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					                                              GUIDANCE TO COUNCILS
               ON THE APPLICATION OF THE PROTECTION OF CHILDREN (SCOTLAND) ACT 2003
                                               TO ELECTED MEMBERS




Introduction


The provisions of the Protection of Children (Scotland) Act 2003 (the “2003 Act”) apply to members of council
committees, joint committees and sub-committees concerned with the provision of education, accommodation, social
services or health care services to children (the “relevant committees”). Individuals who are included on any lists or
subject to any orders which identify them as disqualified from working with children are therefore prohibited from sitting
on any of the relevant committees. Councils are responsible for ensuring that all elected members who wish to sit on
such a committee are not disqualified. Councils should already have procedures in place to ensure that employees who
work in child care positions have not been disqualified. These procedures may also be applied to prospective members
of the relevant committees. This guidance answers the following questions:

1.   Why does the 2003 Act apply to elected members?

2.   Who is disqualified from working with children?

3.   What is the effect on councils of committee members being covered by the 2003 Act?

4.   What policies should councils adopt to ensure compliance with the 2003 Act?




f753b0e6-b1a9-4a0d-99e1-e4db68198fe8.doc
1.     Why does the 2003 Act apply to elected members?


Schedule 2 of the 2003 Act gives a list of child care positions to which the 2003 Act applies. Paragraph 6(b) of that
Schedule includes within that list “a member of a committee, including joint committee, of a local authority (or any sub-
committee thereof) which is concerned with the provision of education, accommodation, social services or health care
services to children”. For the purposes of the 2003 Act, a child is anyone under 18. Councils should have procedures in
place for ensuring that individuals in these positions are not disqualified from working with children. This guidance,
however, concentrates on the application of the 2003 Act to committee members.




The effect of the 2003 Act is to prohibit an individual who is disqualified from working with children (a “disqualified
individual”) from working in a child care position. It is therefore necessary to consider who qualifies as a disqualified
individual.




f753b0e6-b1a9-4a0d-99e1-e4db68198fe8.doc
2.      Who is disqualified from working with children?


For the purposes of the 2003 Act, an individual is a disqualified individual if they are:

     1. included (otherwise than provisionally) in the list kept by the Scottish Ministers of people considered unsuitable
        to work with children in terms of section 1 of the 2003 Act;

     2. included (otherwise than provisionally) in the list kept by the Secretary of State of individuals considered
        unsuitable to work with children in terms of section 1 of the Protection of Children Act 1999 (the “1999 Act”);

     3. subject to a direction under section 142 of the Education Act 2002 (the “2002 Act”) on the grounds that they are
        unsuitable to work with children;

     4. subject to an order disqualifying them from working with children under Part II of the Criminal Justice and Court
        Services Act 2000 (the “2000 Act”); or


     5. subject to a prohibition or disqualification which the Scottish Ministers have identified as equivalent to
        disqualification from working with children.

See Annex A for the circumstances in which an individual would be added to one of the above lists, or made subject to
one of the above orders.




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3.      What is the effect on councils of committee members being covered by the 2003 Act?


From 10 January 20051, it is an offence for a disqualified individual to apply for, offer to do, accept or do any work in a
child care position2. However, the key point from a council point of view is that from 11 April 2005 3, it will be an offence
for any organisation, which includes a council, to offer work in a child care position to, or procure work in such a
position for, a disqualified individual4. This includes offering work in a child care position to, or procuring such work for,
a disqualified individual who already works for the organisation. It would therefore be an offence for a council to offer a
position on a relevant committee to any disqualified individual. The 2003 Act only applies to the relevant
committees. It is not an offence for a disqualified individual to become an elected member, nor to serve on or
be offered a place on any other committee.


The 2003 Act also states that it is an offence for an organisation to fail to remove a disqualified individual from a child
care position5. However, the relevant provision has not yet come into force, and there is no date specified for it to do so.
It is therefore not, at present, an offence for a disqualified individual to remain on a relevant committee after 11 April
2005.

Where a council commits an offence under the 2003 Act with the consent or connivance of an officer or member of the
council, or if the offence is attributable to the neglect of such a person, that officer or member will also be guilty of the
offence. This is not limited to the appointment of elected members to the relevant committees. It also applies to all other
child care positions for which the council is responsible. It is therefore important that officers and members of councils
are aware of the application of the 2003 Act, so that they can be alert to any potential offence.

It is important for councils to adopt policies which disclose whether any potential committee member is disqualified.
This will ensure that councils meet their obligation under the 2003 Act to prove that they did not know, and could not
reasonably be expected to know, that an individual who was offered a child care position was disqualified.




1
  See the Protection of Children (Scotland) Act 2003 (Commencement No. 1) Order 2004 (“the 2004 Order”)
2
  s.11(1) of the Act
3
  See the 2004 Order
4
  s.11(3)(a) of the Act
5
  s.11(3)(b) of the Act

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4.      What policies should councils adopt to ensure compliance with the 2003 Act?


In the event that a disqualified individual is offered a child care position by a council, the council will have committed an
offence unless it can show that it did not know and could not reasonably be expected to know that the individual was
disqualified. Before a position on a relevant committee is taken up by any elected member, COSLA recommends that
councils conduct an enhanced disclosure check on that elected member.


Councils should already have procedures in place to obtain criminal record certificates from Disclosure Scotland in
respect of applicants for various child care positions in terms of the Police Act 1997 (the “1997 Act”) 6. These
procedures should also be applied to any proposal that an elected member join a relevant committee. Criminal record
certificates which have been requested in relation to applications for child care positions will show whether an individual
is:


       included on the list held by the Scottish Ministers under the 2003 Act;


       included on the list held by the Secretary of State under the 1999 Act; or


       subject to a direction under s.142 of the 2002 Act, together with the grounds under which that direction was
          given and any conditions applying thereto.


Councils should remember that an individual is not disqualified in terms of the 2003 Act if they are included on a list
provisionally. A criminal record certificate will show whether an inclusion on the Secretary of State’s list is provisional,
or under appeal. Councils should therefore determine whether an inclusion in that list is provisional.

A criminal record certificate will also not show whether an individual is subject to a disqualification order under the 2000
Act. Councils should therefore remember to check any criminal convictions shown by the certificate to determine
whether they included such an order.

It can take time to obtain a criminal record certificate. Councils should therefore consider whether to request a
certificate in respect of all elected members as soon as they are elected. This will avoid any future delay in the event of
a proposal that a member join a relevant committee. If a member does not wish to consent to an enhanced disclosure
check, or if they are a disqualified individual, they should be advised that they will be unable to take up a position on
any of the relevant committees.

COSLA has prepared guidance to be issued to all prospective candidates for council elections, to advise them that the
2003 Act will apply to them and that they will be unable to take up a position on a relevant committee if they are
disqualified from working with children. The guidance to candidates also advises that, if elected, they may be required
to consent to an enhanced disclosure check for the purposes of the 2003 Act.

Councils may already have a particular officer or team of officers responsible for assuring that all individuals appointed
to child care positions by council are vetted for the purposes of the 2003 Act. It may therefore be good practice to
ensure that similar procedures are adopted by the Chief Executive or other nominated senior officer for vetting elected
members. Councils may also wish to consider imposing a requirement that any information obtained from a criminal
record certificate may not be provided to any person unless it relates to a matter which disqualifies the individual from
working with children in terms of the 2003 Act, in which case it may be provided only to a suitably senior officer,



f753b0e6-b1a9-4a0d-99e1-e4db68198fe8.doc
preferably the council’s Chief Executive. The Chief Executive or other nominated senior officer would also be required
to keep the information confidential, subject to ensuring that members who are disqualified do not join relevant
committees. Such an arrangement should give members confidence that criminal record certificates are obtained solely
to ensure compliance with the 2003 Act, and will not be disclosed or used against them for political purposes. Councils
will also have obligations under the Data Protection Act 1998 in relation to the disclosure of personal information. If
councils are unsure of their obligations under that Act, they should seek legal advice.

Councils should feel free to contact COSLA if they have any concerns over the information provided herein, which is
intended for guidance only. If councils are unsure of their legal duties and obligations under the 2003 Act they should
seek separate legal advice.




6
    s.113 of the 1997 Act

f753b0e6-b1a9-4a0d-99e1-e4db68198fe8.doc
                                                             ANNEX A

               Why would an individual be added to a list or made subject to a disqualification order?



1.   The Scottish Minister’s disqualification list under the 2003 Act

     An individual will be added to the Scottish Ministers’ list only in certain circumstances. These circumstances are:

     1.1. The Ministers have received a reference from an organisation that an individual working for that organisation in
           a child care position has harmed a child or placed a child at risk of harm, have satisfied themselves that the
           reference is not vexatious or frivolous, have invited and considered information and observations from the
           individual concerned, the referring organisation or person, and any other person the Ministers think fit, and
           have decided that the individual concerned is not suitable to work with children7.

     1.2. The Ministers have received a reference from the Scottish Commission for the Regulation of Care, the Scottish
           Social Services Council or the General Teaching Council for Scotland that an individual working in a child
           care position has harmed a child or placed a child at risk of harm, and have followed the same procedure and
           reached the same decision as above8.

     1.3. An individual has been named in an inquiry of the Scottish Ministers, the Scottish Parliament or a tribunal set
           up by the UK Parliament to take evidence on a matter of urgent public importance9, and it appears from that
           report that the individual, while working in a child care position, harmed a child or placed a child at risk of
           harm. The Scottish Ministers have then invited and considered observations and information from the
           individual concerned and the organisation or person for whom they worked at the time of the harmful act, and
           have decided that the individual is unsuitable to work with children10.


     1.4. An individual has been convicted of one of the offences defined in Schedule 1 to the 2003 Act (which consists
           of sexual and neglect offences specific to children and other sexual offences and offences causing bodily
           injury where the victim is under 18), or has been acquitted of such an offence on grounds of insanity or is unfit
           to plead. The convicting court must then refer the case to the Scottish Ministers. The court may also decide to
           refer a case which involves any other offence where the victim is under 18. A reference can only be made if
           the court is satisfied that the individual is likely to commit a further offence against a child, and if the court’s
           proposal to refer the case has not been appealed or has been appealed unsuccessfully 11.


     Where the Scottish Ministers are considering a case under paragraphs 1.1, 1.2 or 1.3, the individual shall be
     included on the list on a provisional basis12. Notice of that inclusion will be given to the individual and, if they work in
     a child care position at the time, to the organisation they work for. An individual should not be on the provisional list
     for more than six months, although this time can be extended by the courts. An individual whose name appears on
     the Scottish Ministers’ list on a provisional basis is not considered a disqualified individual13. This will only be the
     case if inclusion on the list is made permanent.

2.   The Secretary of State’s disqualification list under the 1999 Act

7
  s.5 of the 2003 Act, in terms of a reference under s.2
8
  s.5 of the 2003 Act, in terms of a reference under s.4
9
  In terms of the Tribunals of Inquiry (Evidence) Act 1921
10
   s.6 of the 2003 Act
11
   s.10 of the 2003 Act
12
   s.7 of the 2003 Act
13
   s.17(1)(a) of the 2003 Act

f753b0e6-b1a9-4a0d-99e1-e4db68198fe8.doc
     The 1999 Act applies to England & Wales. The circumstances in which individuals will be placed on the Secretary of
     State’s list are largely the same as those under paragraphs 1.1, 1.2 and 1.3 above. The procedures followed are
     also largely similar. There are some differences, but these have little relevance to Scottish councils. In terms of the
     2003 Act, an individual whose name appears on the Secretary of State’s list on a provisional basis is not
     considered a disqualified individual14. This will only be the case if inclusion on the list is made permanent.

3.   Disqualification from teaching direction under section 142 of the Education Act 2002

     Such a direction prohibits a person from providing education at a school or further education institution, or in terms
     of a contract with an education authority, and also from managing an independent school or performing work for an
     education authority or similar body which would involve regular contact with children. A direction can be made for
     several reasons, but will only be relevant for the purposes of the 2003 Act if it is made on the grounds that the
     individual is unsuitable to work with children15. A direction may allow work under certain specified circumstances or
     subject to certain conditions, in which case an individual will not be considered disqualified from such work under
     the 2003 Act. The 2002 Act applies only to England & Wales. The relevant procedure in Scotland would be for the
     General Teaching Council for Scotland to refer an individual to the Scottish Ministers 16 and for that individual to be
     added to the Ministers’ list.

4.   Disqualification order under Part II of the Criminal Justice and Court Services Act 2000

     Again, this Act applies only to England and Wales. An order under this section is made by a court in similar
     circumstances to those at paragraph 1.4 above17. The circumstances in which the court will make such an order are
     narrower than under the 2003 Act, as the sentence passed by the court must exceed 12 months18. The 2003 Act
     contains no such minimum requirement. The 2000 Act makes it an offence for anyone in England and Wales to offer
     a child care position to an individual on the Secretary of State’s list or subject to a disqualification order 19.

5.   Prohibition or disqualification made under the law of any other territory or country and identified by the
     Scottish Ministers as corresponding to disqualification from working with children

     The Scottish Ministers have not made any orders identifying other prohibitions. However, inclusion on the list set up
     by the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 20, or a disqualification order
     made under that Order21, may be identified as corresponding to disqualification in the future.




14
   s.17(1)(b) of the 2003 Act
15
   s.142(4)(b) of the 2002 Act, as specified by s.17(1)(c) of the 2003 Act
16
   in terms of section 4 of the 2003 Act
17
   ss.28 & 29 of the 2000 Act
18
   s.30 of the 2000 Act
19
   s.35 of the 2000 Act
20
   ss.3-21 of that Order
21
   ss.22-34 of that Order

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                                             GUIDANCE TO CANDIDATES
               ON THE APPLICATION OF THE PROTECTION OF CHILDREN (SCOTLAND) ACT 2003
                                       TO ELECTED MEMBERS OF COUNCILS




Introduction


The provisions of the Protection of Children (Scotland) Act 2003 (the “2003 Act”) apply to members of council
committees, joint committees and sub-committees concerned with the provision of education, accommodation, social
services or health care services to children (the “relevant committees”). Individuals who are included on certain lists or
subject to certain orders which identify them as disqualified from working with children are therefore prohibited from
sitting on any of the relevant committees. Councils have responsibility to ensure that all elected members who wish to
sit on such a committee are not disqualified. Councils will already have procedures in place to ensure that employees
who work in child care positions are not disqualified. These procedures may also be applied to prospective members of
the relevant committees. Candidates for election to councils should therefore be aware of how the 2003 Act may affect
them if elected. This guidance answers the following questions:

1.   Why does the 2003 Act apply to elected members?

2.   Who is disqualified from working with children?

3.   What effect does the 2003 Act have on elected members of councils?

4.   What policies should be adopted to ensure compliance with the 2003 Act?




f753b0e6-b1a9-4a0d-99e1-e4db68198fe8.doc
1.   Why does the 2003 Act apply to elected members?


Schedule 2 of the 2003 Act gives a list of child care positions to which the 2003 Act applies. Paragraph 6(b) of that
Schedule includes within that list “a member of a committee, including joint committee, of a local authority (or any sub-
committee thereof) which is concerned with the provision of education, accommodation, social services or health care
services to children”. For the purposes of the 2003 Act, a child is anyone under 18. Councils should have procedures in
place for ensuring that individuals in these positions are not disqualified from working with children. This guidance,
however, concentrates on the application of the 2003 Act to committee members.

The effect of the 2003 Act is to prohibit an individual who is disqualified from working with children (a “disqualified
individual”) from working in a child care position. It is therefore necessary to consider who qualifies as a disqualified
individual.




f753b0e6-b1a9-4a0d-99e1-e4db68198fe8.doc
2.   Who is disqualified from working with children?


For the purposes of the 2003 Act, an individual is a disqualified individual if they are:

     6. included (otherwise than provisionally) in the list kept by the Scottish Ministers of people considered unsuitable
        to work with children in terms of section 1 of the 2003 Act;

     7. included (otherwise than provisionally) in the list kept by the Secretary of State of individuals considered
        unsuitable to work with children in terms of section 1 of the Protection of Children Act 1999 (the “1999 Act”);

     8. subject to a direction under section 142 of the Education Act 2002 (the “2002 Act”) on the grounds that they are
        unsuitable to work with children;

     9. subject to an order disqualifying them from working with children under Part II of the Criminal Justice and Court
        Services Act 2000 (the “2000 Act”); or


     10. subject to a prohibition or disqualification which the Scottish Ministers have identified as equivalent to
        disqualification from working with children.

See Annex A for the circumstances in which an individual would be added to one of the above lists, or made subject to
one of the above orders.




f753b0e6-b1a9-4a0d-99e1-e4db68198fe8.doc
3.   What effect does the 2003 Act have on elected members of councils?


Any candidate for election to a council who is a disqualified individual should be aware that, from 10 January 2005 22, it
is an offence for a disqualified individual to apply for, offer to do, accept or do any work in a child care position 23. It
would therefore be an offence for a disqualified individual, if elected, to seek a position on a relevant committee. In
addition, from 11 April 200524, it will be an offence for any organisation (including a council) to offer work in a child care
position to, or procure work in such a position for, a disqualified individual25. This includes offering work in a child care
position to, or procuring such work for, a disqualified individual who already works for the organisation. It will therefore
be an offence for a council to offer a position on a relevant committee to any disqualified individual. The 2003 Act only
applies to the relevant committees. It is not an offence for a disqualified individual to become an elected
member, nor to serve on or be offered a place on any other committee.


The 2003 Act also states that it is an offence for an organisation to fail to remove a disqualified individual from a child
care position26. However, the relevant provision has not yet come into force, and there is no date specified for it to do
so. It is therefore not, at present, an offence for a disqualified individual who is already a member of a relevant
committee to remain on that committee after 11 April 2005.


Where a council commits an offence under the 2003 Act with the consent or connivance of an officer or member of the
council, or if the offence is attributable to the neglect of such a person, that officer or member will also be guilty of the
offence. This is not limited to the appointment of elected members to the relevant committees. It also applies to all other
child care positions for which the council is responsible – including positions in schools, day care centres and social
work departments. It is therefore important that candidates for election to councils are aware of the application of the
2003 Act, so they can be alert to any potential offence.


It is important for councils to adopt policies which disclose whether any potential committee member is disqualified.
This will ensure that councils meet their obligation under the 2003 Act to prove that they did not know, and could not
reasonably be expected to know, that an individual who was offered a child care position was disqualified.




22
   See the Protection of Children (Scotland) Act 2003 (Commencement No. 1) Order 2004 (“the 2004 Order”)
23
   s.11(1) of the 2003 Act
24
   See the 2004 Order
25
   s.11(3)(a) of the 2003 Act
26
   s.11(3)(b) of the 2003 Act

f753b0e6-b1a9-4a0d-99e1-e4db68198fe8.doc
4.      What policies should be adopted to ensure compliance with the 2003 Act?


In the event that a disqualified individual applies for a child care position, that individual will have committed an offence
unless they can show that they did not know and could not reasonably have known that they were disqualified. In
normal circumstances, an individual should receive notice of any proceedings which may lead to the individual being
included in the lists under the 1999 or 2003 Act, or made subject to a direction under the 2002 Act, and be given a
chance to respond to those proceedings. The individual should also be notified of the final decision made following
those proceedings. It should be kept in mind that an inclusion on either list on a provisional basis does not qualify as
disqualification in terms of the 2003 Act. Only once that inclusion is confirmed will the individual be disqualified. A
disqualification order under the 2000 Act will only be made by a court following a criminal trial. It is therefore unlikely
that a candidate for election to a council will have been disqualified without their knowledge. However, mistakes can
happen, so it is in the interests of candidates to take steps to ensure that they are not disqualified before applying for a
position on a relevant committee, and potentially committing an offence.


COSLA has recommended to councils that they seek enhanced disclosure checks on an elected member before they
take up a position on a relevant committee. This will have the effect of protecting councils from any charge that they
failed to take reasonable steps to ensure that a child care position was not offered to a disqualified individual.

Councils should already have procedures in place to obtain criminal record certificates from Disclosure Scotland in
respect of applicants for various child care positions in terms of the Police Act 1997 (the “1997 Act”) 27. These
procedures should also be applied to any proposal that an elected member take up a position on a relevant committee.
Criminal record certificates which have been requested in relation to applications for child care positions will show
whether an individual is:


        included on the list held by the Scottish Ministers under the 2003 Act;


        included on the list held by the Secretary of State under the 1999 Act; or


        subject to a direction under s.142 of the 2002 Act, together with the grounds under which that direction was
          given and any conditions applying thereto.

It should be remembered that an individual is not disqualified in terms of the 2003 Act if they are included on a list
provisionally. A criminal record certificate will show whether an inclusion on the Secretary of State’s list is provisional,
or under appeal. However, these details will not be shown for an inclusion on the Scottish Minister’s list. Elected
members should therefore let councils know if an inclusion in that list is only provisional.

A criminal record certificate will also not show whether an individual is subject to a disqualification order under the 2000
Act. Councils should therefore check any criminal convictions shown by the certificate to determine whether they
included such an order.

COSLA has prepared guidance for councils to advise them of their responsibilities under the 2003 Act, and to advise
them that they should have in place some policy to ensure that disqualified individuals do not take up positions on any
relevant committees. One suggested policy is that councils may wish to request a criminal record certificate in respect
of all elected members as soon as they are elected, to avoid any delay in obtaining a certificate in the event of a


27
     s.113 of the 1997 Act

f753b0e6-b1a9-4a0d-99e1-e4db68198fe8.doc
proposal that a member join a relevant committee. Different councils may adopt different policies in order to comply
with the 2003 Act, but all councils should have some policy in place. Candidates may therefore wish to contact the
council to which they are seeking election for clarification of the policies which will apply to them if elected.

If a candidate does not comply with the policy put in place by the council to which they are seeking election, or
if they are a disqualified individual, they will, if elected, be unable to take up a position on any of the relevant
committees.

Councils may already have a particular officer or team of officers responsible for assuring that all individuals appointed
to child care positions by the council are vetted for the purposes of the 2003 Act. COSLA has suggested to councils
that it may therefore be good practice to ensure that similar procedures are adopted by the Chief Executive or other
nominated senior officer for vetting elected members. Councils may also adopt other policies to ensure that information
obtained from a criminal record certificate is kept strictly confidential, subject to ensuring that members who are
disqualified do not join relevant committees. These policies should be designed to give elected members and
candidates confidence that criminal record certificates are obtained solely to ensure compliance with the 2003 Act, and
will not be disclosed or used against them for political purposes. Again, different councils may adopt different policies in
relation to the treatment of such information. Candidates should therefore contact the council to which they are seeking
election for clarification of that council’s policies. Councils will also have obligations under the Data Protection Act 1998
in relation to the disclosure of personal information. Candidates should seek legal advice if they are unsure of the
application of that Act.

Candidates should feel free to contact COSLA if they have any concerns over the information provided herein, which is
intended for guidance only. If candidates are unsure of their legal duties and obligations under the 2003 Act they should
seek separate legal advice.




f753b0e6-b1a9-4a0d-99e1-e4db68198fe8.doc
                                                              ANNEX A

                Why would an individual be added to a list or made subject to a disqualification order?



6.   The Scottish Minister’s disqualification list under the 2003 Act

     An individual will be added to the Scottish Ministers’ list only in certain circumstances. These circumstances are:

     6.1. The Ministers have received a reference from an organisation that an individual working for that organisation in
           a child care position has harmed a child or placed a child at risk of harm, have satisfied themselves that the
           reference is not vexatious or frivolous, have invited and considered information and observations from the
           individual concerned, the referring organisation or person, and any other person the Ministers think fit, and
           have decided that the individual concerned is not suitable to work with children28.

     6.2. The Ministers have received a reference from the Scottish Commission for the Regulation of Care, the Scottish
           Social Services Council or the General Teaching Council for Scotland that an individual working in a child
           care position has harmed a child or placed a child at risk of harm, and have followed the same procedure and
           reached the same decision as above29.

     6.3. An individual has been named in an inquiry of the Scottish Ministers, the Scottish Parliament or a tribunal set
           up by the UK Parliament to take evidence on a matter of urgent public importance 30, and it appears from that
           report that the individual, while working in a child care position, harmed a child or placed a child at risk of
           harm. The Scottish Ministers have then invited and considered observations and information from the
           individual concerned and the organisation or person for whom they worked at the time of the harmful act, and
           have decided that the individual is unsuitable to work with children31.


     6.4. An individual has been convicted of one of the offences defined in Schedule 1 to the 2003 Act (which consists
           of sexual and neglect offences specific to children and other sexual offences and offences causing bodily
           injury where the victim is under 18), or has been acquitted of such an offence on grounds of insanity or is unfit
           to plead. The convicting court must then refer the case to the Scottish Ministers. The court may also decide to
           refer a case which involves any other offence where the victim is under 18. A reference can only be made if
           the court is satisfied that the individual is likely to commit a further offence against a child, and if the court’s
           proposal to refer the case has not been appealed or has been appealed unsuccessfully 32.


     Where the Scottish Ministers are considering a case under paragraphs 1.1, 1.2 or 1.3, the individual shall be
     included on the list on a provisional basis33. Notice of that inclusion will be given to the individual and, if they work in
     a child care position at the time, to the organisation they work for. An individual should not be on the provisional list
     for more than six months, although this time can be extended by the courts. An individual whose name appears on
     the Scottish Ministers’ list on a provisional basis is not considered a disqualified individual34. This will only be the
     case if inclusion on the list is made permanent.

7.   The Secretary of State’s disqualification list under the 1999 Act

28
   s.5 of the 2003 Act, in terms of a reference under s.2
29
   s.5 of the 2003 Act, in terms of a reference under s.4
30
   In terms of the Tribunals of Inquiry (Evidence) Act 1921
31
   s.6 of the 2003 Act
32
   s.10 of the 2003 Act
33
   s.7 of the 2003 Act
34
   s.17(1)(a) of the 2003 Act

f753b0e6-b1a9-4a0d-99e1-e4db68198fe8.doc
     The 1999 Act applies to England & Wales. The circumstances in which individuals will be placed on the Secretary of
     State’s list are largely the same as those under paragraphs 1.1, 1.2 and 1.3 above. The procedures followed are
     also largely similar. There are some differences, but these have little relevance to Scottish councils. In terms of the
     2003 Act, an individual whose name appears on the Secretary of State’s list on a provisional basis is not
     considered a disqualified individual35. This will only be the case if inclusion on the list is made permanent.

8.   Disqualification from teaching direction under section 142 of the Education Act 2002

     Such a direction prohibits a person from providing education at a school or further education institution, or in terms
     of a contract with an education authority, and also from managing an independent school or performing work for an
     education authority or similar body which would involve regular contact with children. A direction can be made for
     several reasons, but will only be relevant for the purposes of the 2003 Act if it is made on the grounds that the
     individual is unsuitable to work with children36. A direction may allow work under certain specified circumstances or
     subject to certain conditions, in which case an individual will not be considered disqualified from such work under
     the 2003 Act. The 2002 Act applies only to England & Wales. The relevant procedure in Scotland would be for the
     General Teaching Council for Scotland to refer an individual to the Scottish Ministers37 and for that individual to be
     added to the Ministers’ list.

9.   Disqualification order under Part II of the Criminal Justice and Court Services Act 2000

     Again, this Act applies only to England and Wales. An order under this section is made by a court in similar
     circumstances to those at paragraph 1.4 above38. The circumstances in which the court will make such an order are
     narrower than under the 2003 Act, as the sentence passed by the court must exceed 12 months 39. The 2003 Act
     contains no such minimum requirement. The 2000 Act makes it an offence for anyone in England and Wales to offer
     a child care position to an individual on the Secretary of State’s list or subject to a disqualification order 40.

10. Prohibition or disqualification made under the law of any other territory or country and identified by the
     Scottish Ministers as corresponding to disqualification from working with children

     The Scottish Ministers have not made any orders identifying other prohibitions. However, inclusion on the list set up
     by the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 41, or a disqualification order
     made under that Order42, may be identified as corresponding to disqualification in the future.




35
   s.17(1)(b) of the 2003 Act
36
   s.142(4)(b) of the 2002 Act, as specified by s.17(1)(c) of the 2003 Act
37
   in terms of section 4 of the 2003 Act
38
   ss.28 & 29 of the 2000 Act
39
   s.30 of the 2000 Act
40
   s.35 of the 2000 Act
41
   ss.3-21 of that Order
42
   ss.22-34 of that Order

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