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).
