In Scotland, the generally accepted definition of a 'child' is anyone who has not yet turned 18 years old. This is defined by legislation (section 97(1) of the Children and Young People (Scotland) Act 2014). 

However, this definition is complicated by the fact that, in many situations, before the age of 18, children can, legally, do many things. Here is a summary of some important age milestones in Scotland:

Committing a crime

The age of criminal responsibility is 12 (Age of Criminal Responsibility (Scotland) Act 2019). On a global perspective, that is not unusual, with some countries having the age of criminal responsibility as low as 7 and others as high as 16.

Driving a car

In the UK, a person can start driving a car once they turn 17 years old. However, the rental of cars is determined by individual car hire companies/insurance providers, with many refusing to lease a car to a person under the age of 25.

Adoption

The Adoption and Children (Scotland) Act 2007 applies here. A number of different ages are taken into account when it comes to adoption. A person has to be over the age of 21 to adopt a child and the child themselves needs to be under the age of 18. However, unless the court is satisfied that the child is incapable of consenting to the order, no adoption order can be made in respect of a child who is aged 12 or over unless the child consents.

Financial support from parents

If a child has a parent with whom they don't live, that parent requires to support their child financially whilst the child is under 16 years old, or under 20 years old and studying full time. In Scotland, a child who has attained the age of 12 years may apply for a maintenance calculation in respect of their parent. The legislation governing this area is the Child Support Act 1991.

Getting married

The Marriage (Scotland) Act 1977 provides that the minimum age for a person to get married is 16.

Working

The Children and Young Persons (Scotland) Act 1937 provides that no child under the age of 13 shall be employed (some exemptions apply such as taking part in sport, modelling, films and television).

Buying alcohol & cigarettes

At ages 16 and 17 a person can purchase beer, wine or cider if it is served with a meal in an area used only for eating meals. Apart from this, it is illegal for under 18's to buy or drink alcohol. In relation to smoking, it is an offence to sell tobacco or nicotine vapour products ('vapes') to a person under 18.

Making a will

The Age of Legal Capacity (Scotland) Act 1991 provides that the age of legal capacity in Scotland is 16 "a person of or over the age of 16 years shall have legal capacity to enter into any transaction". However, that same legislation provides that "a person of or over the age of 12 years shall have testamentary capacity, including legal capacity to exercise by testamentary writing any power of appointment."

Court and the views of children

As a family lawyer, the ages of the children involved in the work that I do often has a significant bearing on a case. In disputes regarding a child's relationship with their parents (for example how much contact they have with a parent in a situation of parental separation), court actions only relate to children under the age of 16 years. Increasingly, and rightly, the views of children are taken into account when decisions are being made by a court about them. Whilst the legislation (section 6 of the Children (Scotland) Act 1995) still provides that "a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view", section 1(2) of the Children (Scotland) Act 2020 (not yet applied) repeals those words and replaces them with a presumption: "in considering whether the child is capable of forming a view, the person is to start with the presumption that the child is." In my experience, the impact of this impending change has been significant, with courts across Scotland already applying this presumption in practice and insisting that all children, irrespective of their ages, are given an opportunity to express a view. The weight to be attached to that view will depend on many factors, including the age of the child, their maturity and any neurodivergence or disability they may have.

The aforementioned information paints a confusing picture, and it is understandably tricky for young people, and their parents, to really know when to define them as no longer being 'children'. What is clear is that the law, piecemeal in its evolution, actually reflects the biological reality - that the transition from childhood to adulthood is not defined by a certain age or point in time but is, rather, a process spanning years. The law will, undoubtedly, in many of these areas, continue to evolve and, as lawyers, it is our job to keep up to date with those changes.

Contributor

Sarah Lilley

Partner