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Session 2003 - 04
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Children Bill [HL]


These notes refer to the Children Bill [HL] as brought from the House of Lords on 19th July 2004 [Bill 144]





1.     These explanatory notes relate to the Children Bill [HL] which was brought from the House of Lords on 19th July 2004. They have been prepared by the Department for Education and Skills (DfES) in order to assist the reader in understanding the Bill. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a section or part of a section does not seem to require any explanation or comment, none is given.


3.     In September 2003, the Government published the Every Child Matters Green Paper alongside its formal response to the Victoria Climbi, Inquiry Report. The Green Paper proposed changes in policy and legislation in England to maximise opportunities and minimise risks for all children and young people, focusing services more effectively around the needs of children, young people and families.

4.     The consultation on the Green Paper showed broad support for the proposals, in particular the intention to concentrate on outcomes that children and young people themselves have said are important, rather than prescribing organisational change. The Bill has been produced in the light of this consultation and gives effect to the legislative proposals set out in the Green Paper to create clear accountability for children's services, to enable better joint working and to secure a better focus on safeguarding children. Alongside the Bill, the Government has published Every Child Matters: Next Steps. This provides details of the consultation response and the wider, non-legislative, elements of change that are being taken forward to promote the well-being of all children.

[Bill 144—EN]     53/3

5.     To ensure a voice for children and young people at national level Part 1 of the Bill provides for the establishment of a Children's Commissioner. Under clause 2, the Commissioner's role will be to promote and safeguard the rights and interests of children (and certain groups of vulnerable young adults) in England. The Commissioner will also be able to hold inquiries - on direction by the Secretary of State or on his own initiative - into cases of individual children with wider policy relevance in England or, on non-devolved matters, in other parts of the UK.

6.     Part 2 of the Bill gives effect to the principal legislative proposals contained in the Green Paper to support better integrated planning, commissioning, and delivery of children's services and provide for clear accountability.

7.     In particular, the Bill places a duty on local authorities to make arrangements through which key agencies co-operate to improve the well-being of children and young people and widen services' powers to pool budgets in support of this. To ensure that, within this partnership working, safeguarding children continues to be given priority the Bill places a responsibility for key agencies to have regard to the need to safeguard children and promote their welfare in exercising their normal functions. It also establishes statutory Local Safeguarding Children Boards to replace the existing non-statutory Area Child Protection Committees (clauses 7, 8, 10-13).

8.     To support professionals in working together and sharing information to identify difficulties and provide appropriate support, this part of the Bill also allows for the creation of databases holding information on all children and young people (clause 9).

9.     Part 2 includes measures to ensure clear accountability for children's services. The Bill will require local authorities in England to put in place a director of children's services to be accountable for, as a minimum, the local authority's education and social services functions in so far as they relate to children. It will also require the designation of a lead member for children's services to mirror the director's responsibility at a local political level (clauses 14 and 15).

10.     To ensure a shared approach across inspections, clauses 16 to 20 allow for the creation of an integrated inspection framework and for inspectorates to carry out joint reviews of all children's services provided in an area. (In support of this integrated approach, clause 42 extends existing intervention powers in relation to education functions of local authorities to children's social services.)

11.     Part 3 of the Bill provides for similar provisions to those in Part 2 to be made in Wales, but allows for implementation within the different context that exists for children's services there. In particular, reflecting this difference, in Wales authorities will be required to identify lead directors and members for children's services for local authorities, local health boards and NHS trusts. For Wales there are no provisions on inspection equivalent to those in clauses 16-20.

12.     Part 4 of the Bill provides for the devolution of CAFCASS functions in Wales to the Assembly.

13.     Part 5 of the Bill makes a number of further provisions:

  • to strengthen the existing notification arrangements for private fostering, with a reserve power to introduce a registration scheme should these not prove effective (clauses 37-40);

  • to clarify and simplify the registration of child minders and providers of day care (clause 41);

  • to provide for the extension of existing intervention powers as mentioned above (clause 42);

  • to provide for an extension of inspection powers under section 38 of the Education Act 1997 (clause 43);

  • to create a new duty for local authorities to promote the educational achievement of looked after children and an associated power to transmit data relating to individual children in monitoring this (clause 44 and 46);

  • to place on local authorities a new duty, before determining what (if any) services to provide under section 17 of the Children Act 1989 for a particular child in need, to ascertain the child's wishes regarding the provision of those services, and give due consideration to them (clause 45);

  • to allow for the payment of fees to adoption review panel members (clause 48);

  • to restrict the grounds on which the battery of a child may be justified as reasonable punishment (clause 49);

  • to allow grants to be paid across the range of children, young people and families services (clause 50);

  • to remove the power to make a care order at a lower threshold than would be usual under the Children Act as a sanction for not complying with a Child Safety Order (clause 51).


14.     Part 1 of the Bill, which establishes the Children's Commissioner, extends to the whole of the United Kingdom.

15.     Part 2 is concerned only with England and Part 3 only with Wales. Part 4 devolves to Wales functions previously exercised across England and Wales together. The provisions of Part 5 on the whole apply to England and Wales together (although clauses 38 and 39 provide separate powers for registration schemes in England and Wales respectively).



Clause 1: Establishment

Subsection (1) establishes the office of Children's Commissioner.

Subsection (2) gives effect to Schedule 1.

Schedule 1: Children's Commissioner

16.     This Schedule makes provision concerning the status, general powers, appointment, and remuneration of the Children's Commissioner. It provides for the staffing of his office, and accounting procedures. It also adds the Children's Commissioner and members of his staff to the list of office holders who are disqualified from being members of the House of Commons or the Northern Ireland Assembly.

17.     Paragraph 10 of Schedule 1 grants the Commissioner absolute privilege in terms of protection from defamation actions for any statement in a report published under this Part of the Bill. It also gives qualified privilege to the Commissioner and his staff for any other statements made for the purposes of this Part.

18.     Paragraph 11 of Schedule 1 amends the Criminal Justice and Court Services Act 2000. Section 35 of the Act makes it an offence for someone who is disqualified under the Act from working with children knowingly to apply for, offer to do, accept or do any work in a regulated position as defined in section 36. Paragraph 11 adds the Children's Commissioner and his deputy to the list of regulated positions in section 36.

Clause 2: General function

19.     The general function of the Children's Commissioner is set out in subsection (1). The Commissioner is to promote and safeguard the rights and interests of children in England. 'Children' means everyone under 18, and also, for the purposes of this clause, the groups of vulnerable young adults mentioned in subsection (10). The Commissioner will be concerned with all matters relating to both the public and private sectors that affect children in England.

20.     Subsection (2) provides more detail of what the Commissioner may do in the exercise of his function. Under subsection 2(a) the Children's Commissioner will encourage persons across all sectors whose policies and practices affect children to take account of children's rights, views and interests. The Commissioner will encourage them, for example by sharing best practice, to ensure that the rights, views and interests of children inform the development and delivery of their policies and practices. Not only will the Commissioner want to represent the views of children, he will encourage such persons to be proactive in gathering children's views themselves.

21.     Under subsection (2)(b) the Commissioner is to be able to give advice from a child's perspective to the relevant Secretary of State on matters affecting children, such as the development of policy or legislation. It is intended that the Commissioner will give advice on his own initiative and respond to requests for advice from any Secretary of State, but due to constraints on time and resources this may not always be possible, and the Commissioner will be expected to use his own judgment to prioritise requests.

22.     In reviewing and reporting on the operation of advice and advocacy services, complaints procedures, and whistle-blowing arrangements under subsection (2)(c) the Commissioner will want to see that they are effective and quick and easy for children to access and follow. The Commissioner will be able to look at any services, procedures or arrangements relevant to children, both public and private. It is envisaged that in doing this the Commissioner will work with the relevant Ombudsmen and statutory bodies as appropriate.

23.     Under subsection (2)(d) the Commissioner will have wide discretion over other matters relating to the rights, interests and views of children that he chooses to review and report on.

24.     Subsection (3) places a duty on the Commissioner to involve children in all of his work so that their views can inform his work. In particular, he has to make sure that they know what he does and how to contact him. He also must consult children and the organisations which work with them on the work to be undertaken by him under the functions set out in subsections (2)(c) and (2)(d). The intention is that the views of children drive the work of the Commissioner. Subsection (3)(c) requires the Commissioner, when issuing materials in any form, to seek to make those materials accessible to the children for whom they are intended. This will entail producing versions of material that are easily understood by children.

25.     The intention behind subsection (4) is that the Commissioner should pay particular regard to disadvantaged children who are most vulnerable or may need extra support in making their views known. It is intended that the Commissioner will be proactive in seeking and reflecting the views of children whose voices might not otherwise be listened to.

26.     Subsection (5) is intended to ensure that the Commissioner can get access to children for the purpose of getting their views. To ensure that the Commissioner can access children accommodated or cared for outside their homes (for example, in young offender institutions, children's homes or residential schools) subsection (5) gives him access to such establishments and the right to speak to a child in private if the child consents to this.

27.     To assist the Commissioner further, subsection (6) places a duty upon bodies with statutory functions to provide him with information that he requests as long as it is information that they already hold and can be disclosed lawfully to the Commissioner.

28.     Subsection (7) permits the Commissioner to assist a child to bring legal proceedings in circumstances where there is no other person or body likely to provide such assistance.

29.     Under subsections (8) and (9) the Commissioner must have regard to the relevant provisions of the United Nations Convention on the Rights of the Child (UNCRC) in his consideration of what the rights and interests of children are. The Commissioner's work will be driven and shaped by the rights and interests of children, with the UNCRC providing a useful indicator of those rights and interests. Subsection (9) makes it clear that the reference to the UNCRC is subject to any reservations, objections or declarations made by the UK in respect of it.

30.     Subsection (10) extends the definition of children to be used in this clause. As well as those under 18, it is to include: young people in custody under 22; care leavers for whom a local authority has duties under the Children Act, (which will be care leavers under the age of 21 or until the end of a full-time course of education); and young people with learning disabilities under 21.

Clause 3: Annual report

31.     Subsection (1) requires the Commissioner to report annually on what he has done, what he has found and what he intends to consider and research in the coming year. The Department expects the Commissioner to produce versions of his reports that are accessible and easy for children to understand, as appropriate.

32.     The Commissioner will make his annual report to the Secretary of State who must lay the report, unchanged, before both Houses of Parliament. The Commissioner will be responsible for publishing, publicising and disseminating the report.

Clause 4: Inquiries initiated by the Commissioner

33.     This clause permits the Commissioner to initiate inquiries into individual cases that meet certain criteria. It would apply to all matters relating to children (unlike in clause 2, this would only be those under eighteen) in England and to non-devolved matters relating to children in the other UK nations.

34.     Subsections (1) and (2) set out the criteria that the Commissioner must consider before starting an inquiry. The case concerned must raise issues of public policy that would be relevant to other children. This would for example mean that the Commissioner could hold an inquiry into the case of a child in a children's home or a residential school if the issues involved were relevant in general to children in such an establishment, but not if they were only relevant to children in that particular establishment. The Commissioner must satisfy himself that an inquiry would not duplicate the work that was the function of another person and to this end he must consult others who might have such a function. The Commissioner could carry out an inquiry if after conducting the appropriate consultation he had established that a person who might carry out an inquiry was not going to do so; or that his inquiry would be looking at an aspect of a case which was different from the aspect that someone else's inquiry would look at so his inquiry would not amount to a duplication of work. The aim of the inquiry must be to investigate the public policy issues arising from the case and make recommendations relating to them.

35.     Subsection (3) requires the Commissioner to consult the Secretary of State before holding an inquiry. The Secretary of State may offer guidance, but has no power to veto an inquiry: the final decision is for the Commissioner. Sub-section (4) allows the Commissioner to decide whether to hold all or part of an inquiry in private.

36.     Subsection (5) requires the Commissioner to publish a report and send a copy of it to the Secretary of State as soon as possible after completing the report. Subsection (6) permits the Commissioner to protect a child's identity in the inquiry report

37.     Subsections (7) to (9) give the Commissioner a range of powers to assist him in carrying out an inquiry under this clause. Under subsection (7), by virtue of the application of subsections (2) and (3) of section 250 of the Local Government Act 1972 the Commissioner will, when conducting an inquiry in England or Wales, be able to summons people to attend to give evidence or to produce documents and to administer oaths and take evidence on oath and it will be an offence to disobey a summons by for example refusing to give evidence or by tampering with documentary evidence. Subsections (8) and (9) make similar provision for inquiries held in Scotland and Northern Ireland.

Clause 5: Other inquiries held by the Commissioner

38.     Subsection (1) enables the Secretary of State to direct the Commissioner to hold an inquiry into the case of an individual child, where the Secretary of State considers the case to be of wider relevance or have implications for other children. In contrast to the power under clause 4, the Commissioner could under this clause carry out an inquiry into a case which only has implications for a small group of children. So, for example, he could hold an inquiry into the case of a child in a children's home or a residential school if the issues involved were relevant in general to children in such an establishment, or if they were only relevant to children in that particular establishment. It is envisaged that the Commissioner will play a role in determining whether a case is relevant, for example through his ability to offer advice to the Secretary of State.

39.     The Commissioner may hold the inquiry in private (subsection (2)) and he must make and send to the Secretary of State a report in relation to the inquiry as soon as possible after he has completed it (subsection (3)).

40.     Subsection (4) requires that in most cases the Secretary of State publish the report. Under subsection (5), however, where he thinks it would be undesirable for the identity of the child to be made public, he may publish an edited version of the report (making only those amendments necessary to protect the identity of the child), or, if it is not possible to publish a version of the report without identifying the child, withhold publication altogether. Subsection (6) requires the Secretary of State to lay a copy of each report published by him before each House of Parliament.

41.     Subsections (7) to (9) give the Commissioner a range of powers to assist him in carrying out an inquiry under this clause. Under subsection (7), by virtue of the application of subsections (2) to (5) of section 250 of the Local Government Act 1972 the Commissioner will, when conducting an inquiry in England or Wales, be able to summons people to attend to give evidence or to produce documents and to administer oaths and take evidence on oath; it will be an offence to disobey a summons by for example refusing to give evidence or by tampering with documentary evidence; the Secretary of State can direct parties to the inquiry to pay his costs and make orders for parties to pay the costs of other parties to the inquiry. Subsections (8) and (9) make similar provision for inquiries held in Scotland and Northern Ireland.

Clause 6: Relationship with other Commissioners

42.     This clause relates to the functions in clauses 4 and 5 only, as the function in clause 2 (and, by extension, that in clause 3) relates to children in England only.

43.     Subsection (1) prevents the Commissioner discharging his clause 4 function (inquiries initiated by the Commissioner) with regard to any case relating to devolved matters in Wales, Scotland or Northern Ireland. Subsection (2) places the same restriction on the Secretary of State in directing the Commissioner to hold an inquiry under clause 5.



Clause 7: Co-operation to improve well-being

44.     The purpose of this clause is to create a statutory framework for local co-operation between local authorities, key partner agencies ('relevant partners') and other relevant bodies ('other bodies or persons'), including the voluntary and community sector, in order to improve the well-being of children in the area. The duty to make these arrangements is placed on the local authority (defined in clause 52) and a duty to co-operate with the local authority is placed on the relevant partners. As well as underpinning wide co-operation arrangements, these duties and powers will also provide the statutory context within which agencies will be encouraged to integrate commissioning and delivery of children's services, underpinned by pooled budgeting arrangements, in Children's Trusts.

45.     Subsection (1) imposes a duty on the local authority to make arrangements to promote co-operation between the authority, its relevant partners (listed in subsection (4) and other bodies exercising functions or engaged in activities relating to children in the authority's area. The duty on each partner agency to co-operate is in subsection (5). Subsection (4)(f) refers to the Connexions Service.

46.     Subsection (2) sets out the purposes of such arrangements. They are to be made with a view to improving the well-being of children in the authority's area. This subsection also specifies the aspects of well-being with which such arrangements are concerned. These reflect the five outcomes which children identified as being most important to them.

47.     Subsection (3) ensures that in making arrangements, children's services authorities must have regard to the importance of the role of parents and carers in improving the well-being of children.

48.     Subsections (6) and (7) give a power for all the specified partners to provide staff, goods, services, accommodation or other resources and to pool budgets in support of these arrangements.

49.     Subsection (8) requires those subject to the duties to have regard to guidance from the Secretary of State. This guidance will be issued jointly by the relevant government departments to all of the relevant partners. It is likely that the guidance will set out the outcomes expected of these arrangements. These include: effective working together to understand the needs of local children, agreeing the contribution each agency should make to meet those needs, effective sharing of information at a strategic level and about individual children to support multi-agency working, and oversight of arrangements for agencies to work together in integrated planning, commissioning and delivery of services as appropriate. The guidance will, in particular, make clear that, for the local authority and Primary Care Trust and other participating services (e.g. Connexions, Youth Offending Teams) these arrangements should include consideration of integrated commissioning in the delivery of children's services. There will also be guidance as to the kinds of other bodies and persons referred to in subsection (1)(c) which the local authority may involve in these arrangements.

50.     Subsection (9) permits arrangements made under this clause to include those relating to persons aged 18 and 19 and persons over 19 receiving services as care leavers under the Children Act 1989 and persons under 25 with learning difficulties receiving services under the Learning and Skills Act 2000.

Clause 8: Arrangements to safeguard and promote welfare

51.     This clause imposes a duty on specified agencies to make arrangements to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children. The aim of this duty is to:

  • complement the general co-operation duty (clause 7) in the specific area of children's safeguards;

  • ensure that agencies give appropriate priority to their responsibilities towards the children in their care or with whom they come into contact;

  • encourage agencies to share early concerns about safety and welfare of children and to ensure preventative action before a crisis develops.

52.     This duty is intended to ensure that agencies are conscious of the need to safeguard children and promote their welfare in the course of executing their normal functions. Exercise of this duty will require agencies that come into contact with children to recognise that their needs are not always the same as adults i.e. that they are children, and vulnerable, as well as being patients, offenders, or people who use local amenities.

53.     Subsection (1) sets out the persons and bodies to which the duty applies.

54.     Subsection (2) sets out the duty and makes clear that it continues to apply where the relevant body contracts out services.

55.     Subsection (3) excludes the application of the duty where section 175 of the Education Act 2002 applies. That section places a similar duty on Local Education Authorities, schools and further education colleges, i.e. to make arrangements for ensuring that their functions are exercised with a view to safeguarding and promoting the welfare of children and to have regard to guidance issued for this purpose by the Secretary of State.

56.     Subsection (4) requires those exercising the duty to have regard to guidance from the Secretary of State.

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