How does the law define “harm”?

Duty of care under Children (Scotland) Act 1995

Section 5 of the Children (Scotland) Act 1995 states that an adult (16 years or over) who has care or control of a child under the age of 16 has the responsibility to:

“do what is reasonable in all circumstances to safeguard the child’s health, development and welfare”.

Organisations can never fully guarantee the safety and well-being of all children, young people and workers.

The courts recognise that some activities do carry with them an element of risk and that no matter how well individuals undertake their duties, accidents will sometimes occur. However, under their duty of care, those who work with children and young people are required to take all reasonable steps to protect them from foreseeable risks of personal injury or harm - psychological as well as physical.

This means that workers are expected to take appropriate action if they are made aware, or become aware of a difficulty either because it is reported to them or particular circumstances and events indicate that a problem could be developing.

The Protection of Children (Scotland) Act 2003

Section 18 of the Act states that:

“harm includes harm which is not physical harm”.

This means that “harm” would not only cover the deliberate infliction of physical or mental harm but also where harm resulted, or might have resulted, from a degree of carelessness or neglect which amounted to misconduct.