Children and the law
Across the UK there are many laws which aim to keep children safe and protect their rights. These laws:
- ensure children's voices are heard
- set out when a child can take part in various activities
- make sure children have access to education
- provide for children having a safe home
- provide support for children who need to leave home
- make sure children are safe if they decide to get a job
- make sure children's personal information is safe.
We've put together an overview of the key legislation in these areas, to help people who work with children.
Definitions of a child
The United Nations Convention on the Rights of the Child (UNCRC) defines a child as everyone under 18 unless, "under the law applicable to the child, majority is attained earlier".
In England a child is defined as anyone who has not yet reached their 18th birthday. Child protection guidance points out that even if a child has reached 16 years of age and is:
- living independently
- in further education
- a member of the armed forces
- in hospital; or
- in custody in the secure estate
they are still legally children and should be given the same protection and entitlements as any other child (Department for Education, 2018a).
In Northern Ireland the The Children (Northern Ireland) Order 1995 defines a 'child' as a person under the age of 18.
In Scotland, a child legally becomes an adult when they turn 16, but statutory guidance which supports the Children and Young People (Scotland) Act 2014, includes all children and young people up to the age of 18. Where concerns are raised about a 16- or 17-year-old, agencies will need to consider which legislation or guidance is appropriate to follow, given the age and situation of the young person at risk.
Paragraph 21 of the National guidance for child protection in Scotland explains how professionals should act to protect young people from harm in different circumstances (Scottish Government, 2014).
Section 3 of the Social Services and Well-being (Wales) Act 2014 states that a child is a person who is aged under 18.
Children's rights are protected by law internationally and within the UK.
Some rights are recognised at international level through agreements between governments. The UK has signed up to the United Nations Convention on the Rights of the Child (UNCRC) and the European Convention on Human Rights (ECHR) (PDF), both of which set out a number of children's rights.
UN Convention on the Rights of the Child
The UN Convention on the Rights of the Child (UNCRC) sets out the rights of every child in the world to:
- fulfil their potential.
It sets standards for education, health care, social services and penal laws, and establishes the right of children to have a say in decisions that affect them .
The UK signed this convention in 1990. However the Rights of Children and Young Persons (Wales) Measure 2011 made Wales the first, and so far only, country in the UK to make the UNCRC part of its domestic law. This means that Welsh Ministers have a duty to include the UNCRC in all policymaking.
European Convention on Human Rights (ECHR)
The 1950 European Convention on Human Rights (ECHR) (PDF) is an international treaty which gives a set of rights to both adults and children. The Human Rights Act 1998 made most of the ECHR UK law. This means that children can complain to a UK court if their rights have been broken, and if the claim is rejected, take their claim to the European Court of Human Rights.
Rights set out in the convention include:
- the right to life
- the right to be kept safe from torture and cruel treatment
- freedom from slavery
- the right to a fair trial
- the right to respect for private and family life
- the right to an education.
Children's rights in the UK
The Human Rights Act 1998
The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. It incorporates the rights set out in the European Convention on Human Rights (ECHR) (PDF) into domestic British law. The Human Rights Act came into force in the UK in October 2000.
The Equality Act 2010
The Equality Act 2010 protects children, young people and adults against discrimination, harassment and victimisation in relation to housing, education, clubs, the provision of services and work. The Act applies to England, Scotland and Wales.
Northern Ireland has a number of different anti-discrimination laws relating to the provision of services.
Rights of Children and Young Persons (Wales) Measure 2011
In 2011 the Rights of Children and Young Persons (Wales) Measure 2011 made Wales the first, and so far only, country in the UK to make the United Nations Convention on the Rights of the Child part of its domestic law. This ensures that children's rights are included in all policy making in Wales.
Each of the four nations in the UK has a Children's Commissioner who is responsible for promoting and protecting the rights and best interests of children and young people:
- England: The Children's Commissioner for England (Children's Commissioner for England, 2018)
- Northern Ireland: Commissioner for Children and Young People for Northern Ireland (Northern Ireland Commissioner for Children and Young People (NICCY), 2018)
- Scotland: Children and Young People's Commissioner (Children and Young People's Commissioner Scotland, 2018)
- Wales: Children's Commissioner for Wales (Children's Commissioner for Wales, 2018).
Gillick competency and Fraser guidelines
Most child protection guidance emphasises the importance of listening to the wishes of the child.
The Gillick competency and Fraser guidelines help to balance children's rights and wishes with the responsibility to keep children safe from harm.
They refer to a legal case in the 1980's which looked specifically at whether doctors should be able to give contraceptive advice or treatment to under 16-year-old girls without parental consent.
Since then, the guidelines have been used more widely to help assess whether a child has the maturity to make their own decisions and to understand the implications of those decisions.
School leaving age varies across the UK.
In England pupils can leave school on the last Friday in June if they'll be 16 by the end of the summer holidays.
Young people must then do one of the following until they're 18:
- stay in full-time education, for example at a college
- start an apprenticeship or traineeship
- spend 20 hours or more a week working or volunteering, while in part-time education or training
In Northern Ireland if a pupil turns 16 during the school year (between 1 September and 1 July) they can leave school after 30 June of that year.
If a pupil turns 16 between 2 July and 31 August they can't leave school until 30 June the following year (Gov.uk, 2018a).
In Scotland, if a pupil turns 16 between 1 March and 30 September they can leave school after 31 May of that year.
If a pupil turns 16 between 1 October and the end of February they can leave at the start of the Christmas holidays in that school year (Gov.uk, 2018a).
In Wales pupils can leave school on the last Friday in June, as long as they'll be 16 by the end of that school year's summer holidays (Gov.uk, 2018a).
As young people get older they may start to think about moving out and living independently, for various reasons. They may:
- want to live with friends or partners
- have their own child to care for
- want to avoid family conflict
- no longer feel safe at home.
In some cases parents may ask their children to leave the home, for example for financial reasons or a breakdown in relationships.
- Parents of under-16-year-olds are legally responsible for making sure their child has somewhere safe to stay.
- Once a young person reaches 16 they can leave home, or their parents can ask them to move out. However parents are still legally responsible for their child until they reach 18.
Support for children who need to leave home
If a child under 16 is made to leave or doesn't feel safe in their home, local children's services can help.
Children's services should provide a family with support so that the child doesn't have to leave home. But if it's in the child's best interests to live somewhere else, they can arrange for them to live with another family member or friend, or provide emergency accommodation, such as a foster placement.
A child or young person aged 16 or 17 should contact their local children's services team if they are considering leaving home. Children's services should discuss the matter with them to see what support they need. Children's services may be able to work with the family to enable the young person to stay at home, or arrange alternative accommodation such as with another family member or friend. But they should also respect the child's wishes about where they want to live.
A child or young person may be considered homeless when their home is not suitable or they do not have the right to stay where they live. For example they may be living somewhere that is dangerous or overcrowded.
A homeless child is entitled to accommodation from their local authority children's services, regardless of their nationality or immigration status.
In England, statutory guidance for supporting homeless 16- and 17-year-olds is set out in Prevention of homelessness and provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation (PDF) (Ministry of Housing, Communities and Local Government, 2018).
In Northern Ireland, Health and Social Care Trusts have a duty under The Children (Northern Ireland) Order 1995 to provide services for persons under 18 who are children in need (Housing Executive, 2017).
In Scotland, chapter 6 of the Code of Guidance on Homelessness (PDF) (Scottish Government, 2005) refers to 16- and 17-year-olds as having priority need for housing.
In Wales statutory guidance for homeless 16- and 17-year-olds is Provision of accommodation for 16 and 17 year old young people who may be homeless (PDF) (Welsh Government, 2010).
If a child or young person wants to live independently it's important to consider their ability to support themselves financially. They may not be in a position to put down a deposit on a property, pay rent and bills, or buy food.
In England, Northern Ireland and Wales, young people are not legally entitled to have a tenancy agreement to rent a property in their own name until they are 18. In Scotland this is possible from 16.
Children who are aged 16 or 17 and who have little or no income may be eligible to claim Income Support (IS) or jobseeker's allowance (JSA).
Universal Credit will replace six benefits across the UK, including Income Support and Jobseeker's Allowance. 16- and 17-year-olds will only be able to claim Universal Credit if they:
- can't work due to illness or disability
- are caring for a severely disabled person
- are responsible for a child, or expecting a baby in the next 11 weeks
- don't have parents and are not under local authority care (Citizens Advice, 2018).
The local Citizen's Advice Bureau can help work out what support a child is entitled to. More information is also available from Jobcentre Plus in England, Scotland and Wales or the Jobs & Benefits office in Northern Ireland.
If a child or young person needs confidential help and advice direct them to Childline. Calls to 0800 1111 are free and children can also contact Childline online or read about homelessness on the Childline website. You can also download or order Childline posters and wallet cards.
In all nations of the UK, children leaving care at 18 are entitled to support from their local authority until they are at least 21.
Young people who have their own children are entitled to support. The local children's services or the Citizen's Advice Bureau can advise about what help is available.
The youngest age a child can work part-time is 13, except for children involved in specific areas such as television, theatre or modelling (Gov.uk, 2018b). Children working in these areas will need a performance licence.
Children can only start working full-time once they've reached the minimum school leaving age – after this they can work up to 40 hours per week (Gov.uk, 2018b).
Young people can work as apprentices from the age of 16. However, there is also a Young Apprenticeship scheme for 14- to 16-year-olds. Apprentices are paid a salary for their work and also pay tax and national insurance.
In England, a young person must be in part-time education or training until they're 18 (Gov.uk, 2018a).
Rules about child employment
To help keep children safe and protect their rights, there are laws governing what kinds of work they can do, how they are paid, and when they can work. An employer can be prosecuted for breaking these laws.
In most cases, businesses intending to employ school-aged children need to apply to their local authority for a child employment permit before the child can start work.
Children are only allowed to work:
- at certain hours of the day. For example they can't work during school hours, early in the morning or late at night. They also need to have regular breaks.
- in places that are considered safe for children. For example children can't work in a factory or industrial site, or in most jobs in a pub or betting shop.
- if it doesn't affect their health, wellbeing and education.
The local authority won't allow a child to do any job they think may be harmful to them.
Local bylaws may also restrict the kind of work children can do (Gov.uk, 2018b).
Keeping children safe at work
Employers have a responsibility to keep all the children they work with safe. This includes providing a safe environment and making sure they are doing a job which is suitable for their physical and psychological capabilities.
Employers must carry out a risk assessment before a child starts work, and take measures to reduce any risks identified. In most cases, if the child is below school leaving age, the employer must inform the child's parents about the results of the risk assessment.
The Health and Safety Executive (HSE) provides guidance on health and safety considerations for young people in the workplace (HSE, 2018a).
Young people who work with other children
Although there is no law in the UK saying how old a babysitter should be, we recommend they should be at least 16.
Child care establishments like nurseries, crèches, and out-of-school clubs are heavily regulated to ensure that children in their care are safe.
In general, only people aged 18 or over should be included as adults when calculating adult to child ratios.
If over-16-year-olds are doing work that is classed as "regulated activity" they need to have a criminal records check.
Work experience placements
The Department for Education (DfE) has published non-statutory advice to help schools, colleges and other training providers in England deliver work experience, including information on health and safety and accountability (DfE, 2015).
The HSE have published information on their website for employers who have young people doing work experience with them (HSE, 2018b).
Age of consent
In each UK nation, the age of consent (the legal age when people can engage in sexual activity) is 16-years-old. This is the same regardless of the person's gender identity, sexual identity and whether the sexual activity is between people of the same or different gender.
The law is there to protect children from abuse or exploitation, rather than to prosecute under-16s who participate in mutually consenting sexual activity. Underage sexual activity should always be seen as a possible indicator of child sexual exploitation.
Children aged under 13
The law says anyone under the age of 13 can never legally give consent. (Sexual Offences Act 2003; Sexual Offences (Northern Ireland) Order 2008; Sexual Offences (Scotland) Act 2009; Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005).
Any sexual activity with a child under 13 should always result in a child protection referral.
Young people aged 16 to 18
The law gives extra protection to young people who are over the age of consent but under 18. It is illegal:
- to take, show or distribute indecent photographs of a child (this is often called sexting)
- to pay for or arrange sexual services of a child
- for a person in a position of trust (for example teachers or care workers) to engage in sexual activity with anyone under the age of 18 who is in the care of their organisation.
Age of criminal responsibility
The age of criminal responsibility in England, Wales and Northern Ireland is 10-years-old (Crime and Disorder Act 1998, Criminal Justice (Northern Ireland) Order 1998). The age of criminal responsibility in Scotland is 8-years-old.
England and Wales
In England and Wales children between 10 and 17 can be arrested and taken to court if they commit a crime. They are treated differently from adults:
- the case is dealt with by youth courts
- they are given different sentences
- if given a custodial sentence, they will be sent to special secure centres for young people, not adult prisons (Crime and Disorder Act 1998).
In England and Wales, children under 10 cannot be charged with committing a criminal offence. However, they can be given a:
- local child curfew
- child safety order.
Children under 10 who break the law regularly can sometimes be taken into care, or their parents could be held responsible (Crime and Disorder Act 1998).
Young people aged 18-25 are treated as an adult by the law in England and Wales. However, if they're sent to prison, they'll be sent to a special centre for 18- to 25-year-olds, not an adult prison (Crime and Disorder Act 1998).
In Scotland, the age of criminal responsibility is 8, but the minimum age for criminal prosecution is 12-years-old (Criminal Justice and Licensing (Scotland) Act 2010). This means if a child aged between 8 and 11 breaks the law, their case can't be heard in a criminal court. Instead their behaviour will be addressed by a Children's Hearing.
Children aged 12 to 16 can be taken to court but only for serious crimes. Most offences committed by children of this age will be dealt with by early intervention (like a warning or help from a support organisation) or the children's hearings system (Criminal Procedure (Scotland) Act 1995).
The Scottish Parliament has published the Age of Criminal Responsibility (Scotland) Bill 2018, which will raise the age of criminal responsibility to 12.
The General Data Protection Regulation (GDPR)
The General Data Protection Regulation (GDPR) came in to force on 25th May 2018. It is an EU law that sets out guidelines for the collection and processing of personal information and aims to give individuals more rights over how their data is used. GDPR is incorporated into the UK's Data Protection Act 2018.
Why is GDPR important and what impact does it have on children?
The GDPR explicitly states that children's personal data merits specific protection. It also introduces new requirements for the online processing of a child's personal data.
Children have the same rights as adults over their personal data. These include the right to:
- be provided with a transparent and clear privacy notice which explains how their data will be processed
- be given a copy of their personal data
- have inaccurate personal data rectified and incomplete data completed
- exercise the right to have personal data erased if they wish.
A child may exercise these rights on their own behalf as long as they are competent to do so. In Scotland, a person aged 12 or over is presumed to be of sufficient age and maturity to be able to exercise their data protection rights. In England and Wales and Northern Ireland, competence is assessed depending upon the level of understanding of the child.
Even if a child is too young to understand the implications of their rights, they are still their rights, rather than anyone else's such as a parent or guardian (Information Commissioners Office, 2018).
GDPR and online data
The provisions of GDPR help children to keep themselves safe online by giving them more control over the information they share.
GDPR gives children the 'right to erasure'. This means they can request online platforms to remove their personal data, including pictures, text or status updates.
If a child has shared any material online that they no longer wish anyone to see, they have a legal right to get this material removed, even if the content was posted by someone else.
Apps, sites and games must make it clear to users how and why they are using data.
Under this law, children aged 12 or under need to seek parental consent to open a social media account, because they need to be 13 years or older to meaningfully understand how their data might be used (O2/NSPCC Net Aware, 2018).
GDPR and child protection
GDPR emphasises the importance of asking children for consent before sharing personal information.
If a child is mature enough you should give them the opportunity to decide whether they agree to their confidential information being shared. If a child doesn't have the capacity to make their own decisions, you should ask their parent or carer (unless this would put the child at risk).
However, if you have a child protection concern, you must share information with the relevant agencies, even if you haven't been given consent. GDPR does not affect this principle.
- Child Protection Awareness Course (Level 1)
- Child Protection Advanced One Day Course (Level 2)
- Designated Safeguarding Lead Course (Level 3)
- Designated Safeguarding Lead Update Course
- Designated Safeguarding Lead Bundle
- Child Protection Awareness Online Course (Level 1)
- Child Protection Advanced Online Course (Level 2)
- Child Protection in Sport Online Course
- Information Sharing Online Course
- Safe Working Practice Online Course
- Safeguarding Vulnerable Adults
- Safer Recruitment
- Safeguarding Education Services