House of Commons - Explanatory Note
Children Bill [HL] - continued          House of Commons

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Clause 22: Responsibility for functions under section 21

121.     Subsection (1) of this clause requires a local authority in Wales to appoint a lead director for children and young people's services with responsibility for co-ordinating and over-seeing the arrangements made under clause 21. This will not affect the existing service delivery responsibilities of the Chief Education Officer and the Director of Social Services. It is anticipated that an existing director, or even the chief executive, will usually be appointed as the 'lead director'. The lead director will ensure that the partnership planning process is given a high profile within the local authority and acts as a driver for strategic planning for children and young people in the local authority area. At the elected member level his responsibilities will be matched by a 'lead member for children and young people's services'. As with the lead director, the lead member may also hold other responsibilities.

122.     Subsections (2) and (3) require NHS trusts and Local Health Boards, as the local authorities' most significant statutory partners in providing services for children and young people, to appoint lead executive and non-executive directors (in the case of an NHS trust) and a lead officer and member (in the case of a Local Health Board) to deal with the planning arrangements under clause 21. As with local authorities, these persons may also hold other responsibilities.

123.     Subsection (4) provides for the Assembly to give guidance relating to this clause. In practice, it is expected that this guidance will be integrated with that under clause 21.

Clause 23: Arrangements to safeguard and promote welfare: Wales

124.     Reference should be made to the notes in respect of clause 8, which makes the equivalent provision in respect of England. This clause imposes a duty on specified bodies or persons 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 21) in the specific area of children's safeguards;

  • ensure that agencies give appropriate priority to their responsibilities towards 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.

125.     Subsection (1) lists those bodies and persons to whom the clause is to apply, and subsection (2) sets out the duty. The reference in subsection (1)(h) to services under section 123 of the Learning and Skills Act 2000 is to youth support services provided as part of the 'Extending Entitlement' initiative.

126.     Subsection (4) provides that those persons and bodies mentioned shall have regard to guidance given to them by the Assembly. In the case of a police authority, a chief officer of police, a local probation board, a youth offending team or a secure establishment the guidance will not be issued by the Assembly but by the Secretary of State after consultation with the Assembly, as stated in subsection (5).

Clause 24: Information databases: Wales

127.     The notes to Clause 9 apply, save that in Wales, guidance will be given and directions issued by the Assembly rather than the Secretary of State.

Clause 25-28: Local Safeguarding Children Boards: Wales

128.     The notes to clauses 10-13 apply, save that in Wales, regulations will be made and guidance given by the Assembly rather than the Secretary of State.


CAFCASS functions in Wales

Clause 29: Functions of the Assembly relating to family proceedings

129.     This clause confers on the Assembly the functions currently carried out for England and Wales by the Children and Family Court Advice and Support Service (CAFCASS). CAFCASS serves the Family Division of the High Court, county courts (including care centres), and family proceedings courts. The service safeguards and promotes the welfare of the children before courts dealing with family proceedings; gives advice to any court about any application made to it in such proceedings; makes provision for the children to be represented in such proceedings; and provides information, advice and other support for the children and their families.

130.     The intention is that, following the coming into force of this clause, responsibility for the welfare of children who are ordinarily resident in Wales who are or may be the subject of family proceedings as defined, will devolve to the Assembly. For all other children, responsibility will be retained by CAFCASS, although it is anticipated that there may be agreed reallocation of cases between CAFCASS officers and Welsh family proceedings officers, as defined in subsection (4).

131.     Subsection (2) provides that the Assembly must ensure that arrangements are made to enable Welsh family proceedings officers to exercise their duty as imposed by any enactment.

Clause 30: Ancillary powers of the Assembly

132.     Subsection (1) allows the Assembly to make arrangements with organisations to perform its functions under clause 29. This would give the Assembly the option of contracting with some other body to perform the functions on its behalf. Subsection (8) makes it clear that such a body could be in the public, private, or voluntary sectors.

133.     Subsection (2) allows any organisation doing this work to designate individuals to carry out functions of Welsh family proceedings officers.

134.     Subsection (3) sets conditions of quality and value for money if the Assembly is to make arrangements with another organisation.

135.     Subsection (4) enables the Assembly to make arrangements with individuals, such as self-employed practitioners, to carry out functions of Welsh family proceedings officers.

136.     Subsections (5) and (6) allow the Assembly to second staff and provide services to those carrying out the functions, while subsection (7) allows it to charge for doing so.

Clause 31: Welsh family proceedings officers

137.     Subsection (1) provides that the Assembly may authorise a Welsh family proceedings officer to conduct litigation in relation to any proceedings in any court and to exercise a right of audience in any proceedings before any court, in the exercise of his functions as a Welsh family proceedings officer if he is of a description as prescribed by the Secretary of State.

138.     By virtue of subsections (2) and (3) a Welsh family proceedings officer exercising a right to conduct litigation, or the right of audience under this clause, is treated as having acquired that right solely by virtue of this clause, and not by virtue of any qualification which he might have.

Clause 32: Inspections

139.     This clause allows the Assembly to request inspection and report on the relevant activities of the Assembly and Welsh family proceedings officers post devolution. Such a request will require the agreement of the Secretary of State as having responsibility for the inspectorate.

Clause 33: Protection of children

140.     Subsection (1) applies the Protection of Children Act 1999 to the Assembly as though it were a childcare organisation for the purposes of the functions of the Assembly under this part. The Protection of Children Act relates to the suitability of people to work with children, and the clause also provides for the Assembly to ensure that appropriate mechanisms are in place in any organisations carrying out the functions on the Assembly's behalf in order that the Assembly can be satisfied that persons employed by that organisation are suitable.

Clause 34: Advisory and support services for family proceedings: supplementary

141.     The clause brings Schedule 3 into effect.

Schedule 3 - Advisory and support services for family proceedings

142.     The amendments in paragraphs 2 to 11 and 15 to 18 of the Schedule make provision relating to 'Welsh family proceedings officers' and their functions. In particular, the amendments confer the same functions on Welsh family proceedings officers as currently exist for officers of CAFCASS.

143.     The amendment in paragraph 13 limits the functions of CAFCASS to children other than those ordinarily resident in Wales.

144.     The amendment in paragraph 14 makes consequential provision relating to the membership of CAFCASS.


Clause 35: Transfer of property from CAFCASS to Assembly

145.     This clause provides for a scheme agreed by the Secretary of State and Assembly to provide for the transfer of property, rights, and liabilities from CAFCASS to the Assembly.

Clause 36: Transfer of staff from CAFCASS to Assembly

146.     The Secretary of State and the Assembly may make a scheme under this clause for the transfer of employees from CAFCASS to the Assembly in order to enable the exercise of the new functions conferred on the Assembly. Under the scheme, the Assembly would inherit the responsibilities of CAFCASS as employer as though the original contract of employment had been with the Assembly and not with CAFCASS.

147.     Subsection (5) provides that, should any employee object to transfer, then he is not to be transferred, his contract is terminated immediately before transfer and he is not to be treated as though he had been dismissed. The clause does not prevent an employee from ending his contract if a substantial detrimental change is made to working conditions.

148.     Subsection (7) makes it a prerequisite to the making of a scheme for any prescribed requirement as to consultation with CAFCASS employees to have been complied with.

Private fostering

Clause 37: Amendments to notification scheme

149.     The law on private fostering arrangements and the role of local authorities with respect to them is set out in Part 9 of, and Schedule 8 to, the Children Act 1989 and in the Children (Private Arrangements for Fostering) Regulations 1991.

150.     A privately fostered child is one who is under the age of 16 (under 18 if he is disabled) and who is cared for and accommodated by someone other than a parent, other person with parental responsibility or close relative. A child is not privately fostered if the person caring for them has done so for fewer than 28 days and does not intend to do so longer than that. There are a number of exemptions from this definition set out in Schedule 8 to the Children Act 1989.

151.     The current legislative provisions relating to private fostering, referred to in these notes as the notification scheme, require those involved in a private fostering arrangement to give the local authority advance notice of it. Privately fostered children are not `looked after' children in the terms of section 22 of the Children Act 1989 and local authorities do not get involved in the making of such arrangements, but they have to satisfy themselves that the welfare of privately fostered children in their area is satisfactorily safeguarded and promoted. They also have powers to impose requirements on arrangements and to prohibit them altogether.

152.     The amendments in subsections (2) to (5) extend the duties of local authorities in cases where a child is proposed to be, but is not yet, privately fostered.

153.     Subsection (2) amends section 67(1) of the Children Act 1989, under which local authorities are required to satisfy themselves that the welfare of privately fostered children is being satisfactorily safeguarded and promoted, so that the duty also applies in respect of children who are proposed to be privately fostered.

154.     Subsection (2) also amends the duty on local authorities under section 67(1), which requires them to secure that such advice is given to those caring for privately fostered children as appears to the authorities to be needed. The amendment extends the duty to include advice to prospective foster carers and/or to parents. The intention is that local authorities should be able to give such advice, for example, where one proposed fostering arrangement has been prohibited by the local authority and no other is currently contemplated. The parents may need advice then on what alternative arrangements can be made for the care of their child.

155.     Section 67(2) of the Children Act 1989 gives the Secretary of State the power to make regulations about visits by the local authority to privately fostered children and imposing requirements which are to be met by local authorities in carrying out their functions under section 67.

156.     The new subsection (2A), inserted by clause 37(3), provides that the regulations made under section 67(2)(b) may say what local authorities have to do when they are told that a child is going to be privately fostered. The intention is that these regulations will require local authorities to carry out proper checks on, and satisfy themselves of the suitability of, a proposed arrangement or exercise their powers to prohibit, or impose requirements on, the arrangement before the child is privately fostered.

157.     Subsection (4) amends section 67(3) of the Children Act 1989. The existing reference in this section to a person authorised "to visit privately fostered children" was not very apt for a case where he is, under this provision, inspecting premises for children who are proposed to be privately fostered.

158.     Subsection (5) amends section 67(5) so that the current duties of a local authority where it is not satisfied that the welfare of a privately fostered child is being satisfactorily safeguarded or promoted will apply in the case of children who are proposed to be privately fostered.

159.     New section 67(6), inserted by subsection (6), gives the Secretary of State the power to make regulations requiring local authorities to monitor the way in which they discharge their functions under Part 9 of the Children Act 1989. It is intended that such monitoring might include keeping a record of notifications received, monitoring compliance with timescales for visits and recording any prohibitions or requirements imposed along with reports of any visits and the outcomes of notifications. This information could then be collated in an annual report to Local Safeguarding Children Boards. The intention of this provision is to increase the focus of local authorities on private fostering.

160.     Subsection (7) inserts a new paragraph 7A into Schedule 8 of the Children Act 1989. This will require local authorities to raise public awareness of the requirement to notify the local authority of private fostering arrangements.

161.     Subsection (8) provides that the new regulation-making powers inserted into the Children Act 1989 by this clause will, with respect to Wales, be exercised by the National Assembly for Wales.

Clause 38: Power to establish registration scheme in England

162.     Subsection (1) gives the Secretary of State the power to set up through regulations a scheme for the registration of private foster carers. More detail of the scheme is provided in the rest of the clause.

163.     Subsection (2) provides for regulations to make supplementary provision relating to the registration of people for private fostering and sets out some matters in relation to which such provision can be made.

164.     Subsection (2)(a) says that the regulations may make provision as to how a person applies for registration and as to the procedure to be followed by the authority in considering an application. It is supplemented by subsection (3), which highlights that the regulations may make it an offence for a person, in an application for registration as a private foster carer, knowingly to make a statement which is false or misleading in a material way.

165.     Subsection (2)(b), which makes for provision in the regulations as to the requirements to be satisfied before a person may be registered, is supplemented by subsection (4), which sets out some detail of what these requirements might include. These are the requirements with which all prospective private foster carers will need to comply in order to be registered.

166.     Subsection (2)(c), which concerns the circumstances in which a person is disqualified from being registered, is supplemented by subsection (5), which sets out in more detail the circumstances in which regulations may say that a person is disqualified. Subsection (6) allows the regulations to provide that the authority may determine whether a person is or is not disqualified. This means that even if someone might otherwise be disqualified the authority could decide that nevertheless they should be able to be registered.

167.     Subsection (2)(f), which makes provision in the regulations as to the imposition by a local authority of conditions on registration and as to the variation or cancellation of conditions, is supplemented by subsection (7), which makes provision for what these conditions might include. These conditions are requirements imposed at the discretion of local authorities only on particular people. For example, a condition would be appropriate where a local authority wanted a particular person to do something to become suitable for private fostering (e.g. do something to their premises).

168.     Subsection 2(j) makes for provision in the regulations as to other requirements that might be imposed on local authorities or registered persons. It is supplemented by subsection (8), which makes provision for a requirement that a registered private foster carer obtain the consent of the authority before privately fostering a child so that the authority can check on the appropriateness of the arrangement for that particular child. If the authority is not satisfied with the arrangements for that child, then they may prevent the care of that child with that private foster carer. This will not affect the registered status of the private foster carer. Subsection (8) also makes provision relating to the giving of such consent by the authority.

169.     In relation to subsection 2(j), subsection (9) makes provision for a requirement that authorities undertake annual inspections in relation to registered private foster carers (whether or not they are at the time privately fostering children) and for the payment of fees by registered persons in respect of such inspections.

170.     Subsections (10) to (13) deal with offences. Subsection (10) makes provision for regulations which may authorise a local authority to issue a notice to any person whom they believe to be privately fostering a child in their area while unregistered; and which may provide that a person would be guilty of an offence if, without reasonable cause, he/she continued to privately foster a child when such a notice was in force.

171.     Subsection (11) makes provision for regulations which may provide for the offence of breach of requirements without reasonable excuse.

172.     Subsection (12) makes provision for regulations which may provide for an offence where a person who is disqualified from registration fosters a child privately, unless he is disqualified because he lives in the same household as someone who is disqualified or in a household in which such a person is employed and did not know and had no reasonable grounds for believing that the other person was disqualified. This offence carries a more severe penalty, including possible imprisonment, reflecting the greater seriousness of the offence.

173.     There is no offence merely for breach of a condition imposed by the local authority. If there was breach of a condition, the local authority would have to de-register the person before any criminal offence could bite.

174.     Subsection (14) will enable the repeal of those parts of the Children Act 1989 which will be incompatible with the registration scheme and to add functions under this provision to the functions listed in Schedule 1 of the Local authority Social Services Act 1970 (making them social services functions).

Clause 39: Power to establish a registration scheme in Wales

175.     Clause 39 confers the same power on the National Assembly for Wales as Clause 38 confers on the Secretary of State.

Clause 40: Expiry of power in clauses 38 and 39

176.     Subsection (1) provides that if no regulations have been made under clause 38 within fours years of Royal Assent, that section will cease to have effect at that time.

177.     Subsection (2) makes the same provision for Wales.

178.     Subsections (1) and (2) operate independently, so if regulations are not made in England within the four year period, the power in clause 38 expires even if regulations have been made under clause 39 in Wales (and vice versa).

Clause 41: Child minding and day care

179.     This clause gives effect to Schedule 4.

Schedule 4: Child minding and day care

180.     This Schedule makes minor amendments to Schedule 9A of the Children Act 1989 which was introduced by the Care Standards Act 2000.

181.     Paragraph 2 enables conditions imposed by a court or tribunal upon a child minder or day care provider's registration to be treated in the same way as conditions imposed by the registration authority. This will clarify the status of conditions imposed by a court or tribunal and the enforcement action that may be taken by the registration authority if these conditions are breached.

182.     Paragraph 3 makes clear that fees for registration as a child minder or day care provider are payable on application for registration and are non-refundable.

183.     Paragraph 4 creates more flexibility in the way that the registration authority can levy ongoing fees by removing the requirement that fees be 'annual'.

184.     Paragraph 5. Under Schedule 9A, a person may be disqualified for registration for child minding or day care. That has the result not only that the person may not be registered, but that he may not be concerned in certain ways with the provision of day care (paragraph 4(4) of the Schedule) or be employed in the provision of day care (paragraph 4(5)). However, disqualification may be waived (paragraph 4(3A)). The purpose of the amendment is to clarify that waiver of disqualification may be granted not only for registration itself but also for the purposes of the prohibitions in paragraphs 4(4) and 4(5).

185.     Paragraph 6 removes the requirement upon the registration authority to make an assessment as to whether all persons looking after children are suitable to do so, and all persons living or working on the day care premises are suitable to be in regular contact with children. As part of its determination as to whether the applicant is qualified for registration, the registration authority will check that the employer has appropriate procedures in place to make suitability assessments, thereby enabling him to qualify for registration. The registration authority will continue to assess the suitability of the person in charge of a day care setting and to assess that the applicant is qualified for registration under section 79F.

186.     Paragraph 7. At present a person who is disqualified for registration for providing day care may not be concerned with the management of day care, of have any financial interest in the provision of day care. Paragraph 7 removes the prohibition on disqualified persons having a financial interest in day care, and limits the scope of the prohibition relating to management to disqualified persons who are directly concerned with the management of day care.

187.     Paragraph 8 clarifies that unincorporated associations can be registered in their own name rather than in the name of individuals who make up a particular association. It ensures that enforcement action can be taken against the association as a whole as well as, where appropriate, against responsible individuals.

Local authority services

Clause 42: Intervention

188.     This clause allows the Secretary of State or National Assembly for Wales to intervene where local authorities are failing to discharge functions relating to children's services to an adequate standard. It does so by extending existing powers of intervention relating to education functions.

189.     The clause applies section 497A of the Education Act 1996 (power to secure proper performance of LEA's functions) to functions which are relevant functions for the purposes of the clauses. The relevant functions are set out in subsection (2) and include social services functions relating to children, functions in relation to children leaving care and functions under clauses 7 and 9 of the Bill (clauses 21 and 24 in relation to Wales).

190.     The Secretary of State's power to give a direction under section 497A arises where he is satisfied that a local authority is failing in any respect to perform any relevant function of a local authority to an adequate standard (or at all). The same test will accordingly apply in relation to the power as extended by the clause.

191.     Subsection (4) makes clear that the ancillary provisions of sections 497AA and 497B apply where the power in section 497A is exercised pursuant to this clause.

192.     Subsection (6) ensures that, where a direction is given under section 497A in relation to education functions, it can also extend to the functions referred to in subsection (2) (so that it is not necessary to give two separate directions).

193.     This clause does not restrict the use of other powers of intervention.

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Prepared: 20 July 2004