Catching all helpers

The Protection of Children (Scotland) Act 2003 (“the Act”) will come into force in late 2004 and whilst it is principally aimed at regulating who can be employed to work with children, the effect of the Act goes much further and affects almost all regulated activity with children. Obligations are imposed upon all bodies and not just employers, with all organisations, whether incorporated or unincorporated, included. When the Protection of Children (Scotland) Bill was going through Parliament, sportscotland made a number of representations and requested that specific provision be made for sport. The request was unsuccessful. The Act will impact upon sport in Scotland and the effect it may have could be considerable.

Working with children (whether paid or otherwise) is widely defined in the Act, with the following catch-all: “supervising, children whilst participating in any other organised activity”. As such, it will cover the organisation and supervision of child sporting activities, from commercial coaching sessions run for profit, to voluntary assistance given at primary school football matches. The basic principle underpinning the Act is that the organisation is obliged to make a referral to Scottish Ministers if anyone either harms a child or puts a child at risk of harm and is dismissed or moved away from access to children as a consequence. There are further similar circumstances where referral is required.  Failure to refer is an offence and is punishable by imprisonment, a fine, or both.

“Harm” is defined in the Act only to the extent that it is not simply restricted to physical harm. Whilst the definition of harm may develop in time, perhaps with parallels drawn with cases in the context of social work, further guidance from the Scottish Executive would be beneficial if possible. Without this, there is a danger that organisations and individuals within the organisations will adopt their own interpretation of “harm” and “risk of harm”.

They’ve got a little List

A list will be kept of individuals who are considered to be unsuitable to work with children (“the List”) and anyone properly referred shall be added, either provisionally or permanently. Persons on the List are disqualified, and organisations that knowingly (i) employ such a disqualified person to work in a child care position, or (ii) procure work in a child care position for a disqualified person, or (iii) fail to remove a disqualified person from a child care position, will be guilty of an offence.

All sporting associations and organisations will need to consider carefully the introduction of a child protection policy. Such a policy should be wide ranging. Not only must it focus on the prevention of “harm”, initial checks on new “workers” (including volunteers) should be conducted. Principally this will involve deference to the List by making a disclosure application to Disclosure Scotland under Part V of the Police Act 1997. There are three levels of disclosure: basic, standard and enhanced. A basic check will not suffice and organisations will require standard or enhanced disclosures.

The policy should have a procedure whereby all members of the organisation are made aware of the circumstances in which it would be appropriate and necessary to make a referral. Sharing concerns with parents and guardians, and responding to disclosures, will be necessary. Despite the initial effort required to do so, the introduction of a policy and applying it in practice should help create a safe sporting environment and assist the sporting body to comply with the requirements of the legislation.

The burdens and the benefits

The Act’s intention is unquestionable, and the sensitive issues it sets out to deal with are of critical importance. Sports bodies will have to be aware of the onerous system of regulation it introduces, and in particular those sporting bodies that are unincorporated associations in which members and individuals will be potentially liable under the Act. The management of sporting organisations, at all levels, will need to be developed. Whilst there is little money in sport, at all levels, the associated costs will have to be provided for.

At a time when the Scottish Executive is actively encouraging exercise, especially for children, it is sincerely hoped the Act is embraced and creates a safe sporting environment for all, which in turn will hopefully lead to more children becoming and remaining active.

Bruce A Caldow and Victoria Taylor, Sports Practice Group, Harper Macleod