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

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Clause 43: Inspection of local education authorities

194.     This clause amends section 38 of the Education Act 1997 (inspection of LEAs). At present Ofsted (in England) or Estyn (in Wales) may inspect functions relating to the provision of education by a local education authority for persons of compulsory school age or persons above or below that age who are registered as pupils at a school maintained by the authority. The amendment has the effect that Ofsted (for England) and Estyn (for Wales), in carrying out an inspection under that section, will review any local education function. There is an exception, in England, for functions falling within the Adult Learning Inspectorate's remit.

Clause 44: Duty of local authorities to promote educational achievement

195.     This clause amends section 22 of the Children Act 1989, which set out the general duties of a local authority in relation to each child whom it is looking after. There is a duty in subsection (3) to safeguard and promote the welfare of the child. This clause inserts a new subsection (3A) which places a particular duty on the local authority to promote the child's educational achievement.

196.     A looked after child is defined in section 22 as a child in care (i.e. under a care order) or a child provided with accommodation by the local authority in exercise its social services functions. There is evidence that this group of children achieve significantly less well than their peers, and that that this under-performance is due at least in part to a lack of effective support from local authorities as 'corporate parents' of these children.

197.     The new duty will mean that local authorities will have to give particular attention to the educational implications of any decision about the welfare of any child they are looking after. That might be for instance the need to organise a suitable school placement at the same time as arranging a new care placement.

Clause 45: Ascertaining children's wishes

198.     This clause amends section 17 of the Children Act 1989, under which a local authority has a duty to safeguard and promote the welfare of children in need in their area by providing suitable services to those children. The amendment requires a local authority to ascertain any such child's wishes in relation to those services and to give those wishes due consideration before determining what (if any) services to provide. Guidance issued under section 7 Local Authority Social Services Act 1970 in relation to section 17 already places considerable emphasis on listening to children and taking account of their wishes. Clause 45 gives statutory backing to that approach.

Clause 46: Information about individual children

199.     This clause amends section 83 of the Children Act 1989 by inserting a new subsection (4A). Section 83 (4A) enables particulars required to be transmitted by local authorities and voluntary organisations under subsections (3) and (4) respectively, to include information that relates to and identifies individual children. The type of information transmitted under subsections (3) and (4) will include name, a unique pupil reference number, and postcode. The information transmitted will be used to fulfil the Secretary of State's functions in relation to children and young people. In particular information on individual children will be used by the Secretary of State for statistical analysis in order to inform and review policy about children and young people. It will also be used to ensure that local practitioners have all the relevant and accurate information they need to carry out their functions.

Clause 47: Miscellaneous amendments for Parts 2 and 3

200.     Subsection (1) makes the functions relating to Local Safeguarding Children Boards in England and Wales (clauses 10 to 13 and 25 to 28) 'social services functions' within the meaning of the Local Authority Social Services Act 1970. One result of this, in England, is that the Commission for Social Care Inspection (CSCI) will have responsibility for inspecting LSCBs.

201.     Subsection (2) repeals the existing requirement on local authorities to produce a children's services plan (this is no longer thought to be necessary in view of the new duties being imposed on local authorities).

Other provisions

Clause 48: Fees payable to members of independent review panel

202.     Clause 48 amends section 12 of the Adoption and Children Act 2002 (c. 38) (independent review of determinations). Section 12 provides for the establishment of a review procedure in respect of qualifying determinations made by adoption agencies. This is intended to provide prospective adopters with a right to request a referral to a panel established by the appropriate Minister, where an adoption agency indicates that it is minded to turn down their application to adopt. Under subsection (4) of section 12 the appropriate Minister may delegate functions in relation to the panel to an organisation to perform on his behalf. Under subsection (3) of section 12, regulations may provide for the duties and powers of a review panel, its administration and procedures, appointment of panel members, payment of expenses, the duties of adoption agencies in connection with reviews and the monitoring of reviews.

203.     Clause 48 amends section 12(3)(d) (power to make provision as to the payment of expenses of members of a panel), by replacing the words 'expenses of' with 'fees to'. This will provide for regulations to be made to provide for the payment of fees to members of a panel constituted under section 12. This will help the organisation to which the appropriate Minister delegates his functions to recruit panel members and is consistent with provision in the Adoption and Children Act 2002 Act, which will allow adoption agencies to pay fees to their adoption panel members.

Clause 49: Reasonable punishment

204.     Clause 49 removes the defence of reasonable chastisement in any proceedings for an offence of assault occasioning actual bodily harm, unlawfully inflicting grievous bodily harm, causing grievous bodily harm with intent, or cruelty to a child. It also prevents the defence being relied upon in any civil proceedings where the harm caused amounted to actual bodily harm, which has the same meaning as it has for the purposes of section 47 of the Offences Against the Person Act 1861. The defence would still be available in proceedings before the Magistrates Court for common assault on a child.

205.     The clause removes the defence by providing that battery of a child cannot be justified as reasonable punishment. Battery is any unwanted application of force to the body of another and is more commonly called "assault". However it has long been recognised by the law that a parent or person with parental authority may use reasonable punishment to correct a child. This is the defence of reasonable chastisement or "reasonable punishment". Other defences to battery are not affected by clause 49.

206.     Subsections (1) and (2) remove the defence in relation to the offences mentioned above. The parent is thus in the same position as if he had assaulted an adult or a child over whom he exercised no parental role.

207.     Subsection (3) removes the defence in civil proceedings for any battery if the battery caused actual bodily harm. Subsection (4) provides that 'actual bodily harm' in subsection (3) has the same meaning as has been established in relation to criminal proceedings.

208.     Subsection (5) repeals section 1(7) of the Children and Young Persons Act 1933 in consequence of subsection (2)(c).

Clause 50: Power to give financial assistance

209.     This clause amends section 14 of the Education Act 2002 (c. 32) to extend the powers of the Secretary of State (in relation to England) or the National Assembly for Wales (in relation to Wales) to give, or make arrangements for the giving of, financial assistance. Subsections (2) and (3) detail the purposes of the new powers: the promotion of welfare of children and their parents, and the provision of support for parenting. Children are defined for these purposes as under twenty. These new purposes add funding powers for children's services to the existing broad education funding powers. The effect is to provide a statutory basis for giving financial assistance to activity across the new wider responsibilities of the Department for Education and Skills. These include responsibilities for children's services and parenting following the creation of the position of Minister for Children, Young People and Families.

Clause 51: Child safety orders

210.     This clause extends the existing circumstances in section 8 of the Crime and Disorder Act 1998 in which courts can make parenting orders and amends the power to make Child safety orders contained in sections 11-13 of the 1998 Act. At present, the only sanction for breach of a child safety order is a care order. That sanction is being removed by subsection (4). Instead, we are creating (by subsection (2)) the possibility of the making of a parenting order.

211.     Child safety orders can be made in a Family Proceedings Court when: a) a child below 10 has committed an act that would have been an offence were he 10 or over, b) imposing the order is necessary to prevent a child below 10 committing such an act, c) a child below 10 has contravened a ban imposed by a local child curfew scheme, or d) a child below 10 has behaved in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as the child.

212.     The order places the child under the supervision of a responsible officer from either a social services department or youth offending team, and requires the child to comply with specified requirements. The purpose of the requirements is to ensure the child receives appropriate care, protection, and support, is subject to proper control, and to prevent the repetition of the kind of behaviour which led to the order being made.

213.     Courts may already make a parenting order under section 8 of the 1998 Act when they make a child safety order. Subsection (2) creates an additional circumstance in which a court can make a parenting order. This is when a court determines that a child has failed to comply with a requirement of a child safety order. The court will only be able to make a parenting order in this circumstance where it is desirable in the interests of preventing a repetition of the kind of behaviour which led to the child safety order being made. All other provisions currently relating to parenting orders made in the same proceedings as child safety orders under section 8(1)(a) of the 1998 Act will apply equally to these new parenting orders.

214.     This new power allows a parenting order to be made at a later stage. It could be used when there were insufficient grounds to make a parenting order when the child safety order was made, for example, where it appeared that the parent had done everything he could to prevent the child misbehaving but it had since emerged that one would be desirable in the interests of preventing repetition of the behaviour which led to the child safety order being made. This may be because a parent is no longer co-operating, or that co-operation from a different parent or guardian is needed to secure the child's compliance in meeting the requirements of the child safety order.

215.     Section 11(4) of the 1998 Act restricts the maximum duration of a child safety order to three months other than in exceptional circumstances. Subsection (3) extends the maximum duration to 12 months. This gives more time to address the child's problems and is also in line with the maximum duration of a parenting order, with which the child safety order is usually linked. By making the permitted duration the same, an order on a child can be supported by a matching order on the parent over the same period to address the behaviour of the child.

216.     Subsection (4) removes from the court the power, when a child safety order is breached, to make a care order at a lower threshold than is required by section 31 of the Children Act 1989. This power had been seen as a barrier to the use of the child safety order. If the court believes that the parents, with appropriate support, could secure the child's compliance with the order, it could make a parenting order under subsection (2). If a parenting order had already been made with requirements mirroring the child safety order's requirements, the court could fine or impose a community sentence on the parent for breach of the parenting order. If the court concluded that the child is beyond parental control it could, under section 37 of the Children Act 1989, direct the local authority to consider applying for a care order. The court would also retain its power to vary or discharge the order.

217.     All other provisions relating to child safety orders under the 1998 Act will remain the same.


Part 1

218.     This part sets up the post of the Children's Commissioner. The costs of this are subject to more detailed work, but (subject to what is said below) are estimated at around £2.5 million per annum. The establishment of a Children's Commissioner will necessitate a new staff to carry out the Commissioner's functions. Clause 4 is a new function introduced since the Bill was first presented to Parliament. The Government will do further work on the cost implications of the additional duty and will decide on an appropriate addition to the Commissioner's annual budget after the implication of the Spending Review have been more fully worked out.

Parts 2 and 3

219.     The co-operation arrangements in clause 7 deliberately avoid imposing a particular solution, allowing local authorities to build on existing arrangements and avoid additional costs. The safeguarding provisions in clause 8 are about ensuring sufficient priority is given to safeguarding children within existing responsibilities and does not necessarily imply additional expenditure.

220.     The creation of information databases under clause 9 will clearly have significant expenditure implications, and potentially implications for manpower as well. But the scale of these will need to be determined in developing how the provision should be implemented. The Government will provide a full impact assessment when bringing forward regulations under this clause.

221.     Costs and manpower implications associated with setting up statutory Local Safeguarding Children Boards (clauses 10-13) will vary, depending on how existing Area Child Protection Committees work. The Government has indicated that the additional £100m Safeguarding Grant to local authorities in each of 2004-05 and 2005-06 can be used for the purpose of preparing for and establishing these boards.

222.     Clauses 14 and 15 have been designed to avoid imposing organisational change and hence significant cost. There may be some transitional costs for authorities in appointing a director of children's services, which will vary according to existing arrangements. In response to consultation the Government intends to ensure these are minimal these by allowing a significant period of time before commencing the requirement to have the director in place. This flexibility will minimise any manpower effects too.

223.     Any expenditure and manpower implications associated with clauses 16-20 will be identified alongside the development of the inspection framework and taken into account in planning for implementation.

224.     The implications of Part 3 of the Bill mirror those outlined above where similar provision is being made.

Part 4

225.     The provisions for devolution of CAFCASS functions in Wales will be neutral in public expenditure terms. A transfer of funding will be made from DfES to the National Assembly for Wales, following which any additional cost will be met from the Assembly's overall budget. Manpower implications are covered by the note on clause 34.

Part 5

    The following possible financial effects have been identified:

226.     Clauses 37 makes changes to the existing statutory framework. It is not thought that it will impose significant additional financial or manpower burdens on authorities. The potential cost and manpower implications of introducing a registration scheme are factors that will be taken into account in deciding whether to implement the regulation making powers in clauses 38 and 39.

227.     Clause 41 and Schedule 4 impact on the financial arrangements for registration of childcare providers, but the effect is expected to be minimal. Ofsted has estimated that the effects on its expenditure will be neutral.

228.     Clause 48 will result in some marginal additional cost for individual review mechanism panels.

229.     Clause 50 extends an existing grant-making power and as such broadens the scope for giving financial assistance from public funds.

Summary of the Regulatory Impact Assessment

230.     The Regulatory Impact Assessment is being placed in the Library of the House. Copies are available online at or from the Department for Education and Skills (contact Denise Walsh, 2T Sanctuary Buildings, London, SW1P 3BT tel. 0207 925 3788). It covers the effects described above in more detail alongside a consideration of how each provision affects the public, private and voluntary sectors. Overall, the provisions in the Bill have been designed to be flexible in their implementation to avoid placing a regulatory burden on providers. This will allow, for instance participation in co-ordinated planning, co-ordination and delivery to be proportionate, governed by guidance rather than statute. This means that any additional regulatory burden will be minimal.

231.     The potential impact of the information database and private fostering registration scheme will need to be assessed further and taken into account in deciding how, and in the latter case whether, to proceed.

European Convention on Human Rights

232.     The Department considers that the only clauses in the Bill which rise to any Convention issues are clauses 9 and 24 on information databases, clauses 37 to 40 on private fostering and clause 46 on information about individual children.

233.     In relation to information databases, the Department considers that while the creation of databases containing personal details about all children may constitute an interference with Article 8 rights, the interference is proportionate and justified under Article 8.2.

234.     The amendments to the law relating to private fostering made by clause 37 is an interference with the Article 8 rights of parents to arrange for others to care for their children and of individuals to act as private foster carers. The Department considers that it is justified in terms of Article 8.2 as being for the protection of the health and morals of the children whom it is proposed to foster privately and who are privately fostered. The Department considers that the same justification applies to the interference with parents' and private foster carers' Article 8 rights by the registration scheme which the Secretary of State and the National Assembly for Wales take a power to establish under clauses 38 and 39 respectively.

235.     The Department accepts that clause 46 which provides that the particulars required to be transmitted to the Secretary of State under section 83(3) and (4) of the Children Act 1989 may include particulars relating to and identifying individual children will be an interference with Article 8 rights. It is the Department's view that such an interference is justified in terms of Article 8.2 as fulfilling a pressing social need and will be in pursuance of a legitimate aim.

236.     Paragraph 10 of Schedule 1 provides that for the purposes of the law of defamation, any statement made by the Children's Commissioner in a report published under Part 1 has absolute privilege.

237.     In carrying out inquiries and investigations under the provisions in Part 1 the Children's Commissioner will be pursuing the legitimate aim of safeguarding and protecting children generally. The Department considers that by giving the Children's Commissioner absolute privilege under this provision, the Bill strikes a fair balance between the rights of the subject of a report and the need to ensure that the Children's Commissioner is not held back from conducting thorough and rigorous investigations by the fear of an action for defamation. The Children's Commissioner will be required to conduct an inquiry fairly and in accordance with normal public law principles. Accordingly, the Department is satisfied that interference with Article 6 rights caused by granting absolute privilege to statements made in the inquiry reports of the Children's Commissioner is justified as being in pursuit of a legitimate aim and proportionate.

238.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before second reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Secretary of State for Education & Skills has made the following statement:

    'In my view the provisions of the Children Bill are compatible with the Convention rights.'


239.     It is proposed that Part 1, which establishes the Children's Commissioner and clause 50, the power to give financial assistance, come into force on Royal Assent.

240.     Clauses 38 to 40 which create the power to establish a registration scheme for private foster carers in England and Wales, and clause 49, which limits the defence of reasonable punishment, come into force two months after Royal Assent.

241.     The rest of the Bill's provisions will be brought into force on dates appointed by the Secretary of State or, where specified, by the National Assembly for Wales by commencement order. In general, it is intended that most of the provisions will be implemented between 2004 and 2006, although in response to consultation it is intended to allow flexibility in the requirement to appoint a director of children's services.

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Prepared: 20 July 2004