “child care position”, by order make any amendment of this schedule (apart from this paragraph) which they think appropriate.