Children and Families Bill (HC Bill 5)

(4) For subsection (2) substitute—

“(2) Subsections (3) to (5) of section 2 and sections 2A to 2C, 2E and 2F
apply in relation to the Children’s Commissioner’s function under
subsection (1) as in relation to the Commissioner’s primary function.

(2A) 5For the purposes of subsection (2)—

(a) section 2(3)(i) has effect as if for “in England” there were
substituted “in Scotland, in relation to reserved matters,”,

(b) sections 2(4) and 2B(3) have effect as if for “children who are
within section 8A (children living away from home or
10receiving social care) and other groups of children” there
were substituted “groups of children”,

(c) section 2E(1) has effect as if “and the function under section
2D” were omitted, and

(d) section 2F(1) has effect as if “or the function under section
152D” were omitted.”

5 (1) Section 7 of the Children Act 2004 (functions of Commissioner in Northern
Ireland) is amended as follows.

(2) In subsection (1), for “promoting awareness of the views and interests of
children in Northern Ireland in relation to excepted matters” substitute
20“promoting and protecting the rights of children in Northern Ireland where
those rights are or may be affected by excepted matters”.

(3) After subsection (1) insert—

“(1A) The function under subsection (1) includes promoting awareness of
the views and interests of children in Northern Ireland.”

(4) 25For subsection (2) substitute—

“(2) Subsections (3) to (5) of section 2 and sections 2A to 2C, 2E and 2F
apply in relation to the Children’s Commissioner’s function under
subsection (1) as in relation to the Commissioner’s primary function.

(2A) For the purposes of subsection (2)—

(a) 30section 2(3)(i) has effect as if for “in England” there were
substituted “in Northern Ireland, in relation to excepted
matters,”,

(b) sections 2(4) and 2B(3) have effect as if for “children who are
within section 8A (children living away from home or
35receiving social care) and other groups of children” there
were substituted “groups of children”,

(c) section 2E(1) has effect as if “and the function under section
2D” were omitted, and

(d) section 2F(1) has effect as if “or the function under section
402D” were omitted.”

Young persons

6 (1) For section 9 of the Children Act 2004 (care leavers and young persons with

learning disabilities) substitute—

“9 Commissioner’s functions in relation to certain young people

(1) This section applies for the purposes of this Part, other than sections
2A and 8A (and references in this Part to a child who is within section
58A).

(2) For the purposes of the Children’s Commissioner’s functions in
respect of children in England, a reference to a child includes, in
addition to a person under the age of 18—

(a) a person aged 18 or over for whom an EHC plan is
10maintained by a local authority,

(b) a person aged 18 or over and under 25 to whom a local
authority in England has provided services under any of
sections 23C to 24D of the Children Act 1989 at any time after
reaching the age of 16, or

(c) 15a person aged 18 or over and under 25 who has been looked
after by a local authority (in Wales, Scotland or Northern
Ireland) at any time after reaching the age of 16.

(3) For the purposes of the Children’s Commissioner’s functions in
respect of children in Wales, Scotland and Northern Ireland, a
20reference to a child includes, in addition to a person under the age of
18, a person aged 18 or over and under 25—

(a) who has a learning disability,

(b) who has been looked after by a local authority (in Wales,
Scotland or Northern Ireland) at any time after reaching the
25age of 16, or

(c) to whom a local authority in England has provided services
under any of sections 23C to 24D of the Children Act 1989 at
any time after reaching the age of 16.

(4) For the purposes of this section—

• 30“EHC plan” means a plan within section 37(2) of the Children
  and Families Act 2013 (education, health and care plans);

• “learning disability” means a state of arrested or incomplete
  development of mind which induces significant impairment
  of intelligence and social functioning;

• 35a person is “looked after by a local authority” if—

  (a)

  for the purposes of the Children Act 1989, he or she is
  looked after by a local authority in Wales;

  (b)

  for the purposes of the Children (Scotland) Act 1995,
  he or she is looked after by a local authority in
  40Scotland;

  (c)

  for the purposes of the Children (Northern Ireland)
  Order 1995, he or she is looked after by an authority
  in Northern Ireland.”

(2) Until the coming into force of Part 3 of this Act, section 9 of the Children Act
452004 (as substituted by sub-paragraph (1)) has effect as if—

(a) in subsection (2) for paragraph (a) there were substituted—

“(a) a person aged 18 or over and under 25 in respect of
whom an assessment under section 139A of the

Learning and Skills Act 2000 (a learning difficulty
assessment) has been conducted,”, and

(b) in subsection (4) the definition of “EHC plan” were omitted.

Appointment and tenure of Children’s Commissioner

7 5In Schedule 1 to the Children Act 2004, in paragraph 3 (appointment and
tenure of office)—

(a) in sub-paragraph (2) for “, to such extent and in such manner as he
thinks fit,” substitute “take reasonable steps to”,

(b) in sub-paragraph (4) for “five years” substitute “six years”, and

(c) 10in sub-paragraph (5) for “is eligible for reappointment once only”
substitute “is not eligible for reappointment”.

8 In Schedule 1 to the Children Act 2004, after paragraph 3 insert—

“Interim appointments

3A (1) Where there is a vacancy in the office of Children’s Commissioner,
15the Secretary of State may appoint a person as interim Children’s
Commissioner.

(2) Subject to the provisions of this paragraph, a person holds and
vacates office as interim Children’s Commissioner in accordance
with the terms and conditions of the appointment as determined
20by the Secretary of State.

(3) An appointment as interim Children’s Commissioner is for a term
ending—

(a) with the appointment of a person as the Children’s
Commissioner under paragraph 3, or

(b) 25if sooner, at the end of the period of six months beginning
with the date on which the appointment as interim
Children’s Commissioner was made.

(4) A person who has held office as interim Children’s
Commissioner—

(a) 30is eligible for reappointment, and

(b) is eligible for appointment as the Children’s
Commissioner.

(5) An interim Children’s Commissioner may at any time resign by
notice in writing to the Secretary of State.

(6) 35The Secretary of State may remove an interim Children’s
Commissioner from office if satisfied that the interim
Commissioner has—

(a) become unfit or unable properly to discharge his or her
functions; or

(b) 40behaved in a way that is not compatible with continuing in
office.”

Deputy Children’s Commissioner

9 (1) In Schedule 1 to the Children Act 2004, in paragraph 5 (staff)—

(a) in sub-paragraph (1) omit “, one of whom shall be appointed as
deputy Children’s Commissioner”,

(b) omit sub-paragraph (2), and

(c) in sub-paragraph (3) omit “Without prejudice to sub-paragraph (2),”.

(2) 5In consequence of sub-paragraph (1), in section 36(6) of the Criminal Justice
and Court Services Act 2000 (meaning of “regulated position”), in paragraph
(fa) omit “and deputy Children’s Commissioner”.

Section 86

SCHEDULE 6 Repeal of requirement to appoint Children’s Rights Director: transfer schemes

10Staff transfer schemes

1 (1) The Secretary of State may make a scheme (a “staff transfer scheme”)
providing for designated members of staff of the Office for Standards in
Education, Children’s Services and Skills (“the Office”) to become members
of the Children’s Commissioner’s staff.

(2) 15A staff transfer scheme may provide—

(a) for the terms and conditions of service of a member of staff of the
Office to have effect (subject to any necessary modifications) as the
terms and conditions of service as a member of the Children’s
Commissioner’s staff;

(b) 20for the transfer to the Children’s Commissioner of the rights, powers,
duties and liabilities of the Office under or in connection with the
contract of employment of the member of staff;

(c) for anything done (or having effect as if done) before that transfer by
or in relation to the Office in respect of such a contract or the member
25of staff to be treated as having been done by or in relation to the
Children’s Commissioner.

(3) A staff transfer scheme may provide for a period before a person became a
member of the Children’s Commissioner’s staff to count as a period during
which he or she was a member of the Commissioner’s staff (and for the
30operation of the scheme not to be treated as having interrupted the
continuity of that period).

(4) A staff transfer scheme may provide for a person who would be treated (by
an Act or otherwise) as being dismissed by the operation of the scheme not
to be so treated.

(5) 35A staff transfer scheme may provide for a person who is a member of staff
of the Office not to become a member of the Children’s Commissioner’s staff
if the person gives notice objecting to the operation of the scheme in relation
to him or her.

Property transfer schemes

2 (1) 40The Secretary of State may make a scheme (a “property transfer scheme”)
providing for the transfer to the Children’s Commissioner of designated
property, rights or liabilities of the Office.

(2) A property transfer scheme may—

(a) create rights, or impose liabilities, in relation to property or rights
transferred by virtue of the scheme;

(b) provide for anything done by or in relation to the Office in
5connection with any property, rights or liabilities transferred by the
scheme to be treated as done, or to be continued, by or in relation to
the Children’s Commissioner;

(c) apportion property, rights and liabilities;

(d) make provision about the continuation of legal proceedings.

(3) 10The things that may be transferred by a property transfer scheme include—

(a) property, rights and liabilities that could not otherwise be
transferred;

(b) property acquired, and rights and liabilities arising, after the making
of the scheme.

15The Chief Inspector

3 In the following provisions of this Schedule, a reference to the Office
includes a reference to the Chief Inspector—

(a) paragraph 1(2)(b) (to the extent that the Chief Inspector has rights,
powers, duties or liabilities under or in connection with the contract
20of employment of a member of staff of the Office);

(b) paragraph 1(2)(c) (to the extent that anything has been done (or has
effect as if done) by or in relation to the Chief Inspector in respect of
such a contract or member of staff before a transfer);

(c) paragraph 2(1) (to the extent that the Chief Inspector has property,
25rights or liabilities);

(d) paragraph 2(2)(b) (to the extent that anything has been done by or in
relation to the Chief Inspector in respect of any property, rights or
liabilities transferred by a property transfer scheme).

Continuity

4 30A transfer by virtue of a staff transfer scheme or a property transfer scheme
does not affect the validity of anything done by or in relation to the Office or
the Chief Inspector before the transfer takes effect.

Supplementary provisions

5 A staff transfer scheme or a property transfer scheme may include
35supplementary, incidental, transitional and consequential provision.

Interpretation

6 In this Schedule—

• “the Chief Inspector” means Her Majesty’s Chief Inspector of
  Education, Children’s Services and Skills;

• 40“designated”, in relation to a staff transfer scheme or a property transfer
  scheme, means specified in, or determined in accordance with, the
  scheme;

• “the Office” has the meaning given in paragraph 1(1).

Section 96

SCHEDULE 7 Statutory rights to leave and pay: further amendments

Social Security Act 1989 (c. 24)Social Security Act 1989 (c. 24)

1 Schedule 5 to the Social Security Act 1989 (employment-related schemes for
5pensions or other benefits to comply with the principle of equal treatment
for men and women) is amended as follows.

2 (1) Paragraph 5A (schemes that contain unfair paternity leave provisions) is
amended as follows.

(2) In sub-paragraph (3) (how scheme affected), in the words following
10paragraph (b), for “, ordinary statutory paternity pay or additional statutory
paternity pay” there is substituted “or statutory paternity pay”.

(3) In sub-paragraph (4) (definitions), in the definition of “period of paid
paternity leave”—

(a) in paragraph (a), after “(6), (7)” there is inserted “, (7A) or (7B)”;

(b) 15in paragraph (a), the words “or (8)” are repealed;

(c) in paragraph (b), for “, ordinary statutory paternity pay or additional
statutory paternity pay” there is substituted “or statutory paternity
pay”.

(4) In sub-paragraph (7) (type of paid paternity leave: where adoption does not
20involve placement for adoption under the law of any part of the United
Kingdom), for “section 171ZK” there is substituted “section 171ZK(1)”.

(5) After sub-paragraph (7) there is inserted—

“(7A) This sub-paragraph applies if—

(a) the member’s absence from work is due to the placement
25or expected placement of a child under section 22C of the
Children Act 1989, and

(b) in relation to that child, the member satisfies the conditions
prescribed under section 171ZB(2)(a)(i) and (ii) of the
Social Security Contributions and Benefits Act 1992, as
30modified by section 171ZB(8) of that Act (cases involving
the placing of a child by a local authority in England with
a local authority foster parent who has been approved as a
prospective adopter).

(7B) This sub-paragraph applies if—

(a) 35the member’s absence from work is due to the birth or
expected birth of a child, and

(b) in relation to that child, the member satisfies the conditions
prescribed under section 171ZB(2)(a)(i) and (ii) of the
Social Security Contributions and Benefits Act 1992, as
40applied by virtue of section 171ZK(2) of that Act (cases
involving applicants for parental orders under section 54
of the Human Fertilisation and Embryology Act 2008).”

(6) Sub-paragraph (8) (absence from work in circumstances where certain
conditions for payment of additional statutory paternity pay are satisfied) is
45repealed.

3 (1) Paragraph 5B (schemes that contain unfair adoption leave provisions) is
amended as follows.

(2) In sub-paragraph (4) (definitions), in the definition of “period of paid
adoption leave”, in paragraph (a), for “or (6)” there is substituted “, (6), (7) or
5(8)”.

(3) After sub-paragraph (6) there is inserted—

“(7) This sub-paragraph applies if—

(a) the member’s absence from work is due to the placement
or expected placement of a child under section 22C of the
10Children Act 1989, and

(b) in relation to that child, the member satisfies the condition
in section 171ZL(2)(a) of the Social Security Contributions
and Benefits Act 1992, as modified by section 171ZL(9) of
that Act (cases involving the placing of a child by a local
15authority in England with a local authority foster parent
who has been approved as a prospective adopter).

(8) This sub-paragraph applies if—

(a) the member’s absence from work is due to the birth or
expected birth of a child, and

(b) 20in relation to that child, the member satisfies the condition
in section 171ZL(2)(a) of the Social Security Contributions
and Benefits Act 1992, as applied by virtue of section
171ZT(2) of that Act (cases involving applicants for
parental orders under section 54 of the Human
25Fertilisation and Embryology Act 2008).”

4 After paragraph 5B there is inserted—

“Unfair shared parental leave provisions

5C (1) Where an employment-related benefit scheme includes any unfair
shared parental leave provisions (irrespective of any differences
30on the basis of sex in the treatment accorded to members under
those provisions), then—

(a) the scheme shall be regarded to that extent as not
complying with the principle of equal treatment; and

(b) subject to sub-paragraph (3), this Schedule shall apply
35accordingly.

(2) In this paragraph “unfair shared parental leave provisions”, in
relation to an employment-related benefit scheme, means any
provision—

(a) which relates to continuing membership of, or the accrual
40of rights under, the scheme during any period of paid
shared parental leave in the case of any member who is (or
who, immediately before the commencement of such a
period, was) an employed earner and which treats such a
member otherwise than in accordance with the normal
45employment requirement; or

(b) which requires the amount of any benefit payable under
the scheme to or in respect of any such member, to the
extent that it falls to be determined by reference to earnings

during a period which included a period of paid shared
parental leave, to be determined otherwise than in
accordance with the normal employment requirement.

(3) In the case of any unfair shared parental leave provision—

(a) 5the more favourable treatment required by paragraph 3(1)
is treatment no less favourable than would be accorded to
the member in accordance with the normal employment
requirement; and

(b) paragraph 3(2) does not authorise the making of any such
10election as is there mentioned;

but, in respect of any period of paid shared parental leave, a
member shall only be required to pay contributions on the amount
of contractual remuneration or statutory shared parental pay
actually paid to or for the member in respect of that period.

(4) 15In this paragraph—

• “the normal employment requirement” is the requirement
  that any period of paid shared parental leave shall be
  treated as if it were a period throughout which the member
  in question works normally and receives the remuneration
  20likely to be paid for doing so;

• “period of paid adoption leave” has the same meaning as in
  paragraph 5B;

• “period of paid paternity leave” has the same meaning as in
  paragraph 5A;

• 25“period of paid shared parental leave”, in the case of a
  member, means a period—

  (a)

  throughout which the member is absent from work in
  circumstances where sub-paragraph (5), (6), (7), (8),
  (9) or (10) applies, and

  (b)

  30for which the employer (or if the member is no longer
  in that person’s employment, his former employer)
  pays the member any contractual remuneration or
  statutory shared parental pay.

(5) This sub-paragraph applies if—

(a) 35the member’s absence from work is due to the birth of a
child,

(b) the member is the mother of the child, and

(c) the absence from work is not absence on maternity leave
(within the meaning of the Equality Act 2010).

(6) 40This sub-paragraph applies if—

(a) the member’s absence from work is due to the birth of a
child,

(b) the member is a person who satisfies the conditions
prescribed under section 171ZU(4)(b)(i) or (ii) of the Social
45Security Contributions and Benefits Act 1992 in relation to
the child, and

(c) the member’s absence from work is not absence during a
period of paid paternity leave.

(7) This sub-paragraph applies if—

(a) the member’s absence from work is due to the placement
of a child for adoption under the law of any part of the
United Kingdom,

(b) the member is—

(i) 5a person with whom a child is placed for adoption
under the law of any part of the United Kingdom,
or

(ii) a person who satisfies the conditions prescribed
under section 171ZV(4)(b)(i) or (ii) of the Social
10Security Contributions and Benefits Act 1992 in
relation to the child, and

(c) the member’s absence from work is not absence during—

(i) a period of paid paternity leave, or

(ii) a period of paid adoption leave.

(8) 15This sub-paragraph applies if—

(a) the member’s absence from work is due to the placement
of a child under section 22C of the Children Act 1989 by a
local authority in England with a local authority foster
parent who has been approved as a prospective adopter,

(b) 20the member is—

(i) the local authority foster parent with whom the
child in question is placed under section 22C of the
Children Act 1989, or

(ii) a person who satisfies the conditions prescribed
25under section 171ZV(4)(b)(i) or (ii) of the Social
Security Contributions and Benefits Act 1992, as
modified by section 171ZV(18) of that Act (cases
involving the placing of a child by a local authority
in England with a local authority foster parent who
30has been approved as a prospective adopter), in
relation to the child, and

(c) the member’s absence from work is not absence during—

(i) a period of paid paternity leave, or

(ii) a period of paid adoption leave.

(9) 35This sub-paragraph applies if—

(a) the member’s absence from work is due to the adoption or
expected adoption of a child who has entered the United
Kingdom in connection with or for the purposes of
adoption which does not involve placement of the child for
40adoption under the law of any part of the United
Kingdom,

(b) the member is—

(i) the person who has adopted or expects to adopt the
child in question, or

(ii) 45a person who satisfies the conditions prescribed
under section 171ZV(4)(b)(i) or (ii) of the Social
Security Contributions and Benefits Act 1992, as
applied by virtue of section 171ZZ5(1) of that Act
(adoption cases not involving placement under the
50law of the United Kingdom), in relation to the
child, and

(c) the member’s absence from work is not absence during—

(i) a period of paid paternity leave, or

(ii) a period of paid adoption leave.

(10) This sub-paragraph applies if—

(a) 5the member’s absence from work is due to the birth of a
child,

(b) the member is a person who has applied, or intends to
apply, for a parental order under section 54 of the Human
Fertilisation and Embryology Act 2008 in relation to the
10child, and

(c) the member’s absence from work is not absence during—

(i) a period of paid paternity leave, or

(ii) a period of paid adoption leave.”

Finance Act 1989 (c. 26)Finance Act 1989 (c. 26)

5 (1) 15Section 182 of the Finance Act 1989 (offences relating to disclosure of
information relating to social security functions etc) is amended as follows.

(2) In subsection (1) (offence where official discloses information relating to an
individual’s tax affairs etc), in paragraph (c) (an individual’s statutory
pay)—

(a) 20for “ordinary statutory paternity pay, additional statutory paternity
pay or” there is substituted “statutory paternity pay,”;

(b) after “statutory adoption pay” there is inserted “or statutory shared
parental pay”.

(3) In subsection (2A) (meaning of “social security functions”), in paragraph
25(a)—

(a) for “ordinary statutory paternity pay, additional statutory paternity
pay or” there is substituted “statutory paternity pay,”;

(b) after “statutory adoption pay” there is inserted “or statutory shared
parental pay”.

(4) 30In subsection (4)(c) (offence where person discloses information relating to
an individual’s tax affairs etc), in sub-paragraph (iii) (an individual’s
statutory benefits and statutory pay)—

(a) for “ordinary statutory paternity pay, additional statutory paternity
pay or” there is substituted “statutory paternity pay,”;

(b) 35after “statutory adoption pay” there is inserted “or statutory shared
parental pay”.

(5) In subsection (5)(b) (exception to offence: disclosure with consent)—

(a) for “ordinary statutory paternity pay, additional statutory paternity
pay or” there is substituted “statutory paternity pay,”;

(b) 40after “statutory adoption pay” there is inserted “or statutory shared
parental pay”.

(6) In subsection (11A) (references to Great Britain statutory pay to include
references to statutory pay under corresponding Northern Ireland
legislation)—

(a) 45for “ordinary statutory paternity pay, additional statutory paternity
pay or” there is substituted “statutory paternity pay,”;