Protecting Children - Securing their Safety

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The index

1. Against this background, the Scottish Executive intend to establish a central list containing the names of persons deemed unsuitable to work with children, whether as paid employees or unpaid volunteers.

Criteria for Inclusion on the Index

2 Names to be Included on the Index will be those of persons who have been dismissed or transferred from positions giving access to children by reason of misconduct which has caused a child (or children) harm or has put a child (or children) at risk of harm. The names of persons who resigned or simply walked out in such circumstances to avoid dismissal would also be notified. Because the minimum standard of proof for dismissal is on the balance of probabilities, by implication the same standard would apply to inclusion on the Index. "Harm" would not only cover the deliberate infliction of physical or mental harm. It would also cover circumstances where such harm resulted, or might have resulted, from a degree of carelessness or neglect which amounted to misconduct. It is not intended that the Index will cover those persons who might be deemed unsuitable to work with children, or certain types of children in certain circumstances. for medical reasons (for example. if epilepsy meant that there might be some risk in leaving young children under the sole supervision of a person). Such circumstances should be picked up through routine medical checks before offering someone a post. Neither is it intended that all persons dismissed from a post involving children because of misconduct should be liable to be placed on the Index.

The test is whether a child was harmed or put at risk of harm. Thus, for example, someone working in a nursery who had stolen the petty cash would not for that reason alone be liable for inclusion. Where such a theft led to a criminal record, however, it would show up as appropriate in subsequent criminal record checks.

3 Under the proposed arrangements, List 1R would be discontinued. Being placed on the current list is almost always the result of a criminal conviction and under the new arrangements those currently on List I R for such a reason will be picked up by means of a criminal records check. For the future the General Teaching Council will have powers to deregister teachers while the Index will provide additional protection. It will be necessary to establish appropriate links between the General Teaching Council and similar professional bodies and the Index.

4. There will be no time limit to restrict the period of time between such an act of misconduct taking place and someone being placed on the Index. Past court cases have demonstrated that on occasion there can be an interval of some decades between such an act and its discovery.

Proposal (2) - the Index will be a list of people who have been dismissed or transferred from positions giving access to children as a result of misconduct which has caused harm to a child (or children) or put a child (or children) at risk of harm; or who have resigned or simply walked out in such circumstances.

Employers - Legal Responsibilities

5. The legislation will place a duty upon employers to notify names for possible inclusion on the Index where there is a clear case for placing them on it. The legislation will deliberately be fairly broad in defining those employers (including some voluntary organisations) upon whom such duties will be placed. But among such employers will be children's detention institutions children's homes, children's hospitals. educational institutions mainly or exclusively for children, nurseries, family centres, playgroups, and out of school clubs Such organisations would also be under a duty to consult the Index when they intend to employ someone In a position working with children. Such positions will include posts whose normal duties Include caring for, training, supervising or being in sole charge of children: posts whose normal duties involve unsupervised contact with children, posts whose normal duties involve supervising working children aged under I 6 (e.g. tutors of child actors), and positions likely to give access to children, such as being a trustee of a children's charity. Positions whose normal duties Involve directly supervising or managing any of those In the positions just described or with authority to dismiss them, will also be included Those organisations which are placed under an obligation to notify and consult the Index will be those that are already regulated by the state. Those that are not regulated, such as more informal tuition and leisure activities for children will not be obliged, but will be allowed, to notify and consult the Index.

Proposal (3) employers of those working with children will have a duty to notify the Executive of those people whom they judge to meet the criteria for inclusion on the Index

Proposal (4) - regulated organisations will have a duty to consult the Index when considering applicants for positions working with children Other organisations (mainly voluntary) involved in working with children will be able but not obliged to consult the Index.

Proposal (5) - working with children will include posts where normal duties involve caring

for, training, supervising or being in sole charge of children: unsupervised contact with children: supervising working children aged under I6; positions likely to give access to children and positions involving the direct supervision and management of the above.

Decisions

6. The legislation to establish the Index will give Scottish Ministers the power to place a person's name upon it. Overall oversight of the Index will rest with the Scottish Minister whose portfolio Includes child protection. Currently this is the Minister for Children & Education. In practice, decisions whether or not to place a person's name on the Index will usually be taken by officials acting on behalf of Ministers. That does not preclude Ministers taking a more active role in particular cases which may give rise to difficulties or which may be the focus of public attention.

7. The decision whether or not to place a person s name on the Index will be founded on a paper-based approach. (There will, however, be scope for orally based evidence in the appeals system - see further below). Consideration of whether to place someone s name on the Index will be triggered by receipt of an initial letter from the referring organisation. (Where a referring organisation made first contact by phone they would be asked to send in a letter setting out the circumstances). Thereafter, officials might well seek further evidence

from the referring organisation on any points that were unclear. In addition, except in Instances, expected to be rare, where the initial referral was deemed to present no case to answer, the person who was being considered for inclusion on the Index would be Invited to submit any observations within a specified time limit.

Provisional Listing

8. Where circumstances warrant, Scottish Ministers will be able to place a name on the Index on a provisional basis for a period of up to 6 months. This could be done as soon as the initial referral was received, and before the person concerned has the opportunity to submit observations or any further evidence has been obtained from the referring organisation. A person could also be provisionally placed on the Index for a period longer than 6 months, where the circumstances of the case led to civil proceedings. In practice. this would usually be where the circumstances leading to the organisation referring someone to the Index had also led to the person's dismissal with an ensuing Employment Tribunal. The Employment Tribunal would not be informed whether or not someone had been placed provisionally on the Index to avoid prejudicing its decision. When the Employment Tribunal or other civil proceeding had ceased, a final decision would then need to be reached on the case for inclusion on the Index within a period of 6 months. Although the evidence considered by the Employment Tribunal on whether dismissal was warranted, and that considered for inclusion of someone's name on the Index, will often be essentially the same, it is possible that an Employment Tribunal might decide that dismissal had not been warranted but that Scottish Ministers will nevertheless decide to place someone on the Index. This is to allow, for example, for circumstances where a technical deficiency in the dismissal procedure led the Employment Tribunal to uphold an appeal against dismissal but where inclusion on the Index still seemed warranted.

9. It is intended that a decision to place someone provisionally on the Index could be taken by any officer of the Scottish Ministers. A final decision to place someone on the Register will need to be approved by a member of the Senior Civil Service together with either or both of a member of the Social Work Services Inspectorate or Her Majesty's Inspectorate of Schools A member of Her Majesty's Inspectorate will be involved where the decision to place someone on the Index arose from events that had taken place in a school context.

10. A person's name will either be on or off the list: that is to say, someone will be deemed to be either suitable or unsuitable to work with children, defined as persons aged between 0 and I 8 years It is not intended to have any sub-categories of persons deemed unsuitable to work with children of, for example, a particular gender or age bracket.

Proposal (6) - the procedure for placing a person on the Index will be:-

i) receipt of letter by referring organisation;

ii) provisional listing (where appropriate);

iii) evidence/clarification sought from referring organisations:

iv) observations invited from subject of referral;

v) decision: and

vi) notification of decision.

Appeals

11. When a decision is made to place a person's name on the Index, that person would be notified of the decision. Should the person disagree with the decision to place him or her on the Index they would then have the right to appeal against this. Whereas the decision-making process to put someone on the Index in the first place would be paper-based, oral evidence would be able to be heard for the appeal.

Appeals Mechanism: Sheriff or Tribunal?

12. In England and Wales the Protection of Children Act 1999 established a Tribunal to deal with appeals against placement on the Index there (this Tribunal is in the process of being set up and will become operational later this year) Such an approach would be one possibility for establishing an appeals mechanism in Scotland: how this might work is described in more detail below. The alternative would be to appeal to the Sheriff There are some similarities between the kind of issue that will be raised in appeals from being placed on the Index to the type of 'fitness to practice' decisions usually undertaken by Tribunals, insofar as in both contexts an individual's ability to continue in a particular line of work will be at stake. But arguably decisions in Index cases will turn more on establishing and interpreting the facts about a specific incident that led to an employee's dismissal than assessing fitness to practice from evidence of professional practice over a period of time. That type of assessment of evidence would more normally be dealt with by a Sheriff than a Tribunal It will be necessary to weigh these alternatives carefully and views on this would be welcome. Ministers will also take carefully Into account any possible implications for the rights of the individual in considering the best way to set up an appeals mechanism, given the comparative gravity of being placed on the Index.

Tribunal: Structure and Remit

13 If appeal were to the Sheriff there would be existing structures in place for the appeals mechanism. If a Tribunal were used as the appeals mechanism, this would need to be established specially for this role. It is Intended that It would have a legally qualified Chairman, together with two other members, at least one of whom would have a background in children's services It is envisaged that the Tribunal would be drawn from a relatively small number of Tribunal members who would be called upon as necessary for individual cases. If an Index were created for those deemed unsuitable to work with vulnerable adults, (see paragraph 2 1 ) appeals for this might also be considered by this Tribunal

14. A person remaining on the Index following a Tribunal decision would be able to appeal to the Sheriff but only on a point of law. In other words the Sheriff would not be able to reassess whether the Tribunal had judged the facts correctly but would be able to over-rule the Tribunal decision if he or she thought that there had been a legal flaw in any decision taken on the basis of those facts.

15. Because of the potentially serious consequences of being placed on the Index, particularly in career or vocational terms, legal aid will be made available for Tribunal proceedings in relation to the Index for those appellants who do not have access to other means of support. e.g. independent means, trade union support or other well established support mechanisms. This recognises that this Tribunal will deal with exceptionally serious matters. Legal Aid will take the form of Advice by Way of Representation, which covers the cost of a solicitor representing a case, and will be subject to the normal rules. (If appeal were to a Sheriff then legal aid would be available in the same way.)

Periodic Appeals

16. If a person were unsuccessful at appeal his or her name would remain on the Index on a permanent basis or until such time as they could demonstrate to the Sheriff or Tribunal (as the case may be) that, because of a change in circumstances, they no longer presented a risk to children. An example would be where a dependency on alcohol or drugs was the root cause of a person putting a child at risk and that person could show that they were no longer dependent and as a result no longer presented a risk. The frequency of appeal would be limited to every 10 years following inclusion on the Index for those over 18 at the age of first inclusion and every 5 years for those aged 18 and under.

Proposal (7) - where a decision has been made to place a person on the Index they will be able to appeal against the decision :-

• on initial placement on the list;
• at intervals of 10 years following inclusion on the list (those over 18)
• at intervals of 5 years following inclusion on the list (those 18 and under).

Views are welcomed on whether the best avenue of appeal would be to the Sheriff, or to an independent Tribunal of the type described above.

Operation

17. Access to information held on the Index will be obtained by applying for a criminal record certificate or an enhanced criminal record certificate under Part V of the Police Act through the SCRO (it is expected that for posts based in Scotland application will be made to the SCRO, for posts in England and Wales application would be made to the CRB). Information on the Index will only be accessible through the SCRO (and analogous agencies elsewhere in the UK). SCRO will act as a one stop shop and will include on Part V certificates information from the Index (including those established elsewhere in the United Kingdom) for a specified range of positions. Childcare organisations will be obliged to seek such information under the legislation. The new arrangements will be publicised through umbrella organisations and the Scottish Commission for the Regulation of Care.

18. There will be charges for the three types of criminal conviction and record Information to be provided by the SCRO. (Charges to voluntary sector organisations are currently being reviewed.) It is anticipated that any additional charges for Index information should be minimal. As with criminal record information, to qualify for access to Index information an organisation will have to be registered with the SCRO. To register a person must be a body corporate or unicorporate, a person appointed to a statutory office or an individual who employs others in the course of a business.

Proposal (8) - registered bodies will be able to access lndex information through the Scottish Criminal Records Office.

19. It is expected that the responsibility of the SCRO in relation to the Index will simply be confined to checking whether individuals are on the Index and so informing the organisation seeking such in formation. The compilation and maintenance of the Index would be undertaken by separate officials working directly for Scottish Ministers. In view of the seriousness for the individual of being placed on the Index, it seems proper that this responsibility should rest with Scottish Ministers given their accountability to the Scottish Parliament and ultimately, to the electorate. These arrangements parallel those being put in place elsewhere in the United Kingdom.

Wider Dimension

20. Past experience demonstrates that those who might be capable of causing harm to a child can be very determined in seeking positions that allow them contact with children. It is therefore vital that any system of child protection should effectively extend across the whole of the United Kingdom. There will be those who will be all too ready to exploit any loopholes or discrepancies. To that end, the legislation establishing the Index will also allow the Criminal Records Bureau in England and Wales and any similar body in Northern Ireland to access information. Similar legislation elsewhere in the United Kingdom will allow access from Scotland to information held on the English, Welsh and Northern Irish lists As will be seen in various places throughout this consultation paper, what Is being proposed for Scotland has close parallels to what is happening or proposed to happen elsewhere in the United Kingdom. Although child protection is a devolved matter, the administrations across the United Kingdom believe that our children deserve the same - and the highest - standards of protection. As regards the disqualification to be imposed on persons deemed unsuitable to work with children to be supported by a new criminal offence (see further below), the legislation will allow those disqualified in the rest of the United Kingdom also to be disqualified in Scotland. Since the Northern Irish equivalent of the Scottish Criminal Record Office and the legislation to put in place a disqualification in Northern Ireland do not yet exist, extension to Northern Ireland will be effected by an order making power.

Vulnerable Adults

21. The legislation will enable Scottish Ministers, by means of an Order subject to affirmative procedure - in other words, it would only come into effect if the Scottish Parliament voted for this - to apply the arrangements being put in place for the protection of children under the legislation also to apply to vulnerable adults. Vulnerable adults with such an impairment may have similar difficulties to those children whom the legislation intends to protect, in protecting their own interests without these added safeguards. If this were put into effect there would be a further Index containing the names of persons deemed unsuitable to work with vulnerable adults.

Proposal (9) - provision will he made for a separate Index to be established containing the names of persons deem unsuitable to work with vulnerable adults This would require to be approved by the Scottish Parliament.

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