Children and Families Bill (HC Bill 5)

71 Consequential amendments

Schedule 3 (amendments consequential on this Part) has effect.

72 Interpretation of Part 3

(1) In this Part—

• 5“EA 1996” means the Education Act 1996;

• “ESA 2008” means the Education and Skills Act 2008;

• “SSFA 1998” means the School Standards and Framework Act 1998.

(2) In this Part—

• “education, health and care provision” has the meaning given by section
  1026(2);

• “EHC needs assessment” has the meaning given by section 36(2);

• “EHC plan” means a plan within section 37(2);

• “health care provision” has the meaning given by section 21(3);

• “mainstream post-16 institution” means a post-16 institution that is not a
  15special post-16 institution;

• “mainstream school” means—

  (a)

  a maintained school that is not a special school;

  (b)

  an Academy school that is not a special school;

• “maintained school” means—

  (a)

  20a community, foundation or voluntary school, or

  (b)

  a community or foundation special school not established in a
  hospital;

• “post-16 institution” means an institution which—

  (a)

  provides education or training for those over compulsory
  25school age, but

  (b)

  is not a school or other institution which is within the higher
  education sector or which provides only higher education;

• “proprietor”, in relation to an institution that is not a school, means the
  person or body of persons responsible for the management of the
  30institution;

• “relevant early years education” has the meaning given by section 123 of
  SSFA 1998;

• “social care provision” has the meaning given by section 21(4);

• “social services functions” in relation to a local authority has the same
  35meaning as in the Local Authority Social Services Act 1970;

• “special educational needs” has the meaning given by section 20(1);

• “special educational provision” has the meaning given by section 21(1)
  and (2);

• “special post-16 institution” means a post-16 institution that is specially
  40organised to make special educational provision for students with
  special educational needs;

• “training” has the same meaning as in section 15ZA of EA 1996;

• “young person” means a person over compulsory school age but under
  25.

(3) 45A reference in this Part to “education”—

(a) includes a reference to full-time and part-time education, but

(b) does not include a reference to higher education,

and “educational” and “educate” (and other related terms) are to be read
accordingly.

(4) A reference in this Part to—

(a) 5a community, foundation or voluntary school, or

(b) a community or foundation special school,

is to such a school within the meaning of SSFA 1998.

(5) A reference in this Part to a child or young person who is “in the area” of a local
authority in England does not include a child or young person who is wholly
10or mainly resident in the area of a local authority in Wales.

(6) EA 1996 and the preceding provisions of this Part (except so far as they amend
other Acts) are to be read as if those provisions were contained in EA 1996.

Part 4 Childminder agencies etc

73 15Childminder agencies

Schedule 4 (amendments to the Childcare Act 2006 to provide for the
registration of childminder agencies on the childcare registers and the
registration of certain childcare providers with those agencies, and other
related amendments) has effect.

74 20Inspections at request of providers of childcare to young children

In section 49 of the Childcare Act 2006 (inspections of early years provision),
after subsection (5) insert—

“(5A) The Chief Inspector may charge a prescribed fee for conducting an
inspection of early years provision where—

(a) 25the inspection is conducted at the request of a registered person
who provides that early years provision, and

(b) the Chief Inspector is required by the Secretary of State under
subsection (2)(b) to conduct that inspection.”

75 Repeal of local authority’s duty to assess sufficiency of childcare provision

30Section 11 of the Childcare Act 2006 (duty of local authority in England to
assess sufficiency of childcare provision) is repealed.

76 Governing bodies: provision of community facilities

(1) Section 28 of the Education Act 2002 (limits on the powers of governing bodies
of maintained schools to provide community facilities etc under section 27) is
35amended as follows.

(2) In subsection (4), for “a governing body” substitute “the governing body of a
maintained school in Wales”.

(3) Omit subsection (4C).

(4) In subsection (5)—

(a) for “a governing body” substitute “the governing body of a maintained
school in Wales”, and

(b) in paragraph (a) omit “(in relation to England) by the Secretary of State
or (in relation to Wales)”.

5Part 5 The Children’s Commissioner

77 Primary function of the Children’s Commissioner

For section 2 of the Children Act 2004 (general function of the Children’s
Commissioner) substitute—

“2 10Primary function: children’s rights, views and interests

(1) The Children’s Commissioner’s primary function is promoting and
protecting the rights of children in England.

(2) The primary function includes promoting awareness of the views and
interests of children in England.

(3) 15In the discharge of the primary function the Children’s Commissioner
may, in particular—

(a) advise persons exercising functions or engaged in activities
affecting children on how to act compatibly with the rights of
children;

(b) 20encourage such persons to take account of the views and
interests of children;

(c) advise the Secretary of State on the rights, views and interests of
children;

(d) consider the potential effect on the rights of children of
25government policy proposals and government proposals for
legislation;

(e) bring any matter to the attention of either House of Parliament;

(f) investigate the availability and effectiveness of complaints
procedures so far as relating to children;

(g) 30investigate the availability and effectiveness of advocacy
services for children;

(h) investigate any other matter relating to the rights or interests of
children;

(i) monitor the implementation in England of the United Nations
35Convention on the Rights of the Child;

(j) publish a report on any matter considered or investigated under
this section.

(4) In the discharge of the primary function, the Children’s Commissioner
must have particular regard to the rights of children who are within
40section 8A (children living away from home or receiving social care)
and other groups of children who the Commissioner considers to be at
particular risk of having their rights infringed.

(5) The Children’s Commissioner may not conduct an investigation of the
case of an individual child in the discharge of the primary function.

2A United Nations Convention on the Rights of the Child

(1) The Children’s Commissioner must have regard to the United Nations
Convention on the Rights of the Child in considering for the purposes
of the primary function what constitute the rights and interests of
5children (generally or so far as relating to a particular matter).

(2) The references in section 2(3)(i) and this section to the United Nations
Convention on the Rights of the Child are to the Convention on the
Rights of the Child adopted by the General Assembly of the United
Nations on 20th November 1989 (including any Protocols to that
10Convention which are in force in relation to the United Kingdom),
subject to any reservations, objections or interpretative declarations by
the United Kingdom for the time being in force.

2B Involving children in the discharge of the primary function

(1) The Children’s Commissioner must take reasonable steps to involve
15children in the discharge of the primary function.

(2) The Commissioner must in particular take reasonable steps to—

(a) ensure that children are aware of the Commissioner’s primary
function and how they may communicate with him or her, and

(b) consult children, and organisations working with children, on
20the matters the Commissioner proposes to consider or
investigate in the discharge of the primary function.

(3) The Children’s Commissioner must for the purposes of this section
have particular regard to children who are within section 8A (children
living away from home or receiving social care) and other groups of
25children who the Commissioner considers do not have adequate means
by which they can make their views known.

2C Primary function: reports

(1) This section applies where the Children’s Commissioner publishes a
report in the discharge of the primary function.

(2) 30The Commissioner must, if and to the extent he or she considers it
appropriate, also publish the report in a version which is suitable for
children (or, if the report relates to a particular group of children, for
those children).

(3) Where the report contains recommendations about the exercise by a
35person of functions of a public nature, the Commissioner may require
that person to state in writing, within such period as the Commissioner
may reasonably require, what action the person has taken or proposes
to take in response to the recommendations.”

78 Provision by Commissioner of advice and assistance to certain children

40After section 2C of the Children Act 2004 (as inserted by section 77) insert—

“2D Provision of advice and assistance to certain children in England

(1) The Children’s Commissioner may provide advice and assistance to
any child who is within section 8A (children living away from home or
receiving social care).

(2) The Children’s Commissioner may in particular under this section
make representations on behalf of a child who is within section 8A to a
person in England who is—

(a) providing the child with accommodation or services, or

(b) 5otherwise exercising functions in relation to the child.”

79 Commissioner’s powers to enter premises

After section 2D of the Children Act 2004 (as inserted by section 78) insert—

“2E Powers to enter premises to conduct interviews or observe standards

(1) This section applies for the purposes of the Children’s Commissioner’s
10primary function and the function under section 2D.

(2) The Children’s Commissioner, or a person authorised by the
Commissioner, may at any reasonable time enter any premises, other
than a private dwelling—

(a) for the purpose of interviewing a child, or

(b) 15for the purpose of observing the standard of care provided to
children accommodated or otherwise cared for there.

(3) An interview of a child under subsection (2)(a) may be conducted in
private, if the child consents.

(4) A person who enters premises under subsection (1) may interview any
20person present on the premises who works there.

(5) It is immaterial for the purposes of subsection (4) whether a person’s
work is paid, or under a contract of employment.”

80 Provision of information to Commissioner

After section 2E of the Children Act 2004 (as inserted by section 79) insert—

“2F 25Provision of information to Commissioner

(1) Any person exercising functions of a public nature must supply the
Children’s Commissioner with such information in that person’s
possession relating to those functions as the Commissioner may
reasonably request for the purposes of the primary function or the
30function under section 2D.

(2) The information must be information which that person would, apart
from subsection (1), lawfully be able to disclose to the Commissioner.”

81 Advisory board

After section 7 of the Children Act 2004 insert—

“7A 35Advisory board

(1) The Children’s Commissioner must appoint an advisory board to
provide the Commissioner with advice and assistance relating to the
discharge of his or her functions.

(2) The advisory board must consist of persons who (taken together)
represent a broad range of interests which are relevant to the Children’s
Commissioner’s functions.

(3) The Children’s Commissioner must from time to time publish a report
5on the procedure followed and the criteria used when making
appointments to the advisory board.”

82 Business plans

After section 7A of the Children Act 2004 (as inserted by section 81) insert—

“7B Business plans

(1) 10The Children’s Commissioner must publish a business plan which sets
out, in relation to the discharge of the Commissioner’s functions—

(a) the Commissioner’s proposed main activities for the period
covered by the plan (including the matters he or she intends to
consider or investigate), and

(b) 15the Commissioner’s proposed strategic priorities for that
period.

(2) A business plan must cover a period of at least 12 months beginning
with the date of publication.

(3) The Commissioner must publish a new business plan before the end of
20the period covered by the preceding business plan.

(4) Before publishing a business plan under this section, the Children’s
Commissioner must—

(a) take reasonable steps to consult children,

(b) consult persons who (taken together) represent a broad range of
25interests which are relevant to the Children’s Commissioner’s
functions, and

(c) consult such other persons as the Commissioner thinks
appropriate.

(5) The Children’s Commissioner must for the purposes of subsection
30(4)(a) have particular regard to children who are within section 8A
(children living away from home or receiving social care) and other
groups of children who the Commissioner considers do not have
adequate means by which they can make their views known.”

83 Annual reports

(1) 35Section 8 of the Children Act 2004 (annual reports) is amended as follows.

(2) In subsection (1)—

(a) in paragraph (a) omit “under this Part, other than functions of holding
inquiries”,

(b) after paragraph (a) insert “and”, and

(c) 40omit paragraph (c) and the “and” which precedes it.

(3) In subsection (2) for the words from “an account” to the end substitute “—

(a) a summary of the Commissioner’s activities and an analysis of
the effectiveness of those activities in promoting and protecting
the rights of children,

(b) 5an account of what the Commissioner has done in the discharge
of his or her functions in relation to children who are within
section 8A (children living away from home or receiving social
care), and

(c) an account of the steps taken by the Commissioner to involve
10children in the discharge of his or her functions.”

(4) In subsection (3)(b) for “the Secretary of State” substitute “the Commissioner”.

(5) In subsection (4) for “the Secretary of State has laid” substitute “laying”.

(6) For subsection (5) substitute—

“(5) If the Children’s Commissioner does not consider a report made under
15this section to be suitable for children, the Commissioner must publish
a version of the report which is suitable for children.”

84 Children living away from home or receiving social care

After section 8 of the Children Act 2004 insert—

“8A Children in England living away from home or receiving social care

(1) 20For the purposes of this Part, a child is within this section if he or she is
within any of subsections (2) to (5).

(2) A child is within this subsection if he or she is provided with
accommodation by a school or college in England to which section 87(1)
of the Children Act 1989 applies.

(3) 25A child is within this subsection if he or she is accommodated in an
establishment (within the meaning of the Care Standards Act 2000) in
respect of which Her Majesty’s Chief Inspector of Education,
Children’s Services and Skills is the registration authority under
section 5 of that Act.

(4) 30A child is within this subsection if functions are being exercised in
relation to him or her by an agency (within the meaning of the Care
Standards Act 2000) in respect of which Her Majesty’s Chief Inspector
of Education, Children’s Services and Skills is the registration authority
under section 5 of that Act.

(5) 35A child is within this subsection if a local authority in England exercises
social services functions (within the meaning of the Local Authority
Social Services Act 1970) in relation to him or her.

(6) For the purposes of this Part, a person who is not a child is to be treated
as a child who is within this section if—

(a) 40he or she is aged 18 or over and under 25, and

(b) a local authority in England has provided services to him or her
under any of sections 23C to 24D of the Children Act 1989 at any
time after he or she reached the age of 16.”

85 Children’s Commissioner: minor and consequential amendments

Schedule 5 (minor and consequential amendments to Part 1 of the Children Act
2004 and to other Acts) has effect.

86 Repeal of requirement to appoint Children’s Rights Director

(1) 5Section 120 of the Education and Inspections Act 2006 (requirement to appoint
Children’s Rights Director) is repealed.

(2) In that Act—

(a) in section 117 (performance of functions of the Office for Standards in
Education, Children’s Services and Skills), in subsection (2) after
10paragraph (a) insert—

“(aa) any matters raised by the Children’s Commissioner
with the Office or the Chief Inspector;”, and

(b) in section 119 (performance of the functions of the Chief Inspector of
Education, Children’s Services and Skills), in subsection (3) after
15paragraph (a) (and before the “and” which follows it) insert—

“(aa) any matters raised by the Children’s Commissioner
with the Chief Inspector;”.

(3) Schedule 6 (transfers of staff and property in consequence of the repeal of the
requirement to appoint a Children’s Rights Director) has effect.

20Part 6 Statutory rights to leave and pay

Shared parental leave

87 Shared parental leave

(1) In Part 8 of the Employment Rights Act 1996, after section 75D there is
25inserted—

“Chapter 1B

Shared parental leave

75E Entitlement to shared parental leave: birth

(1) The Secretary of State may make regulations entitling an employee who
satisfies specified conditions—

(a) as to duration of employment,

(b) 30as to being, or expecting to be, the mother of a child,

(c) as to caring or intending to care, with another person (“P”), for
the child,

(d) as to entitlement to maternity leave,

(e) as to the exercise of that entitlement and the extent of any such
35exercise,

(f) as to giving notice of an intention to exercise an entitlement to
leave under this subsection, and

(g) as to the consent of P to the amount of leave under this
subsection that the employee intends to take,

to be absent from work on leave under this subsection for the purpose
of caring for the child.

(2) 5Regulations under subsection (1) may provide that the employee’s
entitlement is subject to the satisfaction by P of specified conditions—

(a) as to employment or self-employment,

(b) as to having earnings of a specified amount for a specified
period,

(c) 10as to caring or intending to care, with the employee, for the
child, and

(d) as to relationship with the child or the employee.

(3) Provision under subsection (1)(f) may require the employee to give
notice to the employer about—

(a) 15the amount of leave to which the employee would be entitled if
the entitlement were fully exercised (disregarding for these
purposes any intention of P to exercise an entitlement to leave
under subsection (4) or to statutory shared parental pay);

(b) how much of the entitlement to leave the employee intends to
20exercise;

(c) the extent to which P intends to exercise an entitlement to leave
under subsection (4) or to statutory shared parental pay.

(4) The Secretary of State may make regulations entitling an employee who
satisfies specified conditions—

(a) 25as to duration of employment,

(b) as to relationship with a child or expected child or with the
child’s mother,

(c) as to caring or intending to care, with the child’s mother, for the
child,

(d) 30as to giving notice of an intention to exercise an entitlement to
leave under this subsection, and

(e) as to the consent of the child’s mother to the amount of leave
under this subsection that the employee intends to take,

to be absent from work on leave under this subsection for the purpose
35of caring for the child.

(5) Regulations under subsection (4) may provide that the employee’s
entitlement is subject to the satisfaction by the child’s mother of
specified conditions—

(a) as to employment or self-employment,

(b) 40as to having earnings of a specified amount for a specified
period,

(c) as to caring or intending to care, with the employee, for the
child,

(d) as to entitlement (or lack of entitlement) to maternity leave,
45statutory maternity pay or maternity allowance, and

(e) as to the exercise of any such entitlement and the extent of any
such exercise.

(6) Provision under subsection (4)(d) may require the employee to give
notice to the employer about—

(a) the amount of leave to which the employee would be entitled if
the entitlement were fully exercised (disregarding for these
purposes any intention of the child’s mother to exercise an
entitlement to leave under subsection (1) or to statutory shared
5parental pay);

(b) how much of the entitlement to leave the employee intends to
exercise;

(c) the extent to which the child’s mother intends to exercise an
entitlement to leave under subsection (1) or to statutory shared
10parental pay.

75F Entitlement to leave under section 75E: further provision

(1) Regulations under section 75E are to include provision for
determining—

(a) the amount of leave under section 75E(1) or (4) to which an
15employee is entitled in respect of a child;

(b) when leave under section 75E(1) or (4) may be taken.

(2) Provision under subsection (1)(a) is to secure that the amount of leave
to which an employee is entitled in respect of a child does not exceed—

(a) in a case where the child’s mother became entitled to maternity
20leave, the relevant amount of time reduced by—

(i) where her maternity leave ends without her ordinary or
additional maternity leave period having been curtailed
by virtue of section 71(3)(ba) or 73(3)(a), the amount of
maternity leave taken by the child’s mother, or

(ii) 25except where sub-paragraph (i) applies, the amount of
time between the beginning of her maternity leave and
the time when her ordinary or additional maternity
leave period, as curtailed by virtue of section 71(3)(ba)
or 73(3)(a), comes to an end;

(b) 30in a case where the child’s mother became entitled to statutory
maternity pay or maternity allowance but not maternity leave,
the relevant amount of time reduced by an amount determined
in accordance with paragraph (a) or, as the case may be,
paragraph (b) of section 171ZU(6) of the Social Security
35Contributions and Benefits Act 1992.

(3) In subsection (2) “the relevant amount of time” means an amount of
time specified in or determined in accordance with regulations under
section 75E.

(4) Provision under subsection (1)(a) is to secure that the amount of leave
40that an employee is entitled to take in respect of a child takes into
account—

(a) in a case where another person is entitled to leave under section
75E in respect of the child, the amount of such leave taken by the
other person;

(b) 45in a case where another person is entitled to statutory shared
parental pay in respect of the child but not leave under section
75E, the number of weeks in respect of which such pay is
payable to the other person.