The Protection of Children (Scotland) Act 2003 Determination Regulations 2004

Regulation 3(1)

SCHEDULE DETERMINATIONS UNDER SECTION 5 OF REFERENCES UNDER SECTIONS 2(1) AND 4(1) OF THE ACT

Information to be submitted with a reference

1.  Where a reference is made by a referring body in terms of sections 2(1) and 4(1) of the Act, the following information shall, if known or available to the referring body, be submitted with that reference–

(a) identity details relating to the individual, including the individual’s full name and any other names by which the individual is, or has been known; any address or addresses at which the individual is or has been resident in the 10 years preceding the date of the reference; the individual’s date and place of birth and National Insurance number;

(b) information as to any checks carried out by the referring body to verify the individual’s identity;

(c) details as to the child care position held by the individual;

(d) full details of the circumstances in which the referring body considers that the individual harmed a child or placed a child at risk of harm;

(e) where the reference is made in terms of section 2(1) of the Act, details of any circumstance referred to in section 2(3) or (4) of the Act;

(f) details of any investigation carried out by the referring body, any documentation relevant to that investigation and the conclusions of such investigation;

(g) information as to any relevant disciplinary policies or practices or conditions of employment of the referring body;

(h) details of all relevant action taken by the referring body prior to making the reference;

(i) information as to the involvement of any other organisation or body in matters relating to the reference; and

(j) details of any associated disciplinary appeal or legal proceedings.

Acknowledgement and recording of a reference

2.—(1) Where the Scottish Ministers have received a reference from the referring body in terms of sections 2(1) and 4(1) of the Act, they shall immediately send an acknowledgement of its receipt to that referring body and at the same time notify the individual of receipt of that reference and the name of the referring body.

(2) The Scottish Ministers shall maintain a record of all references made to them under section 2(1) and 4(1) of the Act, and shall enter particulars of a reference and the date of its receipt in that record.

(3) Where insufficient information has been sent with a reference to enable the Scottish Ministers to proceed further with their determination, they may send a notice to the referring body, inviting that referring body to submit within fourteen days of the date of that notice such further information as the Scottish Ministers think fit.

Preliminary matters

3.—(1) Where the Scottish Ministers decline to consider further any reference made under section 2(1) or 4(1) of the Act the Scottish Ministers shall notify the referring body and the individual.

(2) Where the Scottish Ministers are satisfied from the information submitted with the reference that it may be appropriate for the name of the individual to be included in the List, they shall enter the name of the individual in the List marking that entry as provisional.

(3) Where a provisional entry is made by the Scottish Ministers under sub-paragraph (2), they shall immediately provide the individual with notice of and the date of that entry and at the same time notify the referring body of that entry and its date.

(4) Where the Scottish Ministers are aware that as at the time a provisional entry is made under sub-paragraph (2), the individual is working for any organisation in a child care position, they shall give notice of the entry to that organisation and such other persons as the Scottish Ministers consider appropriate.

Notification and response to the reference

4.—(1) Where the Scottish Ministers make a provisional entry under paragraph 3(2), they shall give to the individual, with the notice of that entry, a copy of the reference and any information provided by the referring body in support of the reference, together with a notice inviting the individual to submit observations to the Scottish Ministers within 21 days of the date of that notice being received, or deemed to have been received in accordance with regulation 5.

(2) Any response given to the Scottish Ministers by the individual shall–

(a) acknowledge that the individual has received a copy of the reference;

(b) indicate whether or not the individual opposes the reference and if they do, give reasons why they oppose the reference;

(c) provide any observations on the reference and the supporting information; and

(d) submit any further information which the individual wishes to be taken into account by the Scottish Ministers in making their determination.

Observations by the referring body

5.  The Scottish Ministers shall give to the referring body a copy of any observations made by the individual, together with a notice inviting the referring body to provide within 21 days of the date of that notice and those observations being received, or deemed to have been received in accordance with regulation 5 any observations and any further supporting information that the referring body may wish to make on those observations.

Further observations or information to be sent to the Scottish Ministers

6.  Having invited any observations and further supporting information under paragraph 5 the Scottish Ministers may by notice invite the referring body, the individual or such other persons as the Scottish Ministers consider appropriate to give to the Scottish Ministers further observations or information dealing with any matter relating to the reference within such time and in such manner as may be specified by the Scottish Ministers in that notice.

Determination

7.  The Scottish Ministers may proceed to a determination under section 5 of the Act of a reference under section 2(1) or 4(1) of the Act taking into account such observations and information as have been sent to them within the relevant time limits if it appears to them that they have sufficient material to enable them to make a determination on the reference.

Recording and notification of the determination

8.—(1) Any determination under section 5 of the Act shall be recorded without delay in a document dated and signed on behalf of the Scottish Ministers.

(2) The document referred to in sub-paragraph (1) shall state the reasons for the determination.

(3) The Scottish Ministers shall, as soon as reasonably practicable after such determination, give to the individual–

(a) a copy of the document referred to in sub-paragraph (1);

(b) notice of any entry, modified entry or removal of any entry relating to the individual in the List; and

(c) information as to any right of appeal which the individual may have against the Scottish Ministers' determination.

(4) At the same time as giving notice to any individual in accordance with sub-paragraph (3) the Scottish Ministers shall give notice of such determination to the referring body, any known organisation for which the individual is working in a child care position, any other persons notified in accordance with sub-paragraph (4) of paragraph 3 and such other persons as the Scottish Ministers then consider appropriate.