Children and Families Bill (HC Bill 5)

Promotion of educational achievement of children looked after by local authorities

9 Promotion of educational achievement of children looked after by local
authorities

In the Children Act 1989, in section 22 after subsection (3A) (duty of local
5authorities to promote the educational achievement of looked after children)
insert—

“(3B) A local authority in England must appoint at least one person for the
purpose of discharging the duty imposed by virtue of subsection (3A).

(3C) A person appointed by a local authority under subsection (3B) must be
10an officer employed by that authority or another local authority in
England.”

Part 2 Family justice

10 Family mediation information and assessment meetings

(1) 15Before making a relevant family application, a person must attend a family
mediation information and assessment meeting.

(2) Family Procedure Rules—

(a) may provide for subsection (1) not to apply in circumstances specified
in the Rules,

(b) 20may make provision about convening a family mediation information
and assessment meeting, or about the conduct of such a meeting,

(c) may make provision for the court not to issue, or otherwise deal with,
an application if, in contravention of subsection (1), the applicant has
not attended a family mediation information and assessment meeting,
25and

(d) may provide for a determination as to whether an applicant has
contravened subsection (1) to be made after considering only evidence
of a description specified in the Rules.

(3) In this section—

• 30“the court” means the High Court or the family court;

• “family mediation information and assessment meeting”, in relation to a
  relevant family application, means a meeting held for the purpose of
  enabling information to be provided about—

  (a)

  mediation of disputes of the kinds to which relevant family
  35applications relate,

  (b)

  ways in which disputes of those kinds may be resolved
  otherwise than by the court, and

  (c)

  the suitability of mediation, or of any such other way of
  resolving disputes, for trying to resolve any dispute to which
  40the particular application relates;

• “family proceedings” has the same meaning as in section 75 of the Courts
  Act 2003;

• “relevant family application” means an application that—

  (a)

  is made to the court in, or to initiate, family proceedings, and

  Children and Families BillPage 11

  (b)

  is of a description specified in Family Procedure Rules.

(4) This section is without prejudice to sections 75 and 76 of the Courts Act 2003
(power to make Family Procedure Rules).

11 Welfare of the child: parental involvement

(1) 5Section 1 of the Children Act 1989 (welfare of the child) is amended as follows.

(2) After subsection (2) insert—

“(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as
respects each parent within subsection (6)(a) to presume, unless the
contrary is shown, that involvement of that parent in the life of the child
10concerned will further the child’s welfare.”

(3) After subsection (5) insert—

“(6) In subsection (2A) “parent” means parent of the child concerned; and,
for the purposes of that subsection, a parent of the child concerned—

(a) is within this paragraph if that parent can be involved in the
15child’s life in a way that does not put the child at risk of
suffering harm; and

(b) is to be treated as being within paragraph (a) unless there is
some evidence before the court in the particular proceedings to
suggest that involvement of that parent in the child’s life would
20put the child at risk of suffering harm whatever the form of the
involvement.

(7) The circumstances referred to are that the court is considering whether
to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5)
(parental responsibility of parent other than mother).”

12 25Child arrangements orders

(1) Section 8(1) of the Children Act 1989 is amended as follows.

(2) Omit the definitions of “contact order” and “residence order”.

(3) After “In this Act—” insert—

• ““child arrangements order” means an order regulating
  30arrangements relating to any of the following—

  (a)

  with whom a child is to live, spend time or otherwise
  have contact, and

  (b)

  when a child is to live, spend time or otherwise have
  contact with any person;”.

(4) 35Schedule 2 (amendments relating to child arrangements orders) has effect.

13 Control of expert evidence, and of assessments, in children proceedings

(1) A person may not without the permission of the court instruct a person to
provide expert evidence for use in children proceedings.

(2) Where in contravention of subsection (1) a person is instructed to provide
40expert evidence, evidence resulting from the instructions is inadmissible in
children proceedings unless the court rules that it is admissible.

(3) A person may not without the permission of the court cause a child to be
medically or psychiatrically examined or otherwise assessed for the purposes
of the provision of expert evidence in children proceedings.

(4) Where in contravention of subsection (3) a child is medically or psychiatrically
5examined or otherwise assessed, evidence resulting from the examination or
other assessment is inadmissible in children proceedings unless the court rules
that it is admissible.

(5) In children proceedings, a person may not without the permission of the court
put expert evidence (in any form) before the court.

(6) 10The court may give permission as mentioned in subsection (1), (3) or (5) only if
the court is of the opinion that the expert evidence is necessary to assist the
court to resolve the proceedings justly.

(7) When deciding whether to give permission as mentioned in subsection (1), (3)
or (5) the court is to have regard in particular to—

(a) 15any impact which giving permission would be likely to have on the
welfare of the children concerned, including in the case of permission
as mentioned in subsection (3) any impact which any examination or
other assessment would be likely to have on the welfare of the child
who would be examined or otherwise assessed,

(b) 20the issues to which the expert evidence would relate,

(c) the questions which the court would require the expert to answer,

(d) what other expert evidence is available (whether obtained before or
after the start of proceedings),

(e) whether evidence could be given by another person on the matters on
25which the expert would give evidence,

(f) the impact which giving permission would be likely to have on the
timetable for, and duration and conduct of, the proceedings,

(g) the cost of the expert evidence, and

(h) any matters prescribed by Family Procedure Rules.

(8) 30References in this section to providing expert evidence, or to putting expert
evidence before a court, do not include references to—

(a) the provision or giving of evidence—

(i) by a person who is a member of the staff of a local authority or
of an authorised applicant,

(ii) 35in proceedings to which the authority or authorised applicant is
a party, and

(iii) in the course of the person’s work for the authority or
authorised applicant,

(b) the provision or giving of evidence—

(i) 40by a person within a description prescribed for the purposes of
subsection (1) of section 94 of the Adoption and Children Act
2002 (suitability for adoption etc.), and

(ii) about the matters mentioned in that subsection,

(c) the provision or giving of evidence by an officer of the Children and
45Family Court Advisory and Support Service when acting in that
capacity, or

(d) the provision or giving of evidence by a Welsh family proceedings
officer (as defined by section 35(4) of the Children Act 2004) when
acting in that capacity.

(9) In this section—

• “authorised applicant” means—

  (a)

  the National Society for the Prevention of Cruelty to Children,
  or

  (b)

  5a person authorised by an order under section 31 of the
  Children Act 1989 to bring proceedings under that section;

• “child” means a person under the age of 18;

• “children proceedings” has such meaning as may be prescribed by Family
  Procedure Rules;

• 10“the court”, in relation to any children proceedings, means the court in
  which the proceedings are taking place;

• “local authority”—

  (a)

  in relation to England means—

  (i)

  a county council,

  (ii)

  15a district council for an area for which there is no county
  council,

  (iii)

  a London borough council,

  (iv)

  the Common Council of the City of London, or

  (v)

  the Council of the Isles of Scilly, and

  (b)

  20in relation to Wales means a county council or a county borough
  council.

(10) The preceding provisions of this section are without prejudice to sections 75
and 76 of the Courts Act 2003 (power to make Family Procedure Rules).

(11) In section 38 of the Children Act 1989 (court’s power to make interim care and
25supervision orders, and to give directions as to medical examination etc. of
children) after subsection (7) insert—

“(7A) A direction under subsection (6) to the effect that there is to be a
medical or psychiatric examination or other assessment of the child
may be given only if the court is of the opinion that the examination or
30other assessment is necessary to assist the court to resolve the
proceedings justly.

(7B) When deciding whether to give a direction under subsection (6) to that
effect the court is to have regard in particular to—

(a) any impact which any examination or other assessment would
35be likely to have on the welfare of the child, and any other
impact which giving the direction would be likely to have on
the welfare of the child,

(b) the issues with which the examination or other assessment
would assist the court,

(c) 40the questions which the examination or other assessment would
enable the court to answer,

(d) the evidence otherwise available,

(e) the impact which the direction would be likely to have on the
timetable, duration and conduct of the proceedings,

(f) 45the cost of the examination or other assessment, and

(g) any matters prescribed by Family Procedure Rules.”

14 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”
5substitute “disposing of the application—

(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) 10A court, when drawing up a timetable under subsection (1)(a), must in
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
15the proceedings.

(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) 20the impact which any revision would have on the welfare of the
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
25extend the period that is for the time being allowed under subsection
(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
30court must in particular have regard to—

(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;

35and here “ensuing timetable revision” means any revision, of the
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
40be granted routinely and are to be seen as requiring specific
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) 45the end of the day on which the extension is granted.

(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) 5when deciding whether to exercise the power under subsection
(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) 10In section 38 (interim care and supervision orders)—

(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) 15in that subsection after paragraph (d) insert—

“(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) 20no application for a care order or supervision
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) 25In section 11(1) (section 8 orders: court’s duty, in the light of rules made by
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
30made by virtue of subsection (3), to draw up timetable and give directions to
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
35made by virtue of section 32(2), to draw up timetable and give directions to
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
40rules of court that is of the kind mentioned in subsection (2)(a) or (b))”.

(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
45of the kind mentioned in subsection (2)(a) or (b))”.

15 Care plans

(1) For section 31(3A) of the Children Act 1989 (no care order to be made until

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) 5is not required to consider the remainder of the section 31A
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
10of the following—

(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) 15The Secretary of State may by regulations amend this section for the
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
20prepared within such time as the court may direct) for “the court may
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
25responsibility of a local authority for an area in England,
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) 30In consequence of subsection (1), section 121(1) of the Adoption and Children
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)
35not subject to annulment but to be approved in draft) after “(3B)” insert
“, (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
4032(9).”

(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,”.

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
5Children Act 1989);

(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
10by subsection (1).

(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) 15In section 17(2) of that Act (grant of decree of judicial separation is subject to
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
20conditional order: power to make order final is subject to section 63) omit the
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,”.

18 Repeal of uncommenced provisions of Part 2 of the Family Law Act 1996

(1) 25Part 2 of the Family Law Act 1996 (divorce and separation), except section 22
(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) 30section 63(2)(a),

(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
35force), and

(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) 40the Matrimonial Causes Act 1973,

(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) 45the Administration of Justice Act 1982,

(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
5repealed—

(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) 10section 48(1)(b) and (c), (2), (4) and (5), and

(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) 15the following provisions of Schedule 5 to the Legal Aid, Sentencing and
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) 20In consequence of subsection (1), in section 1 of the Family Law Act 1996
(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
25“subsections (4)(b), (5)(c) and” substitute “subsection”.

(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
30Family Law Act 1996 repealed by this section without having come into force).

(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
35granted”, and

(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) 40in subsection (7F) for “section 23A” substitute “section 24”.

(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
45revoked; and in subsection (6) and this subsection—

• “the No. 2 Order” means the Family Law Act 1996 (Commencement
  No. 2) Order 1997 (S.I. 1997/1892S.I. 1997/1892), and

Children and Families BillPage 19

• “the No. 3 Order” means the Family Law Act 1996 (Commencement
  No. 3) Order 1998 (S.I. 1998/2572S.I. 1998/2572).

Part 3 Children and young people in England with special educational needs

5Local authority functions: general principles

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
10particular—

(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
15the function concerned;

(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,
20in order to facilitate the development of the child or young person and
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) 25A child or young person has special educational needs if he or she has a
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) 30has a significantly greater difficulty in learning than the majority of
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) 35A child under compulsory school age has a learning difficulty or disability if
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
40taught is different from a language (or form of language) which is or has been
spoken at home.

(5) This section applies for the purposes of this Part.