Children and Families Bill

Session 2012 - 13
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Children and Families Bill

Children and Families Bill
Part 2 — Family justice
13

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Care, supervision and other family proceedings: time limits and timetables
(1)
The Children Act 1989 is amended as follows.
(2)
In section 32(1)(a) (timetable for dealing with application for care or
supervision order) for “disposing of the application without delay; and”
substitute “disposing of the application—
5
(i)
without delay, and
(ii)
in any event within twenty-six weeks beginning with
the day on which the application was issued; and”.
(3)
In section 32 (care and supervision orders) after subsection (2) insert—
“(3)
A court, when drawing up a timetable under subsection (1)(a), must in
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particular have regard to—
(a)
the impact which the timetable would have on the welfare of the
child to whom the application relates; and
(b)
the impact which the timetable would have on the conduct of
the proceedings.
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(4)
A court, when revising a timetable drawn up under subsection (1)(a) or
when making any decision which may give rise to a need to revise such
a timetable (which does not include a decision under subsection (5)),
must in particular have regard to—
(a)
the impact which any revision would have on the welfare of the
20
child to whom the application relates; and
(b)
the impact which any revision would have on the duration and
conduct of the proceedings.
(5)
A court in which an application under this Part is proceeding may
extend the period that is for the time being allowed under subsection
25
(1)(a)(ii) in the case of the application, but may do so only if the court
considers that the extension is necessary to enable the court to resolve
the proceedings justly.
(6)
When deciding whether to grant an extension under subsection (5), a
court must in particular have regard to—
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(a)
the impact which any ensuing timetable revision would have on
the welfare of the child to whom the application relates, and
(b)
the impact which any ensuing timetable revision would have on
the duration and conduct of the proceedings;

and here “ensuing timetable revision” means any revision, of the
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timetable under subsection (1)(a) for the proceedings, which the court
considers may ensue from the extension.
(7)
When deciding whether to grant an extension under subsection (5), a
court is to take account of the following guidance: extensions are not to
be granted routinely and are to be seen as requiring specific
40
justification.
(8)
Each separate extension under subsection (5) is to end no more than
eight weeks after the later of—
(a)
the end of the period being extended; and
(b)
the end of the day on which the extension is granted.
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Children and Families Bill
Part 2 — Family justice
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(9)
The Lord Chancellor may by regulations amend subsection (1)(a)(ii), or
the opening words of subsection (8), for the purpose of varying the
period for the time being specified in that provision.
(10)
Rules of court may provide that a court—
(a)
when deciding whether to exercise the power under subsection
5
(5), or
(b)
when deciding how to exercise that power,

must, or may or may not, have regard to matters specified in the rules,
or must take account of any guidance set out in the rules.”
(4)
In section 38 (interim care and supervision orders)—
10
(a)
in subsection (4) (duration of interim order) omit—
(i)
paragraph (a) (order may not last longer than 8 weeks), and
(ii)
paragraph (b) (subsequent order generally may not last longer
than 4 weeks),
(b)
in that subsection after paragraph (d) insert—
15
“(da)
in a case which falls within subsection (1)(b) and in
which—
(i)
no direction has been given under section 37(4),
and
(ii)
no application for a care order or supervision
20
order has been made with respect to the child,

the expiry of the period of eight weeks beginning with
the date on which the order is made;”, and
(c)
omit subsection (5) (interpretation of subsection (4)(b)).
(5)
In section 11(1) (section 8 orders: court’s duty, in the light of rules made by
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virtue of section 11(2), to draw up timetable and give directions to implement
it) for “rules made by virtue of subsection (2))” substitute “provision in rules of
court that is of the kind mentioned in subsection (2)(a) or (b))”.
(6)
In section 14E(1) (special guardianship orders: court’s duty, in the light of rules
made by virtue of subsection (3), to draw up timetable and give directions to
30
implement it) for “rules made by virtue of subsection (3))” substitute
“provision in rules of court that is of the kind mentioned in section 11(2)(a) or
(b))”.
(7)
In section 32(1) (care and supervision orders: court’s duty, in the light of rules
made by virtue of section 32(2), to draw up timetable and give directions to
35
implement it)—
(a)
for “hearing an application for an order under this Part” substitute “in
which an application for an order under this Part is proceeding”, and
(b)
for “rules made by virtue of subsection (2))” substitute “provision in
rules of court that is of the kind mentioned in subsection (2)(a) or (b))”.
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(8)
In section 109(1) of the Adoption and Children Act 2002 (adoption and
placement orders: court’s duty, in the light of rules made by virtue of section
109(2), to draw up timetable and give directions to implement it) for “rules
made by virtue of subsection (2))” substitute “provision in rules of court that is
of the kind mentioned in subsection (2)(a) or (b))”.
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15
Care plans
(1)
For section 31(3A) of the Children Act 1989 (no care order to be made until

Children and Families Bill
Part 2 — Family justice
15

court has considered section 31A care plan) substitute—
“(3A)
A court deciding whether to make a care order—
(a)
is required to consider the permanence provisions of the section
31A plan for the child concerned, but
(b)
is not required to consider the remainder of the section 31A
5
plan, subject to section 34(11).
(3B)
For the purposes of subsection (3A), the permanence provisions of a
section 31A plan are such of the plan’s provisions setting out the long-
term plan for the upbringing of the child concerned as provide for any
of the following—
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(a)
the child to live with any parent of the child’s or with any other
member of, or any friend of, the child’s family;
(b)
adoption;
(c)
long-term care not within paragraph (a) or (b).
(3C)
The Secretary of State may by regulations amend this section for the
15
purpose of altering what for the purposes of subsection (3A) are the
permanence provisions of a section 31A plan.”
(2)
In section 31A of the Children Act 1989 (care plans)—
(a)
in subsection (1) (where application made for care order, care plan to be
prepared within such time as the court may direct) for “the court may
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direct” substitute “may be prescribed”, and
(b)
after subsection (4) insert—
“(4A)
In this section “prescribed”—
(a)
in relation to a care plan whose preparation is the
responsibility of a local authority for an area in England,
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means prescribed by the Secretary of State; and
(b)
in relation to a care plan whose preparation is the
responsibility of a local authority in Wales, means
prescribed by the Welsh Ministers.”
(3)
In consequence of subsection (1), section 121(1) of the Adoption and Children
30
Act 2002 is repealed.
16
Care proceedings and care plans: regulations: procedural requirements
(1)
In section 104 of the Children Act 1989 (regulations and orders)—
(a)
in subsections (2) and (3A) (regulations within subsection (3B) or (3C)
not subject to annulment but to be approved in draft) after “(3B)” insert
35
“, (3BA)”, and
(b)
after subsection (3B) insert—
“(3BA)
Regulations fall within this subsection if they are regulations
made in the exercise of the power conferred by section 31(3C) or
32(9).”
40
(2)
In section 104A(1) of the Children Act 1989 (regulations made by the Welsh
Ministers to be made by statutory instrument) after “Part 3,” insert “section
31A,”.

Children and Families Bill
Part 2 — Family justice
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17
Repeal of restrictions on divorce and dissolution etc where there are children
(1)
The following are repealed—
(a)
section 41 of the Matrimonial Causes Act 1973 (in proceedings for
divorce etc. court is to consider whether to exercise powers under
Children Act 1989);
5
(b)
section 63 of the Civil Partnership Act 2004 (in proceedings for
dissolution etc. court is to consider whether to exercise powers under
Children Act 1989).
(2)
The following amendments and repeals are in consequence of the repeals made
by subsection (1).
10
(3)
In section 9(1)(a) of the Matrimonial Causes Act 1973 (proceedings after decree
of divorce: power to make decree absolute is subject to section 41)—
(a)
for “sections” substitute “section”, and
(b)
omit “and 41”.
(4)
In section 17(2) of that Act (grant of decree of judicial separation is subject to
15
section 41) omit “, subject to section 41 below,”.
(5)
Omit paragraph 31 of Schedule 12 to the Children Act 1989 (which substitutes
section 41 of the Matrimonial Causes Act 1973).
(6)
In section 40(4)(b) of the Civil Partnership Act 2004 (proceedings after
conditional order: power to make order final is subject to section 63) omit the
20
words from “and section 63” to the end.
(7)
In section 56(3) of that Act (making of separation order is subject to section 63)
omit “, subject to section 63,”.
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Repeal of uncommenced provisions of Part 2 of the Family Law Act 1996
(1)
Part 2 of the Family Law Act 1996 (divorce and separation), except section 22
25
(the only provision of Part 2 which is in force), is repealed.
(2)
In consequence of subsection (1), the following provisions of the Family Law
Act 1996 (which relate to provisions of Part 2) are repealed—
(a)
section 1(c) and (d),
(b)
section 63(2)(a),
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(c)
section 64(1)(a),
(d)
in section 65(5) the words “to rules made under section 12 or”,
(e)
Part 1 of Schedule 8, except—
(i)
paragraph 16(5)(a), (6)(b) and (7) (which have been brought into
force), and
35
(ii)
paragraphs 4 and 16(1) (which relate to those provisions),
(f)
in Schedule 9, paragraphs 1 and 2 and, in paragraph 4, the definitions
of “decree”, “instrument” and “petition”, and
(j)
in Schedule 10, the entries relating to—
(i)
the Matrimonial Causes Act 1973,
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(ii)
the Domicile and Matrimonial Proceedings Act 1973,
(iii)
sections 1, 7 and 63 of, and paragraph 38 of Schedule 2 to, the
Domestic Proceedings and Magistrates’ Courts Act 1978,
(iv)
the Senior Courts Act 1981,
(v)
the Administration of Justice Act 1982,
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Children and Families Bill
Part 2 — Family justice
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(vi)
the Matrimonial and Family Proceedings Act 1984,
(vii)
the Family Law Act 1986, and
(viii)
Schedule 13 to the Children Act 1989.
(3)
In consequence of subsections (1) and (2), the following provisions are
repealed—
5
(a)
paragraphs 50 to 52 of Schedule 4 to the Access to Justice Act 1999,
(b)
the following provisions of the Welfare Reform and Pensions Act
1999—
(i)
section 28(1)(b) and (c), (2), (4) and (5),
(ii)
section 48(1)(b) and (c), (2), (4) and (5), and
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(iii)
in Schedule 12, paragraphs 64 to 66,
(c)
paragraphs 22 to 25 of Schedule 1 to the Constitutional Reform Act
2005,
(d)
paragraph 12 of Schedule 2 to the Children and Adoption Act 2006, and
(e)
the following provisions of Schedule 5 to the Legal Aid, Sentencing and
15
Punishment of Offenders Act 2012—
(i)
paragraphs 43 to 45, and
(ii)
in the second column of the Table in Part 2, paragraph (l) of the
entry relating to Schedule 4 to the Access to Justice Act 1999.
(4)
In consequence of subsection (1), in section 1 of the Family Law Act 1996
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(general principles underlying Part 2), in the words before paragraph (a) and
in the title, for “Parts II and III” substitute “section 22”.
(5)
In consequence of subsection (3)(b)(i), in section 28(11) of the Welfare Reform
and Pensions Act 1999 (interpretation of subsections (4)(b), (5)(c) and (6)) for
“subsections (4)(b), (5)(c) and” substitute “subsection”.
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(6)
The modifications set out in subsection (7), which were originally made by
article 3(2) of the No. 2 Order and article 4 of the No. 3 Order, are to continue
to have effect but as amendments of the provisions concerned (rather than as
modifications having effect until the coming into force of provisions of the
Family Law Act 1996 repealed by this section without having come into force).
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(7)
The modifications are—
(a)
in section 22(2) of the Matrimonial and Family Proceedings Act 1984 for
the words from “if” to “granted” substitute “if a decree of divorce, a
decree of nullity of marriage or a decree of judicial separation has been
granted”, and
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(b)
in section 31 of the Matrimonial Causes Act 1973—
(i)
in subsection (7D) for “Subsections (7) and (8) of section 22A”
substitute “Section 23(6)”,
(ii)
in subsection (7D) for “section 22A” substitute “section 23”, and
(iii)
in subsection (7F) for “section 23A” substitute “section 24”.
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(8)
In section 31(7D) of the Matrimonial Causes Act 1973—
(a)
for “apply”, in the first place, substitute “applies”, and
(b)
for “they apply where it” substitute “it applies where the court”.
(9)
Articles 3(2) and 4 of the No. 2 Order, and article 4 of the No. 3 Order, are
revoked; and in subsection (6) and this subsection—
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“the No. 2 Order” means the Family Law Act 1996 (Commencement
No. 2) Order 1997 (S.I. 1997/1892), and

Children and Families Bill
Part 3 — Children and young people in England with special educational needs
18

“the No. 3 Order” means the Family Law Act 1996 (Commencement
No. 3) Order 1998 (S.I. 1998/2572).
Part 3
Children and young people in England with special educational needs
Local authority functions: general principles
5
19
Local authority functions: supporting and involving children and young
people
In exercising a function under this Part in the case of a child or young person,
a local authority in England must have regard to the following matters in
particular—
10
(a)
the views, wishes and feelings of the child and his or her parent, or the
young person;
(b)
the importance of the child and his or her parent, or the young person,
participating as fully as possible in decisions relating to the exercise of
the function concerned;
15
(c)
the importance of the child and his or her parent, or the young person,
being provided with the information and support necessary to enable
participation in those decisions;
(d)
the need to support the child and his or her parent, or the young person,
in order to facilitate the development of the child or young person and
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to help him or her achieve the best possible educational and other
outcomes.
Special educational needs etc
20
When a child or young person has special educational needs
(1)
A child or young person has special educational needs if he or she has a
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learning difficulty or disability which calls for special educational provision to
be made for him or her.
(2)
A child of compulsory school age or a young person has a learning difficulty
or disability if he or she—
(a)
has a significantly greater difficulty in learning than the majority of
30
others of the same age, or
(b)
has a disability which prevents or hinders him or her from making use
of facilities of a kind generally provided for others of the same age in
mainstream schools or mainstream post-16 institutions.
(3)
A child under compulsory school age has a learning difficulty or disability if
35
he or she is likely to be within subsection (2) when of compulsory school age
(or would be likely, if no special educational provision were made).
(4)
A child or young person does not have a learning difficulty or disability solely
because the language (or form of language) in which he or she is or will be
taught is different from a language (or form of language) which is or has been
40
spoken at home.
(5)
This section applies for the purposes of this Part.