Who is a child?

A child can be defined differently in different legal contexts:

In terms of Part 1 of the Children (Scotland) Act 1995 (which deals with matters including parental rights and responsibilities), a child is generally defined as someone under the age of 18. In terms of Chapter 1 of Part 2 (which deals with support for children and families and includes local authorities duties in respect of looked after children and children “in need”), a child is also defined as someone under the age of 18. In terms of Chapters 2 and 3 of Part 2 (which dealt with matters including children’s hearings and child protection orders), a child means someone who has not attained the age of sixteen years; a child over the age of sixteen years who has not attained the age of eighteen years and in respect of whom a Compulsory Supervision Order is in force; or a child whose case has been referred to a children’s hearing by virtue of section 33 of this Act (Effect of orders etc. made in others parts of the United Kingdom). However, Chapters 2 and 3 of Part 2 have been largely repealed by the Children’ s Hearings (Scotland) Act 2011, except in relation to certain ongoing cases which are still proceeding under the 1995 Act.

The Children’s Hearings (Scotland) Act 2011 now contains the current provisions relating to the operation of the Children’s Hearings system and child protection orders. Section 199 states that, for the purposes of this Act, a child means a person under 16 years of age. However, this section also provides some exceptions to that general rule. Subsection (2) provides that for the purposes of referrals under section 67(2)(o) (failure to attend school), references in the Act to a child include references to a person who is school age. “School age” has the meaning given in section 31 of the Education (Scotland) Act 1980. Additionally, children who turn 16 during the period between when they are referred to the Reporter and a decision being taken in respect of the referral are also regarded as “children” under the Act. Children who are subject to compulsory measures of supervision under the Act on or after their 16th birthday are also treated as children until they reach the age of 18, or the order is terminated (whichever event occurs first). Where a sheriff remits a case to the Principal Reporter under section 49(7)(b) of the Criminal Procedure (Scotland) Act 1995, then the person is treated as a child until the referral is discharged, any compulsory supervision order made is terminated, or the child turns 18.

The United Nations Convention on the Rights of the Child applies to anyone under the age of 18. However, Article 1 states that this is the case unless majority is attained earlier under the law applicable to the child.

The meaning of a child is extended to cover any person under the age of 18 in cases concerning: Human Trafficking; sexual abuse while in a position of trust (Sexual Offences (Scotland) Act 2009) and the sexual exploitation of children under the age of 18 through prostitution or pornography (Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005)

When the Children and Young People (Scotland) Act 2014 comes into force, a “child” will be defined for the purposes of all Parts of that Act, as someone who has not attained the age of 18.

The individual young person’s circumstances and age will dictate what legal measures can be applied. For example, the Adult Support and Protection (Scotland) Act 2007 can be applied to over-16s where the criteria are met. This further heightens the need for local areas to establish very clear links between their Child and Adult Protection Committees and to put clear guidelines in place for the transition from child to adult services. Young people aged between 16 and 18 are potentially vulnerable to falling “between the gaps” and local services must ensure that processes are in place to enable staff to offer ongoing support and protection as needed, via continuous single planning for the young person. The GIRFEC framework and provision of the Named Person service for 16-18 year olds will be key to ensuring that wellbeing needs can be identified and addressed.

Where a young person between the age of 16 and 18 requires protection, services will need to consider which legislation or policy, if any, can be applied. This will depend on the young person’s individual circumstances as well as on the particular legislation or policy framework. On commencement of the Children and Young People (Scotland) Act 2014, similar to child protection interventions, all adult protection interventions for 16 and 17 year olds will be managed through the statutory single Child’s Plan. Special consideration will need to be given to the issue of consent and whether an intervention can be undertaken where a young person has withheld their consent. The priority is to ensure that a vulnerable young person who is, or may be, at risk of significant harm is offered support and protection.