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Human Trafficking and Exploitation (Scotland) Act 2015

Support and assistance for child victims

Section 11: Independent child trafficking guardians

53.Section 11(1) places a duty on the Scottish Ministers to make such arrangements as they consider reasonable which enable a person to be appointed to assist, support and represent any child to whom the section applies. This appointed person is to be known as an independent child trafficking guardian.

54.Subsection (2) makes it clear that this provision applies to any child who is unaccompanied (in the sense that no person in the UK holds parental rights or responsibilities in relation to the child) and where it appears (based on reasonable grounds of belief) that the child is, or may be a victim of the offence of human trafficking; or that they are vulnerable to becoming a victim of that offence.

55.Subsection (3) provides that any “relevant authority” (as defined in subsection (8)) which determines that a child falls within the eligibility criteria set out in subsection (2), should take steps to bring the child to the attention of the guardian service as soon as reasonably practicable after making that determination. Subsection (4) then provides that the arrangements made by Ministers must provide for an independent child trafficking guardian to be appointed as soon as reasonably practicable after receiving such a referral. The arrangements must also ensure that the appointed guardian is independent of any other person exercising statutory functions in relation to the child.

56.Subsection (5) provides that an appointed guardian must, at all times, act in the best interests of the child. Subsection (6) provides that any person who is exercising other statutory functions in relation to the child must recognise, and pay due regard to, the guardian’s functions; and provide the guardian with access to information which will allow the guardian to exercise those functions effectively.

57.Subsection (7) gives the Scottish Ministers power to make further provision about independent child trafficking guardians via regulations. This includes power to make further provision about the appointment of independent child trafficking guardians (including the termination or, in certain circumstances, continuation of that appointment), the conditions which require to be satisfied before a person may be eligible to be appointed as a guardian, the functions of such guardians, and other administrative matters such a payment and record keeping.

58.Subsection (8) provides definitions of a “person with parental rights or responsibilities” and “relevant authority”, as mentioned in subsections (2) and (3) respectively. A “relevant authority” for this purpose is a local authority and any other person specified in regulations made by the Scottish Ministers.

Section 12:  Presumption of age

59.Section 12 requires a relevant authority which is unsure as to the age of a person whom it has reasonable grounds to believe to be a victim of an offence of human trafficking to assume that person is a child where it has reasonable grounds to believe that is the case (subsection (1)). That assumption is to be made for the purposes of a number of statutory functions specified in subsection (3). The assumption is to continue to be made either until a local authority carries out an assessment of the potential victim’s age or that person’s age is determined by some other means (subsection (2)). Subsection (4) specifies that the relevant authorities to whom this duty applies are local authorities and health boards. Subsection (5) gives the Scottish Ministers the power to modify both the list of statutory functions and the relevant authorities to which the duty to make the assumption applies by regulations

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Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.


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