Sexual Offences (Scotland) Act 2009

43 Positions of trust

(1) For the purposes of section 42, a person (“A”) is in a position of trust in relation to another person (“B”) if any of the five conditions set out below is fulfilled.

(2) The first condition is that B is detained by virtue of an order of court or under an enactment in an institution and A looks after persons under 18 in that institution.

(3) The second condition is that B is resident in a home or other place in which accommodation is provided by a local authority under section 26(1) of the Children (Scotland) Act 1995 (c. 36) and A looks after persons under 18 in that place.

(4) The third condition is that B is accommodated and cared for in—

(a) a hospital,

(b) accommodation provided by an independent health care service,

(c) accommodation provided by a care home service,

(d) a residential establishment, or

(e) accommodation provided by a school care accommodation service or a secure accommodation service,

and A looks after persons under 18 in that place.

(5) The fourth condition is that B is receiving education at—

(a) a school and A looks after persons under 18 in that school, or

(b) a further or higher education institution and A looks after B in that institution.

(6) The fifth condition is that A—

(a) has any parental responsibilities or parental rights in respect of B,

(b) fulfils any such responsibilities or exercises any such rights under arrangement with a person who has such responsibilities or rights,

(c) had any such responsibilities or rights but no longer has such responsibilities or rights, or

(d) treats B as a child of A’s family,

and B is a member of the same household as A.

(7) A looks after a person for the purposes of this section if A regularly cares for, teaches, trains, supervises, or is in sole charge of the person.

(8) The Scottish Ministers may by order modify this section (other than this subsection) and section 44 so as to add, delete or amend a condition.