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Introduction

Children and young people, and their family life is the focus of a range of legislation to protect children, to ensure their rights are respected, and to describe the rights of parents. The work of practitioners in education is also guided by a framework of duties and powers.

This guide provides a snapshot of key issues from legislation and guidance concerned with keeping children safe and well. It informs teachers, head teachers, schools and local authorities of issues they may need to consider when planning and working with children.

Each section describes legislation, or groups together various pieces of legislation which refer to similar areas of practice. However, it is an introduction only. Practitioners often work on complex issues on which more detailed advice should be sought from legal advisors in education authorities.

It may be helpful for all school staff to understand the basic legal framework in which they work, and for children and young people and their parents to have access to simple information on their own rights and responsibilities.

Legislation

Section 1

The Children (Scotland) Act 1995

Relevant areas

1. The Safeguarding and Welfare of Children
2. Child Abuse
3. Confidentiality
4. Referrals to the Reporter - see grounds of referral to the Children's Reporter to the Children's Panel at Section 2.

What is required for schools and authorities

• Safeguarding and Welfare of Children
• A legal duty to safeguard and promote the welfare of a child in need in their area.
• Parental responsibilities allocated by a court order last until the child is 18.
• Young people aged between 16 and 18 who are subject to a Children's Hearing supervision requirement are considered 'children'.
• Boarding schools and residential facilities within day schools have a welfare duty for young people aged between 16 and 18 in their charge or care.
• Children and young people have a right to express their views in all decisions affecting them (see also section 10 Age of Legal Capacity Act; Section 15, United Nations Convention of the Rights of the Child).
• A child's religious persuasion, racial origin and cultural and linguistic background should inform the assessment and planning to meet the child's needs (see also Section 9, the Race Relations (Amendment) Act).
• Child Abuse
• For the purposes of child protection, a 'child' may be a child or young person up to the age of 18 if there is a supervision requirement or referral already in force.
• The child's welfare and protection receive priority concerning issues of child abuse.
• In most cases, parents/carers should be informed of concerns and take part in discussions regarding the child's needs/actions taken, (but this should be carefully considered, see Safe and Well A-Z, Parents).
• Confidentiality
• Children and young people have a right of confidentiality. A breach of confidence is permissible only where this would be in the public interest - which can include child protection.
• Education authorities need to keep staff, parents and children aware of its policy on confidentiality.
• Local authorities should develop protocols through child protection committees which make clear to staff the circumstances in which they and other agencies:-
• will share information; and
• deal with the limitations to information sharing.
• Independent and grant-aided schools should have agreed written protocols for dealing with such matters (see also Section 7, Data Protection).

What is required for staff

• Safeguarding and Welfare of Children
• Staff should be aware of their legal duty to safeguard and promote the welfare of children.
• Where it is appropriate, staff should be aware of any particular support needs arising from being looked after, the subject of a supervision requirement or child protection procedures.
• Staff should understand protocols for information sharing and confidentiality.
• Child Abuse
• Staff working with children at risk should help the child to express his or her views and take such views into account when deciding what to do next.

Section 2

1. Inter-agency Code of Practice and National Standards Second Edition 2001 (Referrals to the Children's Reporter from Education)

2. The Criminal Procedure (Scotland) Act 1995 (The Criminal Law (Consolidation) (Scotland) Act 1995; Sexual Offences Scotland Act 1976; The Misuse of Drugs Act 1971)

Relevant areas

Grounds for referral to the Reporter to the Children's Panel.

What is required for schools and authorities

• Individuals and agencies have a responsibility to refer to agencies charged with investigating child abuse where they suspect a child is at risk of significant harm.
• If a local authority believes compulsory measures of care are necessary, the matter must be referred to the Reporter. Sufficient information should be provided to enable the Reporter to assess the situation.
• Staff should refer children who, in their opinion, may be in need of compulsory measures of supervision.
• Staff should gather as much information and include this in a log. The information in the log should be treated as confidential. (See Safe and Well A-Z, Children's Hearings.)
• Referrals should be made as and when the need arises.
• The Reporter should be engaged at an early stage of the process.

A child may be in need of compulsory measures of care if, the child:

• Children (Scotland) Act 1995:

i) is beyond the control of parents/carers;
ii) is 'falling into bad associations' or 'exposed to moral danger';
iii) is suffering or likely to have impaired health or development due to lack of parental care;
iv) has failed to attend school regularly without reasonable excuse;
v) has committed an offence;
vi) has misused a volatile substance;
vii) is looked after by the local authority.

A child may also be referred if he or she is felt to be at risk because another child in the household has suffered abuse or an adult in the household is known to have committed offences against children.

What is required for staff

• Where staff have reasonable cause to suspect or believe that a child is at risk of significant harm they have a responsibility to refer to the agencies charged with investigating child abuse.
• Staff should be aware of their establishment's guidance on referrals.
• Advice should be sought from the designated Child Protection
  Co-ordinator, Head Teacher or person designated as a point of reference in the local inter-agency guidelines.

Further info

www.scra.gov.uk

Key contacts

Scottish Children's Reporter Association

Section 3

Protection of Children (Scotland) Act 2003

What it concerns

Ministerial powers to establish and maintain a list of persons unsuitable to work with children.

What is required for schools, authorities, staff

• Organisations have a duty to refer an individual to the list when the individual has:
• harmed a child; or
• put a child at risk of harm; and
• been dismissed or moved away from access to children as a result of the above consequences; and
• who would have been dismissed, but who has resigned, retired or was made redundant before the dismissal process was completed or left at the end of a temporary contract.
• There is a duty to refer cases where the decision to dismiss is taken after 10 January 2005 and failure to comply with this duty is an offence. NB: Organisations may make referrals for cases which were concluded prior to that date, but do not have a duty to do so.
• With effect from 11 April 2005 there will be a need for Disclosure checks to be done for all new staff to ensure an individual who is fully listed is not appointed in a child care position (see also Section 6, Disclosures.)
• It will be an offence for an organisation to knowingly employ a person to work with children if that person is fully listed.
• Organisations will have a duty to remove an individual who is fully listed from a child care position.
• Individuals who are provisionally listed are not disqualified from working in child care positions.
• Organisations should have in place procedures to ensure:
• disclosure checks are obtained; and
• that they are well placed to fulfil their duty to make referrals to Scottish Ministers.
• A referral to the list should be made in a written report to Scottish Ministers.
• The organisation or individual making the referral is not required to send a copy of the reference to the individual who is the subject of the reference - this responsibility lies with Scottish Ministers.

Further info

Protecting Children - A Shared Responsibility - Guidance on Inter-Agency Co-operation, Scottish Office 1998 www.scotland.gov.uk

Key contacts

Karen Furey, Scottish Executive on DWCL@scotland.gsi.gov.uk
Tel: 0131-244 5486.

Section 4

The Protection of Children and Prevention of Sexual Offences (Scotland) Bill (introduced in 2004)

NB: The above Bill will become law on commencement, which is expected to occur in Autumn 2005.

What it concerns

The Protection of Children and Prevention of Sexual Offences (Scotland) Bill will create a new offence to deal with predatory sex offenders who seek to win the confidence of children by 'grooming' with the aim of later abusing them. This will allow the police to step in before a sex offender has even met his intended victim.

If a member of staff suspects that a child or young person is preparing to meet an unknown correspondent that they have 'met' in a chatroom, the child's parents should be contacted to alert them to the risks of children meeting unknown correspondents unaccompanied (see also Safe and Well A-Z, Computer Safety).

Further info

www.scottish.parliament.uk/business/bills/billsInProgress/children.htm

Section 5

Education (Scotland) Act 1980 as amended by the Standards in Scotland's Schools, etc. Act 2000

Relevant areas

Duty of care and welfare and medical examination.

What is required for schools, authorities, staff

• An education authority may require a child's parents to allow their child to undergo a medical or dental examination, which may be necessary when it considers a child has suffered neglect by his or her parents. However, a child of legal capacity may refuse an examination (see also Section 10, Age of Legal Capacity Act).
• Medical or dental examination should be done in accordance with arrangements by the appropriate health board and should be agreed by the education authority.
• Health or counselling services provided by the authority should also keep staff, children and parents aware of their policy on confidentiality (see also Section 7, Data Protection).

Section 6

1. Disclosure Scotland: Code of Practice for Registered Persons and Other Recipients of Disclosure Information
2. Rehabilitation of Offenders Act 1974
3. Rehabilitation of Offenders Act 1974 Exclusions and Exceptions (Scotland) Order 2003

What it concerns

Recruitment and appointment decisions in relation to:

• paid or unpaid child care positions;
• compliance with the Code of Practice; and
• ex-offenders.

What is required for schools, authorities, staff

Disclosure Scotland: Code of Practice

• Authorities, schools or an individual within the organisation need to be registered with the Disclosure Bureau before applying for a disclosure check.
• Once registered the organisation, body or person needs to sign up to a Code of Practice used to govern the use of information provided by the disclosure process.
• All registered persons, bodies and others who receive standard or enhanced disclosure information are covered by the Code of Practice.
• Be aware of any guidance issued by Disclosure Scotland on the use of information and individuals' rights on sensitive and personal information. Ensure that such information is:-
• used properly and fairly;
• handled and stored appropriately; and
• kept for as long as necessary and disposed of securely.
• Individuals can query the accuracy of the disclosure information through an appeals procedure.
• It is an offence for an organisation to offer work (paid or unpaid) in a child care position to anyone who is disqualified from working with children and young people.
• A child care position is one whose normal duties include:
• working in an educational establishment;
• caring for, training, supervising or being in sole charge of children;
• unsupervised contact with children - where such arrangements have been made by a responsible person;
• managing an educational establishment; and
• being a director of education.
• Disclosure information should be sought after a candidate has been given a provisional offer of employment or a voluntary position. This should apply:
• when someone new to the organisation is offered work in a child care position; or
• when someone already in the organisation is moved into a child care position for the first time.
• The disclosure checks should be standard or enhanced for anyone working in a child care position.
• The establishment, body or person offering the position will decide the appropriate disclosure level.
• Disclosure checks at standard and enhanced levels give details of all convictions on record relating to an individual, whether spent or unspent and any cautions in England and Wales.
• Enhanced disclosure checks will also show any information from local police records considered by the Chief Constable to be relevant to the position being sought. The Chief Constable may also disclose information to the registered body only and not to the individual. This information does not form part of the disclosure certificate and is sent separately to the registered body.
• Disclosure information should be seen as complementary to an organisation's current recruitment practices such as:
• interviews;
• full investigation of an applicant's employment history;
• take-up of references; and
• supervision throughout any probationary period where practical.
• All information disclosed by Disclosure Scotland is sensitive and personal and data should be handled responsibly (see Safe and Well A-Z, Disclosure checking).

Rehabilitation of Offenders Act 1974

• Ex-offenders normally have the right not to reveal old or spent convictions. Certain posts are, however, exempt from the 1974 Act.
• The Rehabilitation of Offenders Act 1974 Exclusions and Exceptions (Scotland) Order 2003 (see below) provides details on organisations' rights in this regard.

Rehabilitation of Offenders Act 1974 Exclusions and Exceptions (Scotland Order 2003)

• Organisations have the right to ask individuals to declare all criminal convictions, both spent and unspent, if the post involves giving the individual prolonged or sustained access to children.

Further info

Disclosure Scotland: www.disclosurescotland.co.uk

Key contacts

Further info on registration and on the Disclosure process contact:
The Scottish Criminal Records Office, 1 Pacific Quay, Glasgow, G51 1EA.
Tel: 0141 585 8495, 0141 585 8344, e-mail info@partv.globalnet.co.uk

Section 7

Data Protection Act 1998

Relevant areas

Information Sharing - rights and obligations

What is required for schools, authorities, staff

• Establish a written policy and/or protocols on the secure handling, holding and destroying of disclosure information (see Safe and Well A-Z, Disclosure Checking).
• Staff should receive sufficient information on children's circumstances and needs to enable them to support and teach children appropriately (Better Behaviour - Better Learning Report 2001)
• Policies/protocols must make clear to all staff the circumstances when they and other agencies will share information and should consider the data protection principles that state data must be:
• fairly and lawfully processed - this includes if the processing is necessary in order to protect children's safety and wellbeing;
• collected and used only for specified purposes;
• adequate, relevant and not excessive;
• accurate and kept up to date where necessary;
• not kept longer than necessary;
• processed in accordance with the rights of those people whose data is held and processed;
• secure;
• not transferred to countries outwith the EC unless that country has adequate levels of protection for the individual; and
• appropriate organisational measures will be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
• Legal responsibility for compliance with the Data Protection Act lies with the data controller who is to ensure that the organisation's management of data complies with the data protection principles.
• The data controller must notify the Data Protection Commissioner and arrange to be registered, giving a general description of the organisational measures to be taken to ensure safe, lawful processing of data.

Further info

Data Protection Act 1998: A Guide to Data Protection Auditing.
The Data Protection Act 1998: Legal Guidance.
www.informationcommissioner.gov.uk

Key contacts

Information Commissioner's Office, 28 Thistle Street, Edinburgh, EH2 1EN.
Tel: 0131-225 6341, e-mail Scotland@ico.gsi.gov.uk

Section 8

Criminal Justice (Scotland) Act 2003

Relevant areas

Use of physical punishment on children.

What is required for schools and authorities

Ensure staff know that forms of physical punishment are illegal. Corporal punishment in schools was abolished in the Standards in Scotland's Schools Act 2000.

What is required for staff

• Staff may become aware that parental punishment is of a physical nature. Staff should discuss their concerns with the Child Protection Co-ordinator.
• There are many different cultural attitudes towards punishment of children, in Scotland and for families from other countries. School staff can help by raising awareness of this Act and, supporting families who may be new to Scotland or the UK, by informing them of expectations of parents and the law in Scotland.
• Parents should not:
• deliver blows to a child's head;
• shake a child; and
• use an implement on a child.

Section 9

Race Relations (Amendment) Act 2000

What it concerns

Tackling racial discrimination, promoting equality of opportunity and good race relations.

What is required for schools, authorities, staff

general duty

• Schools and education authorities need to understand and respond to the effects of:
• racial harassment;
• racial discrimination;
• institutional racism; and
• cultural misunderstanding or misinterpretation.
• Schools and education authorities should promote equality of opportunity and good relations between persons of different race groups.

specific duties for Education Authorities

• Have in place a written statement of its race equality policy.
• Maintain a copy of the statement.
• Ensure schools under its management maintain such a copy.
• Ensure that schools comply with the duties within the written statement.
• Assess the impact of its policies on pupils, staff and parents of different racial groups - especially the impact on attainment levels of such pupils.
• Managers of grant-aided schools are also required to comply with the above duties.

specific duties for schools

• Monitor and assess the impact of a school's policies - including its race equality policy - on pupils, staff and parents of different racial groups.
• In particular a school should assess whether its policies have, or could have, an adverse impact on the attainment levels of pupils from different racial groups.
• Publish the results annually - where this is reasonable and practicable.
• The race equality policy should be a written statement of responsibilities and commitments.

NB: Independent schools are not required to comply with the duty, although the Commission for Racial Equality strongly encourages them to do so since this will help them establish and maintain equality good practice. The Race Relations Act does require independent schools not to discriminate on racial grounds regarding: admissions, access to benefits or services, exclusions and in the employment of staff.

Key contacts

The Commission for Racial Equality, CRE Scotland, The Tun, 12 Jackson's Entry, off Holyrood Road, Edinburgh EH8 8PJ.
tel 0131-524 2000,
e-mail scotland@cre.gov.uk and
www.cre.gov.uk/duty/scotland/duty-scotland.html

Section 10

Age of Legal Capacity (Scotland) Act 1991

What it concerns

Children and young people considered to have the legal capacity to give or refuse consent to medical or dental treatment, or other procedures.

What is required for schools, authorities, staff

• The Education Authority should ensure that if a child is of an appropriate age and understanding he or she is aware of his or her rights under the 1991 Act with regard to giving consent to any surgical, medical or dental treatment, or other procedures.
• A qualified medical practitioner attending the child will establish if a child is deemed to have the appropriate mental capacity to give consent.

Section 11

1. Education (Disability Strategies and Pupils' Education Records) (Scotland) Act 2002

2. Guidance on Preparing Accessibility Strategies

3. Disability Discrimination Act 1995 as amended by the Special Educational Needs and Disability Act 2001

4. Code of Practice for Schools from the Disability Rights Commission ( DRC)

5. The Children (Scotland) Act 1995

Relevant areas

1. Improving access for pupils with disabilities to all aspects of school life.

2. Meeting the requirements of the Education (Disability Strategies etc…) Act 2002 regarding accessibility strategies.

3. Duties on education authorities and schools which make it unlawful to discriminate against disabled pupils.

4. Avoidance of unlawful discrimination against disabled pupils and prospective pupils in the school stages of education.

5. A duty on local authorities regarding a provision of assistance to disabled persons.

NB: Education providers and responsible bodies should be aware that children and young people may be defined as disabled under other legislation and may be receiving services under that legislation in addition to any other provisions made under the Disability Discrimination Act 1995.

What is required for schools and authorities

Education (Disability Strategies and Pupils' Education Records) (and Guidance on Preparing Accessibility Strategies)

• Local authorities (and independent and grant-aided schools) must prepare, and implement, accessibility strategies to improve access to education for pupils and prospective pupils with disabilities over time and to meet the duties under the amended Disability Discrimination Act 1995.
• Local authorities must have regard to the Guidance on Preparing Accessibility Strategies as regards the statutory elements on:
• the content of their accessibility strategies;
• the form in which the accessibility strategies are produced;
• whom local authorities should consult with in the preparation of their accessibility strategies; and
• the duty on local authorities to review and revise their strategies.
• Local authorities should involve schools in preparing accessibility strategies, but need not prepare one at school level. However, school development plans should reflect the strategy.
• Accessibility strategies must at least cover the following aspects of education for pupils with disabilities:
• increase participation in the curriculum;
• improve physical access of schools to make them more accessible; and
• improve access to information normally provided to pupils in writing.
• Accessibility strategies should also be forward looking.
• Finalised accessibility strategies should be publicised and interested groups should be made aware of how it will affect them. A summary should be provided to all those who may have an interest.
• School staff especially should be aware of how the strategy will impact upon them and should make staff, pupils and parents aware of this.

Disability Discrimination Act 1995 as amended by the Special Educational Needs and Disability Act 2001 (and the Disability Rights Commission Code of Practice for Schools)

• Education authorities and schools (including early years' providers and independent schools) have duties to ensure they do not discriminate against disabled pupils by treating them less favourably.
• Education authorities and schools must take reasonable steps to avoid putting disabled pupils at a substantial disadvantage in any aspect of school life.
• Disabled pupils (and disabled children who are prospective pupils) should have the same opportunities as non-disabled pupils in their access to education.
• The Code of Practice requires that education authorities and schools do not discriminate in relation to admissions; exclusions (including temporary and removal from the register); and education and associated services (which covers all aspects of school life).

Children (Scotland) Act 1995

• Local authorities shall, when requested by a child's parent or guardian, carry out an assessment of the child to determine his/her needs arising from the child's disability.

Further info

ENQUIRE website www.childreninscotland.org.uk/enquire.htm
Disability Rights Commission website www.drc-gb.org
Guidance "Matters to be taken into account in determining questions relating to the definition of disability" available from The Stationery Office
www.drc.org.uk/uploaded_files/documents/2008_229_guidance.doc

Key contacts

ENQUIRE - the National Advice Service for Special Educational Needs in Scotland, contact: Children in Scotland, Princes House, 5 Shandwick Place, Edinburgh, EH2 4RG,
Helpline: 0131-222 2400,
typetalk: 0800 959 598.
textphone: 0131-222 2439
e-mail Enquire.SENinfo@childreninscotland.org.uk

Disability Rights Commission, contact: DRC Helpline, FREEPOST,
Mid 02164, Stratford upon Avon, DV37 9BR,
tel: 08457 622 633
e-mail enquiry@drc-gb.org

Section 12

The Education (Additional Support for Learning) (Scotland) Act 2004 (The Additional Support for Learning Act Code of Practice)

What it concerns

Identifies and addresses the needs of all children and young people who face a barrier to learning and require additional support and compliance with the Code of Practice.

NB: The above Act will become law in late Autumn 2005. It is expected that the Code of Practice will be available in schools and authorities in Summer 2005.

What is required for schools and authorities

• Authorities must make adequate and efficient provision for each child or young person with additional support needs for whose education they are responsible.
• Put in place arrangements:
• to identify additional support needs and consider if a child requires a co-ordinated support plan ( CSP).
• to publish their policy for this and explain the rights and roles of children and parents; identify where information can be found .
• Meet requests from parents and act on referrals (unless unreasonable) to identify a child's additional support needs and establish if a CSP is required.
• Inform parents when preparing or reviewing a CSP and of the outcome; inform them of their appeal rights; and provide them with a copy of the CSP.
• Seek and take account of information and views from other agencies; the child and his/her parents.
• Provide independent mediation and dispute resolution services for all parents of children with additional support needs and publish information on these services.
• Review each CSP at least every 12 months or earlier if there has been a significant change in the child's circumstances or if parents (reasonably) request this.
• At least one year before the school leaving date, request and take account of information and advice from agencies likely to support the child or young person when s/he leaves school, to help prepare for transition; and with the young person's permission, six months before leaving school, provide information to whichever agencies will be responsible for supporting the pupil once s/he leaves school, including FE colleges.
• In order to facilitate the transition of a pupil leaving school there is a duty to take the information/advice from agencies into account when considering the adequacy of the additional support provided up to the actual leaving date.
• Schools have to pass information to social work, and other relevant agencies, about the pupil's additional support needs - this may inform the assessment process.
• Schools should also inform the social work department, and other relevant agencies of the pupil's anticipated leaving date and actual leaving date.
• The social work assessment should indicate what provision is to be made after school and the education authority should then tailor the education support provided in the last (at least) 12 months of school - to facilitate the transition.
• Other transitions between schools should be supported by efficient exchange of information.
• Ensure that the provision made for those with a Record of Needs is not reduced before consideration for a CSP has taken place for two years - unless there is a significant change in the pupil's circumstances.
• Other agencies (eg any other local authority, Health Board, Social Work Services etc) have duties to help each education authority discharge its duties under this Act unless it would prevent them from fulfilling their own statutory duties.
• Education authorities will have power to help children or young people with additional support needs who are not in the public education system.
• The Act requires an education authority to provide additional support to certain disabled children in their area who are under 3 years old, where they have been brought to the attention of the education authority by an NHS Board.
• Additional Support Needs Tribunals will receive references ¹ from young people
• or parents on matters related to the CSP.

Further info

• Act available on: www.scotland-legislation.hmso.gov.uk/legislation/scotland/acts2004/20040004.htm
• For Information on the implementation of the Act: www.scotland.gov.uk/Topics/Education/School-Education/19094/17176
• The Additional Support Needs Tribunals for Scotland:- www.asntscotland.gov.uk/

Key contacts

ENQUIRE - the National Advice Service for Special Educational Needs in Scotland, contact: Children in Scotland, Princes House, 5 Shandwick Place, Edinburgh, EH2 4RG.
Tel: 0845 123 2303
e-mail Enquire.SENinfo@childreninscotland.org.uk

1 A reference is information provided to the Tribunal in respect of a disputed decision, failure or information by the education authority responsible for the school education of the child.

2 A young person in this context is between 16-18 years of age and should still be receiving a school education.

Section 13

1. The Health and Safety at Work Act 1974
2. The Occupiers' Liability (Scotland ) Act 1960
3. The Schools (Safety and Supervision of Pupils) Scotland Regulations 1990

What it concerns

1. Health and safety policies and duties.

2. Duty of care to lawful visitors on premises.

3. Safety and supervision of pupils.

What is required for schools, authorities, staff

Health and Safety at Work Act 1974

• Local authorities (or owners, governors or trustees in independent schools) are under a duty to ensure - as far as is reasonably practicable - the health and safety of pupils.
• Employers are required to undertake risk assessments and produce a health and safety policy.
• The risk assessment should:
• set out any risks to pupils, staff and other users of services;
• state what measures will be taken to reduce such risks;
• such measures may include:
• procedures for lifting pupils and equipment;
• guidance on visits to pupils in their homes;
• appropriate training and guidance for staff;
• provision of personal or intimate care;
• safe practices in first-aid;
• keeping passageways and access / exit areas clear and hazard free; and
• procedures that monitor that health and safety practices are operating properly.

Occupiers' Liability (Scotland ) Act 1960

• Responsible bodies have responsibility for the maintenance or repair of their premises.
• Responsible bodies must take reasonable care to ensure pupils, staff and other people on its premises do not suffer injury.

Schools (Safety and Supervision of Pupils) Scotland Regulations 1990

• Education authorities have a duty to take reasonable care for the safety of pupils under their charge.
• Education authorities should ensure that each school under their management which is:
• a primary school having 50 or more pupils in attendance; or
• a special school;
• is supervised by at least one adult when in a playground (or outdoor area provided by the authority for recreation or play at break times) during any break time.

Further info

The Good Practice Guide - Health & Safety on Educational Excursions and its supplements:
Standards for Local Authorities in Overseeing Educational Excursions,
Standards for Adventure, and
A Handbook for Group Leaders
can be printed and downloaded from www.scotland.gov.uk and www.parentzonescotland.gov.uk .

Copies of the above are available on request from the Scottish Executive Education Department, Schools Division, Victoria Quay, Edinburgh,
EH6 6QQ, tel: 0131-244 0943.

The Protection of Young People in the Context of International Visits 2002 http://www.scotland.gov.uk/library5/education/pcsr-08.asp

Section 14

The Mental Health (Scotland) Act 1984

The Mental Health (Care and Treatment) (Scotland) Act 2003

NB:

• The 1984 Act is due to be replaced by the 2003 Act. The 2003 Act was passed in 2003 and will become law on commencement, which is expected to occur in Autumn 2005.
• A Code of Practice is expected to be published in Summer 2005.

What it concerns

Range of provisions regarding the mental health of young people.

What is required for schools and authorities

Mental Health (Scotland) Act 1984

• Co-operate with health boards and voluntary organisations concerned with people suffering mental ill-health, to provide after-care.
• Local authorities should support any looked after children in hospital, because of mental illness, by visiting them as a parent would.
• Provide education and training opportunities for pupils if they suffer from mental illness and secure suitable provision (training or work) for those over school age.

Mental Health (Care and Treatment) (Scotland) Act 2003

The Act applies to people with mental illness, personality disorders and learning disabilities.

• 'Service users' and carers have the right to request an assessment of the service user's needs from a Health Board or local authority.
• Local authorities have a duty to provide care and support services, and to provide services designed to promote the wellbeing and social development of people who have had a mental disorder.

The Act also refers to powers which enable health services (or the police) to detain people who present a danger to themselves or others or to treat people who are unable, because of their illness, to consent to treatment. Schools will rarely find the need for emergency intervention because of a sudden deterioration in mental health. If this occurred, then emergency medical services should be sought. However, this Act does give the police the power to take a person from a public place to a place of safety in order for an assessment to be made; and gives powers for people with a mental disorder to be detained while their condition is assessed by medical/psychiatric practitioners.

Further info

An Introduction to The Mental Health (Care and Treatment) (Scotland) Act 2003 booklet
http://www.scotland.gov.uk/library5/health/mhsa-00.asp

The New Mental Health Act - What's it all about? A short introduction booklet
http://www.scotland.gov.uk/library5/health/nmha-00.asp

International Conventions

Section 15

The United Nations Convention on the Rights of the Child ( UNCRC)
(See also The European Convention on Human Rights, Section 17.)

What it concerns

The UNCRC is an international agreement between states to ensure countries adopt a standard of policy and law that is in the best interests of children. The UK (including Scotland) is a signatory to the UNCRC and reports to a UN Committee on progress every five years. The 54 articles of the UNCRC are not legally binding on the UK. It is the Scottish Executive's policy to reflect, wherever possible, the articles in the Convention when taking forward policy and introducing legislation.

Relevant articles of the Convention for schools keeping children safe and well include:

• Article 3 - all actions concerning children must be made by consideration of the child's best interests. The state must ensure children are protected and cared for, taking into account the rights and duties of parents. Services responsible for the care and protection of children must be of a good standard and have sufficient and suitable staff.
• Article 5 - respect the rights, responsibilities and duties of parents/carers to direct and guide a child (see also Section 17, ECHR).
• Article 9 - parents and children should stay together unless it is clear this is not in the child's best interests.
• Article 11 - protection from being taken abroad illegally.
• Article 12 - children have the right to express views in all decisions affecting them (see also Section 1, Legislation Children (Scotland) Act 1995).
• Article 19 - protection from violence and abuse, including legal, social and educational measures and programmes for parents. There should be procedures to identify, investigate and act upon instances of violence or abuse.
• Article 20 - children may be taken into state care where a child has lost their family or where it is not in their best interests to stay with their family.
• Article 22 - protection and support for refugee children, whether alone or with parents.
• Article 23 - the right of disabled children to a full life and dignity, self-reliance and active participation as far as they are able.
• Article 28 and 29 - the right to an education, directed towards the development of the child's personality, talents and mental and physical abilities to their fullest potential.
• Article 32 - protection from hazardous work.
• Article 33 - protection from illicit drug use and trafficking.
• Article 34 - protection from sexual exploitation.
• Article 35 - protection from abduction and child trafficking.
• Article 36 - protection from all other forms of exploitation.
• Article 37 - protection from degrading or inhuman treatment or punishment.
• Article 39 - measures should be taken to support a child to recover from abuse.
• Article 40 - children who break the law are treated with dignity and supported to reintegrate into a constructive role in society.

What is required for schools, authorities, staff

It is good practice for staff to be aware of the UNCRC and for children to have opportunities to learn about their rights under the Convention. Children learning about their rights also learn that others have rights too - and that they must not treat others in a way that infringes their rights.

Further info

Scottish Alliance for Children's Rights - www.sacr.org.uk

Key contacts

For young people: www.article12.org
www.anationalvoice.org

Section 16

European Convention on Human Rights
(Incorporated by the Human Rights Act 1998 and the Scotland Act 1998)

What it concerns

Article 8 - people's right to respect for their private and family life, home and correspondence.

Article 3 - freedom from torture and inhuman or degrading treatment.

What is required for schools, authorities, staff

• Education professionals must balance the rights of children and the rights of parents with regard to Article 8. The role of public services must clearly be concerned with measures to protect children, where children's right to health and moral protection is not met by parents, or where parents need support in this role.
• All treatment concerning children, including school and parental discipline, should respect children's dignity.

Guidance

Section 17

Guidance on Exclusion (School Circular 8/03)

What it concerns

School exclusions.

What is required for schools, authorities, staff

• Schools should check that there are appropriate arrangements for the care of a pupil before s/he is sent from the school premises.
• Education authorities and schools should consider if there are family or other circumstances that mean support is required if a child is excluded.
• Social Work Services must be informed if a pupil has been excluded if the particular pupil is on the child protection register or is a Looked After child. Provision should also be put in place, as far as possible, to ensure the ongoing monitoring of the welfare of the child and provision for the child's educational needs as described in the child's Care Plan. Due regard should be given to the confidentiality of the child.
• Parents and carers of a Looked After child should be advised about the decision to exclude the child whenever possible.
• Education authorities and schools should consider if there are any additional considerations which should be made in respect of particular groups of pupils, including pupils with special educational needs and Looked After Children.
• It is good practice to undertake a risk assessment for any excluded child on the child protection register. The assessment should identify and address any difficulties relating to home circumstances which would likely arise from exclusion. Where necessary, locally agreed child protection procedures involving all the relevant agencies may come into play.
• Schools must act in accordance within their respective education authority's policies and procedures with regard to exclusion.

Further info

SEED Guidance Circular 8/03 on Exclusion - www.scotland.gov.uk/library5/education/cefs-00.asp

Key contacts

Tracy O'Hanlon, Scottish Executive,
Tel: 0131-244 1587
www.tracy.o'hanlon@scotland.gsi.gov.uk

Section 18

Helping Hands -Guidelines for staff who provide intimate care for children and young people with disabilities

What it concerns

Good practice in intimate care.

What is required for schools and authorities

• Schools should seek to engage with parents and children, prior to enrolment:
• to discuss the normal routines of the school; and
• to meet staff most likely to be involved with the child.
• Staff should receive training in good working practices which comply with health and safety regulations.

What is required for staff

• Wherever possible staff should work with children of the same sex.
• Staff should be mindful of and respect children's personal dignity at all times.
• Male members of staff should not normally be involved in providing intimate care of adolescent girls - except in emergency situations.
• Religious views and cultural values of families should also be taken into account.

Further info

http://www.scotland.gov.uk/library2/doc02/hhgs-02.htm

Section 19

Guidance on Sex Education in Schools (Circular 2/2001)

What it concerns

The need for appropriate level of sex education for children.

Informing and responding to parents and carers.

What is required for schools and authorities

• Education authorities should consider the following when providing sex education programmes:
• the value of a stable family life in a child's developments;
• ensure that the content of instruction provided is appropriate and has regard to each child's age, understanding and stage of development.
• Schools should inform and consult parents on the purpose and content of sex education, and when revising sex education programmes.
• Parents and carers should have the opportunity to view in advance key teaching materials and ask questions about the programmes. Parents may withdraw their child from sex education.
• Schools should also give pupils an opportunity to identify and express their own needs.

Further info

www.scotland.gov.uk/library3/education/finalcircular.pdf

Key contacts

Rod Burns, Scottish Executive,
tel: 0131-244 7853
rod.burns@scotland.gsi.gov.uk

Section 20

Scottish Translation, Interpreting and Communication Forum's Good Practice Guidelines

What it concerns

Provision of translation and interpreting services for children, young people and families from ethnic minorities.

What is required for schools, authorities, staff

• Adequate translation and interpreting services should be available for children and families from minority ethnic communities to enable them to understand and fully participate in any child protection enquiries that affect them.
• Interpreters should, whenever possible:
• be independent of the local ethnic community;
• have skills in interpreting for child protection purposes; and
• be aware of the need to maintain confidentiality.
• Children should not be expected to interpret for their parents or carers during child protection enquiries.

Further info

The Scottish Translation, Interpreting and Communication Forum - Good Practice Guidelines - SE 2002
www.scotland.gov.uk/library5/social/stic-00.asp

Section 21

Child Protection Committee Guidance
(Links with the Children (Scotland) Act 1995 and the Local Government in Scotland Act 2003.)

What it concerns

Strategic planning for inter-agency working on child protection.

What is required for schools and authorities

Child Protection Committees ( CPCs) are the key local bodies for developing and implementing child protection strategy across and between agencies. Their key functions are:

• to produce and disseminate public information regarding the protection of children and young people;
• to seek continuous improvement of child protection work; and
• to develop strategic planning alongside other planning priorities such as the integrated children's services plan and Community Planning.

Child Protection Committee Guidance

• Local authorities (along with the other key agencies) have a responsibility to ensure they work effectively as possible to protect children and young people.
• The Chief Executive of the local authority will ensure that a Chief Officers Group is established and that this Group will carry out the roles and responsibilities contained within the Guidance.
• Agencies - both individually and collectively - should demonstrate leadership and accountability for their work and its effectiveness.
• Service plans relating to child protection should be reflected within integrated children's services plans.
• From 2006-07 the CPC annual report and business plan will form a section of the integrated children's services plan.

Children (Scotland) Act 1995

• Local authorities have a duty to prepare, publish and keep under review plans regarding services for children, consult and inform stakeholders on these, and co-operation between agencies

Local Government in Scotland Act 2003

• Local authorities have a duty to initiate, maintain and facilitate a process of community planning, and other agencies have a duty to participate in the process. Local authorities should publish a report on its community planning and they have the power to do anything which they consider is likely to promote or improve wellbeing.

Further info

www.scotland.gov.uk/about/ED/CnF/00017834/CPCreform.aspx

Protecting Children and Young People: The Charter
www.scotland.gov.uk/library5/education/ccel-00.asp

Protecting Children and Young People: Framework for Standards
www.scotland.gov.uk/library5/education/pcypfs-00.asp

Child Protection Committee Directory
www.scotland.gov.uk/topics/people/young-people/early-education-child-care/17834/14723

Organisations

Section 22

Scotland's Commissioner for Children and Young People

The Commissioner:

• promotes and safeguards the rights of children and young people
• promotes best practice by service providers
• considers and reviews the adequacy and effectiveness of any law, policy and practice as it relates to the rights of children and young people
• commissions and undertakes research on matters relating to the rights of children and young people.

Contact details:

tel: 0131-558 5480
fax: 0131-718 6100

website: www.cypcommissioner.org/content/about-us/index.php
e-mail: enquiries@cypcommissioner.org

The Govan Law Centre's Education Law Unit

The Education Law Unit is an independent organisation which specialises in education law in Scotland. It works in partnership with schools, educational authorities, parents' groups and charities. The Unit also provides advice, information, training, mediation and representation services.

Contact details:

tel: 0141-445 1955
fax: 0141-445 3934
website: www.edlaw.org.uk/access.html
e-mail: advice@edlaw.org.uk

The Scottish Children's Reporter Administration ( SCRA)

The SCRA is the national body responsible for providing a care and justice system for Scotland's children. It has regional offices throughout Scotland. Its main responsibilities are:

• to facilitate the work of Children's Reporters
• to deploy and manage staff to carry out that work
• to provide suitable accommodation for children's hearings.

Contact details for SCRA headquarters:

tel: 01786 459500
fax: 01786 459533/45932
website: www.scra.gov.uk

Enquire

Enquire is the Scottish advice service for additional support for learning. The service is available to:

• parents and carers of children and young people with additional support needs
• children and young people
• professionals.

The service offers advice and information via a telephone helpline, publications, factsheets and tailored training for parents and professionals.

Contact details:

helpline: 0845 123 2303
tel: 0131 228 8484
text phone: 0131 22 22 439
e-mail: Enquire.SENinfo@childreninscotland.org.uk
website: www.enquire.org.uk

Scottish Human Rights Centre ( SHRC)

The SHRC is a non-governmental organisation which aims to promote human rights in Scotland. It provides a free advice and information service which is open to the public and deals with queries on education and other human rights' issues.

Contact details:

tel: 0141 332 5960
fax: 0141 332 5309
website: www.scottishhumanrightscentre.org.uk
e-mail: info@scottishhumanrightscentre.org.uk

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