Schedule 3: Schedule to be substituted for schedule 2 of the PVG Act
194.This schedule provides for the substitution of the existing schedule 2 of the PVG Act to deal with the change from “regulated work with children” to “regulated roles with children”.
Part 1: Preliminary
195.Paragraph 1(1) defines what is meant by a regulated role with children. To be carrying out a regulated role, a person must be carrying out one or more activities listed in Part 2 of the schedule. The activities must be carried out as a necessary part of the role and take place in Scotland (or take place outside the UK, the Channel Islands and the Isle of Man and be carried out by an individual who is ordinarily resident in the UK for an organisation or a personnel supplier with a place of business in Scotland, whose functions in relation to the carrying out the activity by the individual are principally exercised at that place of business – see paragraph 1(4) of the schedule).
196.In addition, carrying out the activities must give the person the opportunity to have contact with children (but, the carrying out of activities in an education institution, hospital, nursery, day care premises, hospice, residential care setting or secure accommodation for children, must give the individual carrying them out the opportunity to have unsupervised contact with children).
197.“Contact with children” and “unsupervised contact with children” are defined by paragraph 3. Contact includes physical contact with children, written or verbal communication and exercising power or influence over children. Paragraph 3(4) provides the definition of “exercising power or influence” over children
198.The revised definition of “contact with children” marks an important change in the construct of who is brought into scope of the PVG Scheme. The prerequisite for regulated roles with children is not confined to the opportunity for unsupervised contact with children in relation to all the activities before a role becomes within scope of the PVG Scheme. The reason for this is that some roles allow individuals to exert power or influence over children to such a degree that even if contact occurs within the presence of a “responsible person” within the meaning of paragraph 3(1) of schedule 3 the role should still be one which requires membership of the Scheme. The only prerequisite for all the activities (but see paragraph 199 below) in schedule 3 is that the carrying out of the activities gives the individual carrying them out, when doing anything permitted or required in connection with the carrying out of the activities, the opportunity to have “contact with children” (which is then defined in paragraph 3(1) of schedule 3). For example, the football agent representing a child in regards to their future recruitment, training or employment with a football club possesses significant power or influence over the child. Even if the contact occurs within the presence of a parent or other responsible person in relation to the child, the Act ensures that individuals carrying out such a role would be brought into the PVG Scheme. The same would apply to the official working on behalf of the football club.
199.There are some activities that could give a person the opportunity to have unsupervised contact with children which is secondary to them carrying out those activities. Paragraph 21 of schedule 3 states that carrying out an activity in an education institution, hospital, nursery, day care premises, hospice, residential care setting or secure accommodation for children will be a regulated role. But this is qualified by paragraph 1(2)(b)(i) in Part 1 of the schedule so that the activities mentioned must give rise to the opportunity to have unsupervised contact with children. For example, the specific plumber identified in a building firm as the individual who always does work on school premises because they have specialist knowledge of the central heating systems would be regarded as having the opportunity to have unsupervised contact with children, even if actual callouts occur quite infrequently. The concept of unsupervised contact with children is unique to regulated roles with children.
200.A person with day-to-day supervision or management of an individual carrying out a regulated role is also to be treated as being in a regulated role. Training or studying in Scotland for the activities mentioned in Part 2 of the schedule will also amount to a regulated role with children (as will training or study for one of those activities that is undertaken outside the UK, the Channel Islands and the Isle of Man by an individual who is ordinarily resident in the UK for an organisation or a personnel supplier with a place of business in Scotland, whose functions in relation to the carrying out the activity by the individual are principally exercised at that place of business – see paragraph 1(5) of the schedule). For example, a person ordinarily resident in Glasgow going to Trinity College in Dublin to study medicine would not have to join the PVG Scheme. However, the provisions bring into scope any training provided overseas where a person is doing a placement or secondment with a non-Scottish organisation, but their training is still subject to overall supervision and sign-off by a training provider in Scotland. Therefore, a Scottish-domiciled medical student at University of Glasgow on exchange to Trinity College and working in a children’s hospital in Dublin would still need to be a scheme member for the period of the placement/exchange.
201.There are exceptions to regulated roles with children set out in paragraph 2 of the schedule. A person will not be carrying out a regulated role when the interaction with a child is a result of the child being in paid employment (see paragraph 2(1)(a) of the schedule). This means, for example, that a shop manager recruiting or supervising children aged 16 or 17 as assistants (whether paid or unpaid) is not within the scope of regulated roles with children and does not need to become a member of the PVG Scheme. There is also an exclusion for activities carried out in the course of a family or personal relationship (see paragraph 2(1)(b) and (c) of the schedule). These exclude, for example, a brother providing childcare services for his sister whether or not there is payment or a friend providing unpaid childcare services to another friend. The exclusions are the same as those provided by the definition of “work” in section 95(3) and (4) of the PVG Act (which are to be repealed as a result of the move from regulated work to regulated roles).
Part 2: Activities
202.Part 2 of the new schedule substituted by schedule 3 lists the activities that give rise to a regulated role with children for which PVG scheme membership will be mandatory under the Act.
203.Paragraph 4 covers all types of foster care, including private foster care arrangements. Section 96 of the PVG Act provides a definition of foster care for the purpose of the Act. This covers public fostering arranged by councils under section 26(1)(a) of the Children (Scotland) Act 1995 which would cover many foster care placements and also include the situation where a looked after child is placed by the council with a relative or friend, even though that individual is not a career foster carer. It would thereby include some kinship care scenarios. Those looking after a child in pursuance of a permanence order, and those looking after a child under a supervision requirement are covered too.
204.Paragraph 5 is relevant to care arrangements arranged by a local authority.
205.Paragraph 6 applies, for example, to scout leaders or safety and welfare officers at sports clubs.
206.Paragraph 7 covers social workers (including the Chief Social Worker Officer of a local authority), members of the Children’s Panel, Children’s Hearings Scotland or the Scottish Children’s Reporter Administration. Explicitly excluded are individuals carrying out such a role in the capacity of an “elected representative”, which paragraph 31 defines as (a) a member of the House of Commons or (b) a member of the Scottish Parliament. Accordingly, paragraph 7 does extend to councillors of local authorities who have the ability to directly influence decisions about the welfare or safety of a child, for example, due to holding a position on a committee concerned with the provision of children’s social services.
207.Paragraph 8 covers teaching, instructing or delivering training to children. This captures teaching of any subject, in an establishment such as a school or home-based tuition.
208.Paragraph 9 makes provision for education inspectors, the Chief Education Officer of a local authority, members of the governing body responsible for the management of a school or further education institution and the Registrar of Independent Schools in Scotland. Explicitly excluded are individuals carrying out such a role in the capacity of an “elected representative” which paragraph 31 defines as (a) a member of the House of Commons or (b) a member of the Scottish Parliament. Accordingly, paragraph 9 does extend to councillors of a local authority who have the ability to directly influence operational delivery of education services for children, for example, due to holding a position on a particular committee with an education remit.
209.Paragraph 10 captures those who act on behalf of children where a power imbalance exists, for instance football agents and talent scouts. This matter was considered by the Scottish Parliament’s Health and Sport Committee in their report Child Protection in Sport(10).
210.Paragraph 11 covers individuals engaged in the provision of advice or guidance in relation to career development or education, for example careers advisers.
211.Paragraph 12 makes provision to cover activities such as crèche workers where individuals will be in charge or caring for children.
212.Paragraphs 13 to 19 cover various health professionals who are actively practising and are not, for example, on a career break.
213.Paragraph 20 covers those providing domestic services (such as cleaning, food preparation, caretaking or maintenance roles) in establishments which are provided for children, such as schools, children’s hospitals, nurseries or outdoor activity centres for children.
214.Paragraph 21 is qualified by paragraph 1(2)(b)(i) in Part 1 of the schedule so that the activities mentioned in paragraph 21 must give rise to the opportunity to have unsupervised contact with children (see paragraph 3(1) of the schedule for the meaning of “unsupervised contact with children”).
215.Paragraph 22 covers the provision of a care home service or independent healthcare service as defined by the interpretation section at paragraph 31.
216.Paragraph 23 makes provision for self-employed individuals providing personal care services.
217.Paragraph 24 covers individuals providing counselling, therapy or advice or guidance in relation to health or wellbeing to children. This covers advice or guidance provided to a child on their physical or mental health or welfare. The activities mentioned in paragraph 24 capture individuals providing these services to children within shelters, hostels, refuges and other types of accommodation where they are offered support or guidance on their situation or experience. Excluded from scope however are individuals providing such services to a fellow prisoner in a young offenders institution for example. This exception will enable individuals who may be automatically barred from carrying out regulated roles with children due to the nature of their convictions to take part in peer to peer support services provided to other prisoners.
218.Paragraph 25 covers persons who have responsibility for the scrutiny or inspection, on behalf of a statutory body, of medical and healthcare services provided for children. Explicitly excluded are individuals carrying out such a role in the capacity of an “elected representative” which paragraph 31 defines as (a) a member of the House of Commons or (b) a member of the Scottish Parliament. Accordingly, paragraph 25 does extend to councillors of a local authority who have the ability to directly influence the operational delivery of medical or care services for children, for example, due to holding a position on a committee.
219.Paragraph 26 covers, for example, individuals providing entertainment or party services for children or photography services for children, or people running art classes or summer clubs for children.
220.Paragraph 27 covers individuals providing sports coaching or coaching of other physical activities to children.
221.Paragraph 28 covers individuals volunteering at Sunday school, youth church activities or chaplaincy services. This paragraph covers all denominations or religious beliefs.
222.Paragraph 29 makes provision for individuals engaging in the provision of transport services for children but is limited to those driving or escorting children, for example, on a school bus rather than a depot manager or individual arranging the scheduling for the transport service.
223.Paragraph 30 captures persons such as trustees of a children’s charity and the Commissioner for Children and Young People in Scotland.
224.Interpretation is provided for certain terms and expressions used in the substituted schedule by paragraph 31. Paragraph 32 gives Ministers a power (by regulations subject to the negative procedure) to amend the meaning of the expression “further education institution” but only for the purposes of this schedule.
Part 3: General
225.Paragraph 33 allows Ministers by regulations to modify the substituted schedule, by affirmative procedure. Paragraph 34 clarifies that Ministers’ power to make regulations under paragraph 33 can include provision to disapply or otherwise modify the application of the offence provisions at sections 34 to 37 and sections 45C to 45G of the PVG Act.
