Definition of a child

The legal definition of a child is a person under the age of 18. This is relevant for safeguarding as it means that babies, children and young people up to their 18th birthday are covered by child protection laws and we have particular safeguarding responsibilities towards them. 

Children are deemed to be vulnerable simply because of their age. When a safeguarding concern involves a child, their safety and wellbeing is paramount. This means that any actions taken and decisions made keep the child’s safety and wellbeing as the top priority. It also means that faith and community organisations have a responsibility to pass on any safeguarding concerns involving a child to safeguarding professionals (e.g. Police and Social Workers) so they can assess the concern and take any actions necessary to safeguard the child. 

The United Nations Convention on the Rights of the Child (UNCRC) underpins the approach to child safeguarding in the UK. It is a framework for ensuring children’s rights are respected, protected and fulfilled.

Key rights for safeguarding include:

• article 3: The best interests of the child must be a primary consideration in all actions concerning them.
• article 12: Children have the right to express their views freely in all matters affecting them.
• article 19: Children must be protected from all forms of physical or mental violence, injury, abuse, neglect, or exploitation.

In Scotland, the UNCRC (Incorporation) (Scotland) Act 2024 means that these rights and all others in the UNCRC are embedded into law and public authorities have a legal duty to uphold them.

Keeping the child at the centre of all safeguarding processes, actions and decisions is essential. While you don’t need to get a child’s consent to report a safeguarding concern to Police or Social Workers; it is important that their voice is heard and their rights are upheld. 

There are some laws that are relevant to safeguarding children at particular ages: 

Age of Criminal Responsibility

In England, Wales and Northern Ireland the age of criminal responsibility is 10 years old. In Scotland it is 12 years old. Children below the age of criminal responsibility cannot be arrested, charged or convicted. Children under the age of criminal responsibility who are involved in criminal activity are treated as vulnerable. Their actions may indicate that they are experiencing abuse, exploitation, neglect, trauma or other adversity. Professionals must respond with child protection measures. 

Children aged 10-17 – or 12 in Scotland - can be arrested, charged and prosecuted for criminal offences. The youth justice system is different from the adult system, with different courts and safeguarding and child protection measures alongside legal sanctions.

Mental (in)Capacity

Mental capacity or incapacity is a topic more usually associated with safeguarding adults. However, Mental (in)Capacity legislation in all 4 UK nations applies to anyone aged 16 or over.  

Young people aged 16 or over are presumed to be able to make their own decisions, unless it is proven otherwise. Parents can make decisions on behalf of their children until they are 18, however, if a 16- or 17-year-old has the capacity to make their own decision, a parent generally can’t override their choice. Tell your Safeguarding Lead what you know about a child’s wishes and decisions regarding any safeguarding concern.  

It will never be your responsibility to assess a child’s mental capacity as part of your role for your organisation. However, if you have a safeguarding concern about a 16 or 17-year-old and you wonder if they may lack the capacity to make decisions about their safety and wellbeing, it is important to pass this information on to your Safeguarding Lead so the person can get the necessary support.   

Sexual Relationships 

The age of consent, when the law recognises that someone is able to consent to sex, is 16 years old. It is illegal for anyone to engage in sexual activity with a child under the age of 16, even if it’s consensual.  

Under 13's: The law makes it clear that a child under 13 years is not capable of consenting to sexual activity. Any sexual activity involving a child under 13 is considered statutory rape and is a serious criminal offence.  

13-15 year olds: Sexual activity with a child age 13-15 is illegal, but safeguarding professionals are likely to distinguish between exploitative or abusive sexual activity and consensual relationships between peers. For example, police may record a crime but not prosecute consensual activity between 14- and 15-year-olds. Social Workers may become involved if there are safeguarding or welfare concerns for either child.  

16-18 year olds: While a young person can legally have sex from the age of 16, they are also still defined as a child under law. It is illegal for people who hold a Position of Trust to have a sexual relationship with a child in their care.

If you have any safeguarding concerns regarding a child or young person’s sexual relationships, talk to your Safeguarding Lead. Safeguarding professionals will consider if there is a power imbalance (e.g. age gap, additional vulnerability), consent and capacity – was the child or young person pressured or manipulated or unable to give informed consent, was grooming involved and if there is risk of exploitation.

A young person who is experiencing sexual exploitation may not see themselves as a victim of abuse. Some young people may have cognitive or emotional age lower than their numerical age. An assessment of Gillick competency, or similar assessment, may need to be applied in these situations. 

Legal age of marriage

The age at which a young person can legally marry varies across the four nations of the UK. For England and Wales, the minimum age is now 18 and it is a criminal offence to arrange for a child to marry (following the introduction of the Marriage and Civil Partnership (Minimum Age) Act 2022). In Scotland, a young person can marry from the age of 16 without parental consent. In Northern Ireland, 16 and 17-year-olds need parental consent or a court order to be able to marry.