Children and Young Persons Bill [HL] - continued          House of Commons

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Education and training

Clause 20: Designated member of staff at school for pupils looked after by a local authority

91.     Clause 20 requires the governing body of a maintained school in England and Wales to designate a member of staff as having responsibility for promoting the educational achievement of looked after children who are registered pupils at the school (the "designated person"). In this context, "maintained school" includes community schools; foundation schools; voluntary including both voluntary aided and voluntary controlled schools; community special schools; foundation special schools; and maintained nursery schools. "Registered pupil" means a person who is registered as a pupil at a school (see further section 434 of the Education Act 1996).

92.     Guidance issued in England in May 2000 (The Education of Children and Young People in Public Care) recommended that all schools should have a 'designated teacher'. Similar guidance was issued in relation to Wales in 2001.

93.     The responsibilities of the designated person includes both pupils who are looked after by a local authority and those who are "relevant children" or "former relevant children" within the meaning of section 23A or 23C of the 1989 Act (in summary, persons who are no longer looked after but have been at some point since the age of 16). The designated person is also responsible for promoting the educational achievement of children and young persons at the school who have equivalent legal status under the law of Scotland or Northern Ireland.

94.     Subsection (3) enables the appropriate national authority by regulations to specify the qualifications and/or experience which are necessary to effectively perform the role of the designated person, and under subsection (4) the appropriate national authority may give guidance to which the governing body of the school must have regard when performing its functions under this provision.

Clause 21: Entitlement to payment in respect of higher education

95.     This clause adds to the duties that local authorities owe to "former relevant children" by amending section 23C of the 1989 Act to require local authorities (in addition to providing assistance under section 23C(4)) to pay a fixed sum to those who go on to pursue a course of higher education. The clause includes provision to prescribe by regulations the meaning of "higher education". The first exercise of this power will be subject to affirmative procedure (paragraph 25 of Schedule 2 to the Bill and see paragraph 18 for a description of affirmative procedure). The intention is to use the power to align the definition of higher education for these purposes with the definition used in the Education (Student Support) Regulations 2007. The intention is for the eligibility criteria for the payment (in terms of the courses attended) to be similar to those for student loans, as set out in regulation 6 of, and Schedule 3 to, these regulations.

96.     The amount of the payment will be set in regulations to be made by the appropriate national authority under section 23C(5B) which is inserted by subsection (2). The regulations will also deal with the eligibility criteria, the arrangements for making the payment (e.g. whether to be paid by instalments and if so the interval between payments) and the circumstances in which instalments may cease or payments must be repaid (e.g. if the young person ceases to attend a course). The duty to make the payment subsists while the young person follows a pathway plan, whether one made under section 23B or one made subsequently under section 23CA. The payment should not affect the young person's entitlement to other assistance with his educational or training needs under section 23C(4). In addition the payment will be exempt from income tax by virtue of an amendment to the Income Tax (Trading and Other Income) Act 2005.

97.     "Former relevant children" are defined in section 23C(1) of the 1989 Act and include those who are over 18 and who were either relevant children (within the meaning of section 23A) or eligible children (within the meaning of paragraph 19B of Schedule 2 to the 1989 Act and regulations made under sub-paragraph (3) of that provision) immediately before their 18th birthday.

Clause 22: Assistance to pursue education or training

98.     Currently all eligible, relevant and former relevant children (defined by paragraph 19B of Schedule 2 to, and sections 23A and 23C of the 1989 Act respectively) must have a personal adviser who will, in accordance with regulations made under section 23B, be involved in drawing up the young person's pathway plan, make sure that it is regularly reviewed, and that it is implemented. When the young person leaves care, and until they are at least 21, the personal adviser will in practice be responsible for performing the local authority's duty to keep in touch with them and ensuring that they receive the advice and support to which they are entitled.

99.     Clause 22, by inserting a new section 23CA into the 1989 Act, extends the duties of local authorities to appoint a personal adviser to include a former relevant child who informs the responsible authority (that is, the authority that formerly looked after him) that he is pursuing or intends to pursue a programme of education or training but to whom the local authority would otherwise owe no duty under section 23C because the young person is over 21 years of age and has completed (or abandoned) the programme set out in his original pathway plan. In relation to such a young person, who must be under 25 years (or such lower age as the appropriate national authority may prescribe), the local authority must also carry out an assessment of needs, prepare a pathway plan and provide such assistance as the person's educational and training needs require. The local authority may take into account any payment made under section 23C(5A) when making their assessment of his needs (section 23CA(10)).

100.     Section 23CA(6) requires the local authority to provide assistance (including appointment of a personal adviser and maintenance of the pathway plan) for as long as the young person continues to pursue the agreed educational or training programme, even where this goes beyond a young person's 25th birthday.

Clause 23: Extension of entitlements to personal adviser and to assistance in connection with education or training

101.     Section 23D(1) of the 1989 Act enables regulations to be made requiring local authorities to appoint personal advisers for certain groups of young people. This power has not been exercised. Subsection (1) of Clause 23 extends the upper end of the age range to which section 23D(1) applies so that regulations under that section will be able to require the appointment of a personal adviser for persons who are younger than 25.

102.     Subsection (2) extends the upper end of the age range to which the powers for local authorities to provide assistance towards expenses incurred by a young person in education or training apply to age 25.

Cash payments

Clause 24: Extension of power to make payments in cash

104.     Under section 17 of the 1989 Act local authorities have a duty to safeguard and promote the welfare of children within their area who are in need and, so far as is consistent with that duty, to promote the upbringing of such children by their families by providing a range and level of services appropriate to those children's needs. The services provided by a local authority in exercising this duty may include giving assistance in kind or, in exceptional circumstances, in cash; they may also include providing accommodation for the child, with or without his family (section 17(6)).

105.     This clause would remove the restriction on the making of cash payments by removing the phrase "in exceptional circumstances" from section 17(6). The intention is to allow local authorities to exercise a much wider discretion over the circumstances in which they make cash payments to those caring for children in need. The amendment will enable local authorities to provide regular and continuing financial support to children in need where this is assessed as being the most appropriate way to safeguard and promote their welfare.

106.     "Child in need" is defined in section 17(10) as a child who is unlikely to achieve or maintain a reasonable standard of health or development without provision of services; or a child who is disabled (defined in subsection (11)).

107.      A service may also be provided for a member of the child's family if its provision will safeguard or promote the child's welfare (section 17(3)). Any person who has parental responsibility for the child and any other person with whom he has been living is potentially eligible for this support (see the definition of 'family' in section 17(10)).

108.     Section 17(8) requires the local authority to assess the means of the child and his parents before providing any assistance. Local authorities may decide if the assistance (or its value) should be repaid and the conditions under which this should occur. Persons receiving assistance are, however, exempt from repayment whilst in receipt of certain social security benefits.

Care breaks

Clause 25: Breaks from caring for disabled children

109.     Clause 25 amends paragraph 6 of Schedule 2 to the 1989 Act (provision for disabled children) to impose a duty on local authorities to provide, as part of the range of services they provide for families, breaks which assist parents and others who provide care for disabled children to continue to do so, or to do so more effectively. The intention is that breaks should not only be provided to those struggling to care for disabled children but also to those for whom a break from their caring responsibilities will improve the quality of the care they provide. Local authorities must provide such services in accordance with regulations made by the appropriate national authority. The first exercise of the power to make regulations is subject to affirmative resolution (see paragraph 18 for an explanation of this procedure and sections 104(3A) and (3C) and 104A(3) and (5) of the 1989 Act inserted, respectively, by paragraphs 25 and 26 of Schedule 2 to the Bill).

Enforcement of care standards (Clauses 26 to 29)

110.     Under the provisions of Part 2 of the Care Standards Act 2000, a person who carries on or manages a children's home, a fostering agency, a residential family centre, an adoption support agency or a voluntary adoption agency must be registered with the registration authority. Conditions may be imposed in relation to registration, either at the point of registration or at any later date, and it is an offence to breach those conditions. There is a right of appeal to a Tribunal against a refusal to register a person or a decision to cancel registration. The registration authority in England is the Chief Inspector of Education, Children's Services and Skills and in Wales is the Welsh Ministers.

111.     Standards of provision in children's social care establishments and agencies are inspected by the registration authority for compliance with the respective regulations made under section 22 of the Care Standards Act 2000, or in the case of adoption agencies, under section 9 of the Adoption Act 1976 and section 9 of the Adoption and Children Act 2002. Each type of establishment and agency is subject to its own set of regulations e.g. the Children's Homes Regulations 2001.

112.     The Regulations impose various obligations on the person carrying on the home and the manager, for example, making sure staff employed at the home have the necessary qualifications and experience. There are also National Minimum Standards (NMS), published under section 23 of the Care Standards Act 2000, which are applicable to establishments and agencies and must be taken into account when they are assessed for compliance. The registration authority will consider the degree to which a children's home complies with the requirements in the regulations, with reference to the NMS, when making decisions regarding registration, the imposition of conditions for registration and enforcement action including proceedings for cancellation of registration or prosecution. The NMS are currently being reviewed by the Department and new NMS are expected to come into effect in 2009.

113.     Clauses 26 to 29 amend the Care Standards Act 2000 to confer additional powers and duties on the registration authority in relation to standards in children's social care settings. The children's social care settings affected by Clause 26 are those establishments and agencies regulated under Part 2 of the Care Standards Act 2000, including children's homes, fostering agencies, residential family centres, adoption support agencies and voluntary adoption agencies. Clause 27 (restriction on admissions) applies only to residential settings, i.e. children's homes and residential family centres.

Clause 26: Power of Chief Inspector where person is failing to comply with requirement relating to children's homes etc.

114.     This clause applies to England only. The clause inserts new section 22A into the Care Standards Act 2000. That section will enable the Chief Inspector to serve a "compliance notice" where he is of the opinion that an establishment or agency is not meeting the required standards, as set out in the relevant regulations and NMS.

115.     The notice may be served on the registered owner or proprietor of the establishment or agency as well as the person managing it.

116.     The clause outlines the required content of the notice including specifying how, in the view of the Chief Inspector, the establishment or agency is failing to meet the standards and the steps that need to be taken to remedy this (subsection (3)). A person failing to take these steps within the required timescale will be guilty of a criminal offence and may be fined accordingly (subsections (4) and (5)).

117.     Failure to act on the compliance notice is a ground for cancellation of registration. Subsection (1) of this clause amends section 14 of the Care Standards Act 2000 to that effect.

Clause 27: Notice restricting accommodation at certain establishments

118.     This clause inserts a new section 22B into the Care Standards Act 2000.

119.     Section 22B enables the Chief Inspector or, in Wales, the Welsh Ministers, (the registration authority) to impose a requirement preventing any new admissions of children to certain residential settings. Where the registration authority imposes such a requirement it is necessary for a notice to be served on each person who is registered in respect of the establishment concerned.

120.     The notice must set out the reasons for the notice being served and must explain the right of appeal (subsection (3)).

121.     The notice may be time-limited and may be revoked (subsection (4)). The notice is subject to a right of appeal to a Tribunal provided for in Clause 28.

Clause 28: Appeals etc. in relation to notices under section 22B of the Care Standards Act 2000

122.     This clause amends section 21 of the Care Standards Act 2000 to create new grounds for an appeal to the Tribunal, namely the serving of a notice restricting accommodation (as provided for in clause 27). Appeals must be made to the Tribunal within 28 days of the notice being served (subsection (3)). Upon hearing the appeal, the Tribunal may confirm the notice and the ensuing restriction on accommodation or uphold the appeal in favour of the provider.

123.     It is intended that, where the person who has been served a notice so elects, the process for hearing this appeal will be expedited. This will be achieved by amendments to the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002.

124.     Subsection (5) clarifies that the NMS should be taken into account when the registration authority is considering whether to issue a notice under new section 22B and when the Tribunal makes decisions about appeals regarding these notices.

Clause 29: Notification of matters relating to persons carrying on children's homes etc

125.     This clause places a duty on the Chief Inspector or, in Wales, the Welsh Ministers, to notify each local authority in England and Wales when certain enforcement action is taken. The clause inserts a new section 30A into the Care Standards Act 2000 to this effect.

126.     The enforcement action may be:

  • a decision to cancel registration;

  • bringing proceedings for an offence (such as the failure to comply with a notice under new section 22A or other offences as specified);or

  • service of a notice restricting accommodation (as provided for in new section 22B).

127.     The notification will alert local authorities to the underperformance of a provider. It is intended that, in the case of residential settings, and where a child (or children) in their care is currently provided with accommodation with that provider, local authorities will conduct a review as to whether those placements should continue.

128.     Subsection (3) enables the appropriate national authority to make regulations to specify the circumstances in which local authorities should be advised of an updated position (e.g. a prosecution is no longer proceeded with or a provider has successfully appealed a decision to cancel registration).

129.      Subsection (4) enables the making of regulations specifying the information to be contained in the notification (e.g. the name of the provider and of the relevant establishment or agency).

130.     Subsection (5) provides that a notification under this section may be transmitted electronically (as defined in subsection (7)) if the local authority has consented to this arrangement.

Emergency Protection Orders

Clause 30: Removal of restriction on hearing of application for discharge of emergency protection order

131.     Provision for Emergency Protection Orders (EPOs) is made in Part 5 of the 1989 Act. The circumstances in which an EPO will be granted, extended and discharged are set out in sections 44 and 45 of the Act. Section 44(1) provides for an EPO to be made for a period of up to 8 days (with a further extension of 7 days) if the court is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if:

    (a) he is not removed to accommodation provided by or on behalf of the applicant; or

    (b) he does not remain in the place in which he is then being accommodated.

The court must be satisfied that the child is likely to be in "imminent danger" if he is not removed from home.

132.     The provisions relating to the discharge of EPOs are contained in sections 45(9) to (11). In a recent judgment of the Northern Ireland High Court, it was held that Article 64(8) of The Children (Northern Ireland) Order 1995 which is identical to section 45(9) of the 1989 Act and provides that "no application for discharge of an emergency protection order shall be heard for 72 hours beginning with the making of the order" is contrary to Articles 6(1) and 8 of the European Convention on Human Rights (ECHR).

133.     The decision of the Northern Ireland High Court is not binding on the courts of England and Wales. However, the decision would be persuasive in these courts and, accordingly, clause 30 repeals section 45(9) of the 1989 Act to ensure that provisions for the discharge of Emergency Protection Orders are compatible with Articles 6 and 8 of the ECHR. The clause allows the court to hear an application to discharge an emergency protection order as soon as it is made.

Information and research (Clauses 31 to 33)

134.     The Children Act 2004 places an obligation on local authorities in England and Wales to set up Local Safeguarding Children Boards (LSCBs). A number of persons and bodies, including children's services authorities, NHS bodies and the police are represented on LSCBs.

135.     Local authorities rely on many different sources of information about child deaths including professionals, the public, and the media. Local registrars of births and deaths do not have a statutory power or a duty to provide information about the death of a child to LSCBs or other persons in the absence of a specific request for information about a particular child's death. There are also no statutory powers or duties for the Registrar General to provide child death information to the Secretary of State or to Welsh Ministers.

Clause 31: Supply of information concerning the death of children to Local Safeguarding Children Boards

136.     Clause 31 places a new duty on registrars to provide the LSCB in their sub-district with the following information in relation to the deaths of children (i.e. persons who were or may have been under 18 years of age at the time of death):

  • the particulars of death within 7 days of registering the death;

  • notification of any corrections made to the registrar for that sub district within 7 days of making such corrections; and

  • information about any certificate issued under section 24(2) of the Births and Deaths Registration Act 1953, within 7 days of issue.

137.     Subsection (9) requires LSCBs to make arrangements for the receipt of such notifications, and to publish these arrangements.

Clause 32: Power of Registrar General to supply information to national authorities

138.     Clause 32 enables the Registrar General to provide information about child deaths registered in England and Wales to the Secretary of State and to Welsh Ministers for research purposes.

Clause 33: Research etc. into matters connected with certain statutory functions

139.     Clause 33 amends subsections 83(1) and 83(2) of the 1989 Act to include LSCBs, to provide a statutory power to the Secretary of State and to local authorities to conduct research into the functions of LSCBs.

140.     Clause 33 further amends section 83(3) of the 1989 Act to provide that a local authority must at such times and in such form as the Secretary of State may direct transmit to him such particulars as he may require as to the performance by the LSCB for the local authority's area of all or any of their functions.

141.     The clause also amends the list of relevant enactments at section 83(9) of the 1989 Act for the purposes of subsections 83(1)(a) and 83(2)(a) of this Act, which gives statutory powers to the Secretary of State and to local authorities respectively, to conduct, or assist other persons, in conducting research into specified matters including the functions, of the Secretary of State, and for the purposes of section 83(3), which requires local authorities to provide information to the Secretary of State in respect of the performance of their functions under the relevant enactments. It amends the list of relevant enactments by adding:

  • Part 1 of the Adoption and Children Act 2002;

  • the Children Act 2004; and

  • the Children and Young Persons Act 2008 (assuming that the Bill receives Royal Assent).

Part 3 -Adoption and Fostering

Clause 34: Independent review of determination relating to adoption

142.     Clause 34 amends the existing powers in section 12 of the Adoption and Children Act 2002 which enable regulations to provide for the independent review of qualifying determinations, to ensure that the provisions are aligned with the new provisions that relate to the independent review of qualifying determinations in relation to local authority foster carers.

143.     Subsection (2) amends section 12 to clarify that the regulations are to provide for the application for a review to be made to the appropriate Minister, and that the review is to be by a panel constituted by that Minister. By virtue section 144(1) of the Adoption and Children Act 2002 and Schedule 11 to the Government of Wales Act 2006, "appropriate Minister" means, in relation to England, the Secretary of State and in relation to Wales, Welsh Ministers.

144.     Subsections (3) to (7) provide that the regulations may impose a duty to make a payment to the appropriate Minister of such sums as the appropriate Minister may determine, though the sums payable to the national authority must not, taking one financial year with another, exceed the costs incurred in performing the independent review functions. These provisions replace the existing powers under which it is the independent review panel which has a power to recover the costs of a review.

Clause 35: Extension of period allowed for making regulations under section 45 or 46 of the Children Act 2004

145.     Section 45 of the Children Act 2004 gives the Secretary of State the power to establish, through regulations, a scheme for the registration of private foster carers. Section 46 confers equivalent powers on the Welsh Ministers. These provisions allow the regulations to specify, for example, how a local authority should determine suitability of private fostering arrangements, the grounds on which individuals may be disqualified from private fostering, how individuals may appeal against decisions regarding their registration and how the registration scheme application would work in practice.

146.     Section 47 provides that if no regulations have been made under either section within fours years of Royal Assent, then the relevant section will cease to have effect. This operates independently in England and Wales, so if regulations are not made in England within the four year period, the power in section 45 (to make regulations in England) expires even if regulations have been made under section 46 in Wales (and vice versa).

147.     At present, the powers under these sections will lapse in November 2008. Clause 35 amends section 47 so that the powers will not lapse for a further 3 years, i.e. until November 2011.

148.     Private fostering is regulated by Part 9 of and Schedule 8 to the 1989 Act and the Children (Private Arrangements for Fostering) Regulations 2005/1533.

149.     A "privately fostered" child is one who:

    a.     is cared for by a person who is not a relative and who does not have parental responsibility and is provided with accommodation in that person's home, and;

    b. is under the age of 16, or under the age of 18 if they are disabled,

where the care and accommodation have been provided for more than 28 days (or where the intention is to accommodate for longer than 28 days). This is defined in section 66 of the 1989 Act.

Part 4 - Orders under Part 2 of the 1989 Act

Residence orders

Clause 36: Entitlement of relative to apply for a residence order

150.     Clause 36 provides that an application for a residence order may be made by a relative, without first seeking the permission of the court, in circumstances where the child has been living with them for one year immediately prior to the application. The clause inserts a new subsection (5B) in section 10 of the 1989 Act to that effect. The existing qualifying condition for relatives is that the child must have been living with them for a period of three years out of the last five years.

151.     Section 113 of the Adoption and Children Act 2002 amended the qualifying condition for a local authority foster carer applying for a section 8 order, including a residence order to a one year period. These clauses are intended to align the position of relative carers with local authority foster carers.

152.     A relative is defined in section 105 of the 1989 Act as a grandparent, brother, sister, uncle or aunt (whether of the full blood or half blood or by marriage or civil partnership) or step-parent.

Clause 37: Duration of residence orders

153.     Clause 37 provides that a residence order, unlike other section 8 orders, is to last until the child reaches the age of 18 unless the courts directs that the order should end earlier or another order is made discharging the residence order prior to that date. The intention is to provide enhanced security for the child where the holder of a residence order who is not the child's parent is caring for the child on a long term basis.

154.     At present, a residence order ceases to have effect when the child reaches the age of 16, unless the court is satisfied that the circumstances are exceptional e.g. the child has a learning disability. Section 114 of the Adoption and Children Act 2002 empowered the courts to direct in appropriate cases that a residence order made in favour of someone who is not the parent or guardian of a child may be extended until the child reaches the age of 18.

155.     The clause amends sections 9 and 12 of the 1989 Act to the effect described above.

Special guardianship orders

Clause 38: Entitlement of relative to apply for a special guardianship order

156.     Clause 38 mirrors the provision in Clause 36 above in relation to relatives applying for special guardianship orders and amends section 14A(5) of the 1989 Act to that effect.

Part 5 - Supplementary, General and Final Provisions (Clauses 39 to 45)

157.     Clauses 39 to 45 contain general provisions including those relating to the exercise of powers to make orders and regulations; general interpretation provisions, commencement, extent of the Bill, repeals and the short title of the Bill.


Clause 39 and Schedule 2: Minor and supplementary amendments to the 1989 Act

158.     Provisions in the Bill, notably clauses 9, 10, 11, 16, 17, 19 and 25, and Schedule 1 insert new provisions into the 1989 Act, primarily into Part 3 and Schedule 2. The new provisions reflect the current status of devolution under the Government of Wales Act 2006 and, where appropriate, refer to the "Welsh Ministers" directly, or to the Welsh Ministers as the "appropriate national authority". These references are not textually consistent with existing references in Part 3 of the 1989 Act to the "Secretary of State", which are to be read as references to the Welsh Ministers by virtue of the Government of Wales Act 2006. Therefore, in order to achieve clarity and textual consistency in the Parts of 1989 Act that are amended by this Bill, Clause 39 gives effect to Schedule 2, which amends Parts 3 and 7 of, and Schedule 2 to, the 1989 Act by substituting references to the Welsh Ministers or to the appropriate national authority, for existing references to the Secretary of State. Schedule 2 also inserts a new section 104A into the 1989 Act, which makes provision for regulations and orders made by the Welsh Ministers under Part 3 and certain other parts of that Act.


Clause 40: Orders, regulations and guidance

159.     Clause 40 provides that all subordinate legislation made under the Bill is to be made by statutory instrument. Any statutory instruments made by the Secretary of State under clause 1(6) or (7) (social work practices) or clauses 12 (independent reviewing officers) are subject to affirmative resolution procedure (subsection (2)). All other statutory instruments made by the Secretary of State will be subject to the negative resolution procedure (subsection (3)), except for commencement orders made under clause 44 which will not be subject to any parliamentary procedure. (See paragraph 18 for an explanation of the affirmative resolution procedure and the negative resolution procedure.)

160.     Subsection (4) of clause 40 mirrors subsection (2), and makes the exercise by the Welsh Ministers of their power to make regulations under clause 1(6) or 1(7) subject to approval by a resolution of the National Assembly for Wales, the equivalent in relation to Wales of the affirmative resolution procedure.

161.     Subsection (5)(a) provides for the exercise by Welsh Ministers of their power under clause 13 to create a new body to carry out functions in relation to Independent Reviewing Officers, or to confer those functions on themselves, to be made subject to approval by a resolution of the National Assembly for Wales (affirmative resolution procedure). Subsection (5)(b) provides for additional scrutiny by Parliament of the exercise the power under clause 13, following the passing of the resolution required by subsection (5)(a). The additional Parliamentary scrutiny is considered necessary because the power conferred on the Welsh Ministers by clause 13 extends beyond the current legislative competence of the National Assembly for Wales under the Government of Wales Act 2006.

162.     Subsections (6) and (7) make provision for the procedure to be followed by the First Minister (appointed under section 46 of the Government of Wales Act 2006) and by the Secretary of State, following the passing of the resolution required by subsection (5)(a).

163.     Subsection (8) removes the requirement in subsection (5)(b) for additional Parliamentary scrutiny following the passing of the resolution required by subsection (5)(a), in the event that an order is made under section 105 of the Government of Wales Act 2006 bringing the Assembly Act provisions into force. The effect of making such an order would be to substantially extend the legislative competence of the National Assembly for Wales, bringing the power conferred on the Welsh Ministers by clause 13 within the Assembly's legislative competence, with the result that the requirement for additional Parliamentary scrutiny of the exercise of the power in subsection (5)(b) would become inconsistent with the new stage of devolution, and therefore no longer be necessary.

164.     A commencement order made by Welsh Ministers under clause 44 is not to be subject to scrutiny by the National Assembly for Wales (subsection (11)). Any subordinate legislation made by the Welsh Ministers - other than subordinate legislation made under clause 1(6) or (7) , 13 or 44 - will be capable of being annulled by a resolution of the National Assembly for Wales.

Clause 42 and Schedule 3: Repeals

165.     Clause 42 introduces the repeal schedule (Schedule 3) which specifies the extent to which the enactments listed are to be repealed.


166.     The majority of the proposals in the Bill seek to ensure better value from existing programmes. However, there are additional costs from some elements of the Bill - amounting to approximately £70m. These costs will be met from within the Comprehensive Review Settlement for 2008-11. Further details are outlined in the accompanying impact assessment. The Secretary of State for Children, Schools and Families does not anticipate that any additional expenditure should fall on the Consolidated Fund or the National Loans Fund as a consequence of this Bill.


167.     There are no public service manpower commitments arising from the Bill which would give rise to additional requirements. The Secretary of State for Children, Schools and Families estimates that the overall effect of the Bill on public sector manpower would be negligible.


168.     The impact assessment for the Bill analyses the costs and potential benefits of the proposals and assesses their possible impact on race, gender and disability equality. Copies are available for Members in the Vote Office. It is also available online at and in hard copy from the Department of Children, Schools and Families. The provisions in the Bill are largely focused on public sector reforms and will not have significant implications for the private and voluntary sectors as a whole.


169.     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 European Convention on Human Rights (as defined by section 1 of that Act).

170.     Having considered the possible implications, the Secretary of State for Children, Schools and Families believes that the Children and Young Persons Bill will be compatible with the European Convention on Human Rights. There are some areas where it would be helpful to provide further comments for clarification, as follows.

Part 1 - Delivery of Social Work Services for Children and Young Persons

171.     Clause 1 enables the local authority to make arrangements with a body corporate (referred to in Part 1 as a "provider of social work services") for the discharge by the body of some or all of that authority's social services functions in relation to individual children who are looked after by the authority and its functions in relation to care leavers.

172.     The authority's functions in relation to looked after children include functions the exercise of which are likely to engage Convention rights, for example, the exercise of parental responsibility by the local authority where the child is subject to a care order. Certain functions are excluded - the authority's functions in relation to independent reviewing officers and its functions in relation to making arrangements for adoption (unless the body is also a registered adoption society).

173.     Clause 6 makes provision for these arrangements to be piloted in the first instance and, if the pilots are successful, the enabling power will be extended to all local authorities. In that event, all providers of social work services will be regulated as agencies under the Care Standards Act 2000 (clause 4). The 2000 Act provides for the registration and inspection of establishments and agencies such as children's homes and independent fostering agencies.

174.     A provider of social work services in discharging the functions of the local authority will be exercising functions of a public nature and as such will be a "functional" public authority for the purposes of section 6(3)(b) of the Human Rights Act 1998. The provider will therefore be under a duty to act compatibly with Convention rights and will be directly liable for any breaches of Convention rights, but only to the extent that it does carry out functions of a public nature and is not performing private acts. Clause 3, which makes provision in relation to the effect of arrangements under clause 1, provides that the local authority will be liable for the acts and omissions of the provider save in respect of any act of a private nature done by the provider. This ensures that the local authority has no greater liability under the Human Rights Act for the acts of the provider, than the provider itself.

Clauses 27 and 28: Power to service notice restricting accommodation at certain establishments and appeals in relation to these notices

175.     Clauses 27 and 28 insert a new power for the registration authority to serve a notice on a registered proprietor of a children's home or a residential family centre, requiring that no new child is accommodated at that establishment, and provide a right of appeal to the Care Standards Tribunal against service of such a notice.

176.     The Article 1 Protocol 1 right to protection of property could be engaged by this new power, in that the imposition of a restriction may have a detrimental financial effect on a person carrying on an establishment or agency. However, the provider would not be subject to a notice restricting accommodation unless he had failed to comply with statutory requirements.

177.     The registration authority is required by the clause to specify the reasons for serving the notice. This provision is intended to encourage the use of the power in a proportionate manner, taking account of the relevant circumstances. There will also be a mechanism for expediting the hearing of the appeal thereby addressing any potential Article 6 concerns.

Clause 30: Removal of restriction on hearing of application for discharge of emergency protection order

178.     Clause 30 repeals section 45(9) of the 1989 Act and is made in response to a recent Northern Ireland High Court judgement. The provision removes the 72-hour moratorium on the court's powers to hear an application to discharge an EPO, thereby ensuring that the EPO procedure is compatible with the Convention.

Schedule 2: Independent review of determinations relating to local authority foster parents

179.     Paragraph 4 of Schedule 1 provides the power by regulation to establish a procedure under which decisions on suitability to foster a child can be reviewed by an independent panel. Article 6 rights are not engaged as the review is an addition to the current decision-making process rather than replacing any part of it and there is recourse to judicial review proceedings.


180.      Clause 44 of the Bill makes provision for commencement. The provisions of the Bill will be brought into force by way of a commencement order made by the Secretary of State in relation to England, and the Welsh Ministers in relation to Wales, with the exception of:

  • clause 8 (which applies to England only) and Part 5 (except clause 42 and Schedule 3 (repeals)), which come into force on Royal Assent;

  • an order bringing subsection (2) of clause 11 into force in relation to Wales requires the consent of the Secretary of State;

  • Orders bringing clauses 18 and 19 into force are to be made by the secretary of State in relation to England and Wales but require the consent of the Welsh Ministers;

  • before making an order bringing clauses 31 and 32 into force the Secretary of State must consult Welsh Ministers

  • paragraph 4 of Schedule 2, which comes into force in accordance with clause 44(9).


Care leavers

The expression "care leavers" includes for the purposes of clause 1 of the Bill:

  • relevant children within the meaning of section 23A of the 1989 Act (that is, 16 and 17 year olds who have been looked after for at least 13 weeks attaining the age of 14 and have been looked after at some time while 16 or 17 and are no longer looked after);

  • former relevant children within the meaning of section 23C of the 1989 Act (that is, young people aged over 18 years who were "looked after" for at least 13 weeks immediately before their 18th birthday or who were relevant children; and

  • persons qualifying for advice and assistance within the meaning of section 24(1) of the 1989 Act.

Children in Care/Looked After Children

"Children in care" or "children in public care" are the expressions used by practitioners and in publications to describe children who are looked after by a local authority under Part 3 of the 1989 Act. Strictly speaking, the expression "in care" should only be used in respect of a child who is in the care of a local authority by virtue of a care order made under section 31 (1) of the 1989 Act or an interim care order made under section 38 CA 1989. Whereas "looked after children" refers to children who are the subject of care orders or interim care orders, or who have been provided by the local authority with accommodation for more than 24 hours either under section 20 (sometimes referred to as "voluntary accommodation") or for their own protection or by virtue of an order made in criminal proceedings (under section 21); or who have been placed or authorised to be placed with prospective adopters by a local authority (but not a registered adoption society).

CAFCASS - Children and Family Court Advisory and Support Service

A non-departmental public body (NDPB) established on 1 April 2001 as a dedicated national service to promote the best interests of children involved in family court proceedings in England. In Wales, equivalent functions are performed by Welsh Ministers. CAFCASS looks after the interests of children involved in family proceedings, for example, when parents who are separating or divorcing cannot agree on arrangements for their children. It works with children and their families, and then advises the courts on what it considers to be in the children's best interests.

Director of Children's Services (DCS)

The Children Act 2004 required every top-tier or unitary local authority in England to appoint a DCS for the purposes of authorities' education and social services functions for children, and any health functions for children delegated to the authority by an NHS body.

Foster care

Foster care refers to a type of placement in which the child lives with an individual in their family home. Local authority foster carers (that is a foster carer with whom a child has been placed under section 23 (2) of the 1989 Act) must be approved by fostering services registered under the Care Standards Act 2000.

Independent Reviewing Officer (IROs)

Independent reviewing officers are registered social workers who are independent of the management of the cases of children in care that they review (defined in relation to England, in regulation 2A of the Review of Children's Cases Regulations 1991 as amended by Statutory Instrument 2002/1419, and in relation to Wales, in the Review of Children's Cases (Wales) Regulations 2007). Since September 2004, local authorities have been required to appoint independent reviewing officers to chair all statutory review meetings for children in care. They must monitor the local authority's performance in relation to the review, working with them to ensure children's needs are being met.

Local Safeguarding Children Boards (LSCBs)

LSCBs were established in relation to England under section 13 of the Children Act 2004. The equivalent provision in relation to Wales is section 31 of that Act. The membership of LSCBs includes local authorities, health bodies, the police and others. They are the main statutory mechanism to coordinate and ensure the effectiveness of their member agencies in safeguarding and promoting the welfare of children.

National Minimum Standards

The National Minimum Standards set out the minimum that is expected of providers of specific services, such as fostering services and children's homes. They are enforced through regulations made under the Care Standards Act 2000.

Out of authority placement

Refers to an arrangement in which a child is placed in accommodation outside the boundaries of the local authority which is its corporate parent. In these circumstances the placing authority is required to notify the authority in which the child is placed so that arrangements to meet the child's needs can be made.

Parental responsibility

Section 3 (1) of the 1989 Act defines parental responsibility as "all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and his property." Local authorities share parental responsibility with the birth parents for children in care under a care order. The provision of local authority accommodation under section 20 of the 1989 Act, however, has no effect on parental responsibility and parents may remove their children from such accommodation at any time, without notice.

Personal Adviser (PA)

Connexions personal advisers provide information, advice and guidance, support for young people aged 13 to 19, including vulnerable young people requiring more substantial one-to-one support. Their key objective is to support young people to remain in learning and to fulfil their potential. Most looked after children and care leavers (both relevant children and former relevant children) are entitled to a personal adviser, who will work with them to develop their pathway plan that sets out the services that will be provided to assist their transition to adulthood and independence.


In social care, placement refers to the accommodation (i.e. physical living situation) in which a child in care is "placed" by the local authority; this reflects the wording used in the 1989 Act, in particular section 23. A new definition of "placement" is provided in new section 22C (6), substituted for section 23 of the 1989 Act by clause 9 of the Bill. A placement may be with foster carers or in a residential children's home, for example.

Primary Care Trust

Primary care trusts (PCTs) are local free-standing NHS statutory bodies, responsible for planning, providing and commissioning health services for the local population. The government sees PCTs as the cornerstone of the NHS. Established under the provisions of the Health Act 1999, they provide all local GP, community and primary care services, and commission hospital services from other NHS trusts.


A relative is defined in section 105 of the 1989 Act as "in relation to a child, [..] a grandparent, brother, sister, uncle or aunt (whether of the full blood or half blood or by marriage or civil partnership) or step-parent."

Special guardianship

A Special Guardianship Order made under section 14B of the 1989 Act gives carers, such as grandparents or existing foster parents, parental responsibility, which they can exercise to the exclusion of other people with parental responsibility (except other special guardians) and responsibility for all aspects of caring for the child or young person, and for taking decisions to do with their upbringing. Special Guardianship preserves the basic legal link between the child or young person and their birth family, and the special guardian is entitled to an assessment of his need for support services (section 14F).

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Prepared: 27 March 2008