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An introduction to child protection legislation in the UK

NSPCC factsheet

January 2014

A brief introduction to the legislation that protects children and young people in the UK.

Introduction
Children and Young Persons Act 1933
The Children Act 1989
After the Children Act 1989
Children Act 2004
After the Children Act 2004
Legislation to protect children from adults who pose a risk
What the legislation doesn’t cover
References
Related content
Further readings


Introduction

There is no single piece of legislation that covers child protection in the UK, but rather a countless number of laws and guidance that are continually being amended, updated and revoked.

Statutory law and case law

Laws are amended by new legislation passed by Westminster, the Northern Ireland Assembly, the Scottish Parliament and the Welsh Assembly Government. This is known as statutory law.

Laws also have to be interpreted by the courts. The way in which courts interpret laws is known as case law. This can also have the effect of amending statutory law.

Four nations

Not all laws cover all parts of the UK (England, Northern Ireland, Scotland and Wales) and the legal systems vary in the different areas. Although this factsheet references Northern Ireland, Scotland and Wales, it does not provide a comprehensive picture of the legal framework in these nations.

See our individual factsheets on the child protection guidance and legislation for Northern Ireland, Scotland and Wales.

Civil law and criminal law

Legislation (statutory law) covering child protection is divided into:

  • civil law. Civil law is divided into:
    • public law which puts in place systems and processes in order to minimise the risk of children coming to harm and lays out what action should be taken if children are at risk
    • private law which deals with family proceedings such as divorce and contact.
  • criminal law which deals with people who have offended or are at risk of offending against children.

In practice, some Acts may include provisions that relate both to civil law and criminal law.


Children and Young Persons Act 1933

The Children and Young Persons Act 1933 is one of the older pieces of child protection legislation which has parts that are still in force today. It includes a list of offences against children, which are referred to as Schedule One offences.


The Children Act 1989

The current child protection system is based on the Children Act 1989.

Four nations

The Children Act 1989 legislates for England and Wales.

The Children (Northern Ireland) Order 1995 and the Children (Scotland) Act 1995 share the same principles.

Principles

The Children Act 1989 introduced and enshrined a number of principles:

  • a child's welfare is paramount when making any decisions about a child's upbringing, know as the "paramountcy principle" (section 1)
  • the court must ascertain the wishes and feelings of the child and shall not make an Order unless this is "better for the child than making no Order at all" (section 1)
  • every effort should be made to preserve the child's home and family links
  • and parental responsibility, defined as "the rights, duties, powers and responsibilities which by law a parent of a child has in relation to the child and his property" (section 3).

Duty of local authorities

The Children Act 1989 sets out in detail what local authorities and the courts should do to protect the welfare of children.

It charges local authorities with a duty to:

  • provide "services for children in need, their families and others" (section 17).
  • investigate "if they have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm" (section 47).

NSPCC

Section 31 sets out the NSPCC's "authorised person" status. This means the NSPCC has the power to apply directly for a court order if it believes a child is suffering or likely to suffer significant harm.

Definition of harm

The Children Act 1989 defines "harm" as ill-treatment (including sexual abuse and non-physical forms of ill-treatment) or the impairment of health (physical or mental) or development (physical, intellectual, emotional, social or behavioural) (section 31).

"Significant harm" is not defined in the Act, although it does say that the court should compare the health and development of the child "with that which could reasonably be expected of a similar child" (section 31).

Authorities have to decide what constitutes "significant harm" by looking at the facts of each individual case.

Guidance under the Children Act 1989

In England, statutory guidance to help professionals to identify children at risk and on interagency cooperation was first published in 1991. The current version is: Working together to safeguard children: a guide to inter-agency working to safeguard and promote the welfare of children (PDF) (HM Government, 2013).

The guidance sets out:

  • definitions of child abuse and neglect
  • what action agencies must take to protect children
  • roles and responsibilities
  • requirements for local safeguarding children boards
  • the process for serious case reviews (conducted after the death or serious injury of a child).

In Northern Ireland the guidance is Co-operating to safeguard children (PDF) (DHSSPS, 2003).

In Scotland the guidance is National guidance for child protection in Scotland (PDF)(Scottish Government, 2010).

In Wales the guidance is Safeguarding children: working together under the Children Act 2004 (PDF) (Welsh Assembly Government, 2006).

Mandatory reporting

Local authorities have a mandatory duty to investigate if they are informed a child may be at risk but there are no specific mandatory child abuse reporting laws in the UK that require professionals to report their suspicions to the authorities.

In Northern Ireland, it is an offence not to report an arrestable crime to the police, which by definition, includes most crimes against children (Wallace and Bunting, 2007).

Most professional bodies issue guidance to their members which sets out what they should do if they are concerned about the welfare of a child who they come into contact with (for an example see the Royal College of Nursing, 2007).


After the Children Act 1989

Children's rights

The United Nations Convention on the Rights of the Child (UN, 1989) was ratified by the UK on 16 December 1991. It includes a child's right to:

  • protection from abuse
  • express their views and have them listened to
  • care and services if they are disabled or living away from home.

Although the Government has said it regards itself bound by the Convention and refers to it in child protection guidance, it has not become part of UK law (Lyon, 2003 p 2).

Wales is the first, and so far only, part of the UK to embed the principles of the UN Convention into its own laws. The National Assembly for Wales passed the Rights of Children and Young Persons (Wales) Measure on 18 January 2011.

The Measure imposes a legal duty on Welsh ministers to have due regard to the rights and obligations set out in the Convention in exercising any of their functions and a duty to promote knowledge and understanding of the Convention. The legislation was enforced in two parts: from May 2012 for new or reviewed law or policy and from May 2014 for all Welsh ministers' functions.

The Human Rights Act 1998 incorporated the European Convention on Human Rights into UK law. Whilst it does not specifically mention children's rights, children are covered by this legislation as they are persons in the eyes of the law (Bainham, 2005 p 82). These rights include the right to respect for private and family life.

The Act makes it unlawful for public authorities to act in a manner which is incompatible with the rights and freedoms contained in the Act. It also requires the Government and the courts to ensure that court rulings and new Bills are compatible with the Act wherever possible.

Children's commissioners

The Children's Commissioner for Wales Act 2001 created the first children's commissioner post in the UK.

The principal aim of the Commissioner is to safeguard and promote the rights and welfare of children.

Subsequent legislation created a children's commissioner for Northern Ireland (Commissioner for Children and Young People (NI) Order 2003), Scotland (Commissioner for Children and Young People (Scotland) Act 2003) and England (sections 1-9 of the Children Act 2004).

Safeguarding in education

The Education Act 2002 included a provision requiring school governing bodies, local education authorities and further education institutions to make arrangements to safeguard and promote the welfare of children (section 175).

Domestic violence

Section 120 of the Adoption and Children Act 2002 amended the Children Act 1989 by expanding the definition of "harm" to include witnessing domestic violence.


Children Act 2004

Background

Following the death of eight-year old Victoria Climbié in 2000, the Government asked Lord Laming to conduct an inquiry (Laming, 2003) to help decide whether to introduce new legislation and guidance to improve the child protection system in England.

The Government’s response was the Keeping children safe report (DfES, DH and Home Office, 2003) and the Every Child Matters green paper (DfES, 2003), which led to the Children Act 2004.

Contents of the Act

The Children Act 2004 does not replace or even amend much of the Children Act 1989. It covers England and Wales in separate sections.

The Act:

  • creates the post of Children's Commissioner for England
  • places a duty on local authorities to appoint a director of children’s services and an elected lead member for children’s services, who is ultimately accountable for the delivery of services. The government published revised statutory guidance relating to the two posts in April 2012 (DfE, 2012)
  • places a duty on local authorities and their partners (including the police, health service providers and the youth justice system) to co-operate in promoting the wellbeing of children and young people and to make arrangements to safeguard and promote the welfare of children
  • puts the new Local Safeguarding Children Boards on a statutory footing (replacing the non-statutory Area Child Protection Committees) and gives them functions of investigation and review (section 14), which they use to review all child deaths in their area
  • updates the legislation on physical punishment (section 58) by limiting the use of the defence of reasonable punishment so that it can no longer be used when people are charged with the offences against a child of wounding, actual or grievous bodily harm or cruelty. Therefore any injury sustained by a child which is serious enough to warrant a charge of assault occasioning actual bodily harm cannot be considered to be as the result of reasonable punishment. (DCSF, 2007).

After the Children Act 2004

The Children and Adoption Act 2006 gives courts more flexible powers to facilitate child contact and enforce contact orders when separated parents are in dispute.

The Children and Young Persons Act 2008 legislates for the recommendations in the Care Matters white paper (DfES, 2007) to provide high quality care and services for children in care. It covers England and Wales (in part) and also places a duty on registrars to notify the Local Safeguarding Children Board of all child deaths.

The Borders, Citizenship and Immigration Act 2009 places a duty on the UK Border Agency to safeguard and promote children's welfare (section 55), bringing them in line with other public bodies that have contact with children.

The Apprenticeships, Skills, Children and Learning Act 2009 legislates for there to be two lay members from the local community sitting on each Local Safeguarding Children Board.

The Education Act 2011 makes changes to provisions on school discipline and places restrictions on the public reporting of allegations made against teachers.


Legislation to protect children from adults who pose a risk

In addition to the civil laws that set out the duties of public bodies to protect children, there are also laws that protect children by monitoring adults who pose a risk, creating offences with which they can be charged and stopping them from working with children.

Sexual offences

The Sex Offenders Act 1997 requires sex offenders convicted or cautioned on or after 1 September 1997 to notify the police of their names and addresses and of any subsequent changes (known colloquially as the sex offenders register).

The Sexual Offences Act 2003 was introduced to update the legislation relating to offences against children. It includes the offences of grooming, abuse of position of trust, trafficking, and covers offences committed by UK citizens whilst abroad. It also updates the Sex Offenders Act 1997 by strengthening the monitoring of sex offenders.

The Sexual Offences (NI) Order 2008 and the Sexual Offences (Scotland) Act 2009 introduce similar offences for Northern Ireland and Scotland.

The Criminal Justice and Immigration Act 2008 allows people who commit sex offences against children abroad to face prosecution in the UK, even if that offence is not illegal in the country in which it was committed.

The Sexual Offences Act 2003 (Remedial) Order 2012 was made in response to a Supreme Court ruling in 2010 that permanent inclusion on the sex offender register without review was incompatible with Article 8 of the European Convention on Human Rights. It amends the Sexual Offences Act 2003 to allow sex offenders who are subject to notification requirements for life to apply for those requirements to be reviewed.

Female genital mutilation (FGM)

The Female Genital Mutilation Act 2003 extends the existing legislation criminalising FGM in the UK, by making it an offence for UK nationals or permanent UK residents to take a girl abroad, or to help others to take a girl abroad, to carry out FGM, even in countries where the practice is legal.

Domestic violence

The Domestic Violence, Crime and Victims Act 2004 closes a legal loophole (whereby defendants in murder and manslaughter cases could escape conviction by claiming each other had killed the child) by creating a new offence of causing or allowing the death of a child or vulnerable adult. The offence establishes a new criminal responsibility for members of a household where they know that a child or vulnerable adult is at significant risk of serious harm.

The Domestic Violence, Crime and Victims (Amendment) Act 2012 extends the 2004 offence to include "causing or allowing child or vulnerable adult to suffer serious physical harm".

Vetting and barring

Home Office circular Guidance on offences against children (16/2005) consolidates a list of offences for all agencies to use in identifying "a person identified as presenting a risk, or potential risk, to children". It also discusses the use of the terms "Schedule One" offenders and offences.

The Serious Organised Crime and Police Act 2005 creates and sets the framework for the UK-wide Child Exploitation and Online Protection (CEOP) Centre. It also includes provisions for improving the vetting system to stop adults who pose a risk from working with children (section 163).

The Safeguarding Vulnerable Groups Act 2006 was the Government’s response to the Bichard Inquiry report (PDF) (Bichard, 2004) which examined vetting procedures after the murders of ten-year-olds Jessica Chapman and Holly Wells in 2002. It establishes a new centralised vetting and barring scheme for people working with children.

The Safeguarding Vulnerable Groups Act 2006 covers England and Wales. The Safeguarding Vulnerable Groups (NI) Order 2007 covers Northern Ireland and the Protection of Vulnerable Groups (Scotland) Act 2007 covers Scotland. The two acts and NI Order should work together to provide a robust system for vetting staff and barring people who are unsuitable to work with children across the UK.

The Safeguarding Vulnerable Groups Act 2006 was amended by the Protection of Freedoms Act 2012, which replaces the vetting and barring scheme with a scaled-back disclosure and barring service.

Forced marriage

The Forced Marriage Act (Civil Protection) 2007 gives courts the power to make orders to protect the victim or potential victim of a forced marriage and help remove them from that situation. Although this Act does not make forcing someone into marriage a crime, anyone found to be contravening a Forced Marriage Protection Order can be charged with a criminal offence.

Similar legislation exists in Scotland with the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011.


What the legislation doesn’t cover

There is no specific legislation that covers the minimum age at which a child may be left alone or how old a babysitter should be.

The NSPCC has published guidance and a leaflet called Home alone (2013) to help parents make decisions about how, when and for how long it is safe to leave their children at home.


References

R (on the application of F (by his litigation friend F)) and Thompson (FC) v Secretary of State for the Home Department [2010] UKSC 17.

Bainham, A. (2005) Children: the modern law. 3rd ed. Bristol: Family Law.

Bichard, M. (2005) Bichard Inquiry report (PDF). London: Cabinet Office.

Department for Children, Schools and Families (DCSF) (2007) Review of Section 58 of the Children Act 2004 (PDF). London. The Stationery Office (TSO).

Department for Education and Skills (DfES) (2007) Care matters: time for change (PDF). London: The Stationery Office (TSO).

Department for Education and Skills (DfES) (2003) Every Child Matters (PDF). London: The Stationery Office (TSO).

Department for Education and Skills (DfES), Department of Health (DH) and Home Office (2003) Keeping children safe: the Government's response to The Victoria Climbie Inquiry report and Joint Chief Inspectors' Report Safeguarding Children (PDF). London: The Stationery Office (TSO).

Department for Education (DfE) (2012) Statutory guidance on the roles and responsibilities of the Director of Children's Services and the Lead Member for Children's Services (PDF). [London]: Department for Education (DfE).

Department of Health, Social Services and Public Safety (DHSSPS) (2003) Co-operating to safeguard children (PDF). Belfast: Department of Health, Social Services and Public Safety (DHSSPS).

HM Government (2013) Working together to safeguard children: a guide to inter-agency working to safeguard and promote the welfare of children (PDF). London: Department for Education (DfE).

Home Office (2005) Guidance on offences against children. Home Office Circular 16/2005. London: Home Office.

Laming, L. (2003) The Victoria Climbie inquiry: report of an inquiry by Lord Laming (PDF). Norwich: TSO.

Lyon, C. et al (2003) Child abuse. 3rd ed. Bristol: Family Law.

NSPCC (2013) 90656 Home alone: your guide to keeping your child safe (PDF, 940KB). London, NSPCC.

Royal College of Nursing (2007) Safeguarding children and young people – every nurse’s responsibility: guidance for nursing staff (PDF). London. RCN.

Scottish Government (2010) National guidance for child protection in Scotland (PDF). [Edinburgh}: Scottish Government.

United Nations (1989) Convention on the Rights of the Child. Geneva: United Nations.

Wallace, I. and Bunting, L. (2007) An examination of local, national and international arrangements for the mandatory reporting of child abuse: the implications for Northern Ireland. Belfast: NSPCC.

Welsh Assembly Government (2006) Safeguarding children: working together under the Children Act 2004 (PDF) Cardiff: Welsh Assembly Government.


Briefings and factsheets
Short introductions to child protection, child abuse and safeguarding topics.

Child protection topics
A summary of what we know about different child abuse and child neglect topics coverng statistics, research, policy, guidance and practice.


Further reading

Search the NSPCC Library Online for more publications on child protection legislation in the UK.


Contact the NPSCC's information service for more information on child protection in the UK


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