Children's Wellbeing and Schools Bill

Written evidence submitted by Worcestershire County Council to The Children’s Wellbeing and Schools Bill Committee (CWSB258). 

This evidence is concerned specifically with section 20 of the Bill: Employment of Children in England.

· The Bill proposes to amend the Children and Young Persons Act 1933 so that subsection 17(A)(7) of the Act will read: "Nothing in this section, or in regulations made under any provision of this section, prevents a child from doing anything – (a) under the authority of a licence granted under this Part, or (b) in a case where by virtue of subsection (3) of section 37 of the Children and Young Persons Act 1963 no licence under that section is required for the child to do it."

The phrase "under the authority of a licence granted under this Part" means a licence granted under Part II of the 1933 Act, that is, a licence granted by a justice of the peace for a child to go abroad for the purpose of performing for profit.

However, the granting of a licence for a child from England to take part in a performance, or to work as a paid model, or to undertake a paid sporting activity, in Great Britain or on the island of Ireland, is dealt with by subsection 37(1) of the Children and Young Persons Act 1963: Children and Young Persons Act 1963.

Therefore, the relevant clause, (a), in the newly inserted subsection 17(A)(7), should read, "under the authority of a licence granted under this part or under subsection (1) of section 37 of the Children and Young Persons Act 1963."

· The restrictions on the hours and times of employment under subsection 17(A)(1) of the 1933 Act, as inserted by the Bill, will continue to refer to "any day on which the child is required to attend school" and "any week in which the child is required to attend school", and as such those specific provisions will not apply to an electively home educated child in so far as that child is not "required to attend school."

Subsection (17)(A)(6) of the 1933 Act, as amended, will empower the Secretary of State to "make provision (subject to subsection (1) and regulations under subsection (2)) – (a) specifying the number of hours in each day, or in each week, for which children may be employed, and the times of day at which they may be employed; (b) specifying the intervals to be allowed to children for meals and breaks, when in employment; (c) about entitlement to leave."

Will the Secretary of State take that opportunity to specify the permitted hours and times of employment, required meal and rest intervals, and leave entitlements, for electively home educated children whose employment, as mentioned above, is not circumscribed by any provisions in the 1933 Act which refer to a day on which or a week in which a child is "required to attend school."

· Subsection 30(1) of the 1933 Act, in respect of provisions relating to the employment of children, states that: "A person who assists in a trade or occupation carried on for profit shall be deemed to be employed notwithstanding that he receives no reward for his labour."

The most recent UK government guidance on the employment of children, published by the then Department for Children, Schools and Families (DCSF) in 2009, stated that: "In today’s circumstances DCSF considers that any occupation where the aim is to make a surplus would be considered as a trade or occupation carried on for profit so, in DCSF’s view, unpaid work at a charity shop would count as employment, but not, for example, unpaid work at a youth club."

It is common for children to volunteer in charity shops for a temporary period in pursuance of a Duke of Edinburgh’s Award, which creates uncertainty as to whether that ‘employment’ is subject to the 1933 Act and to local authority byelaws which have hitherto been made under the Act to further regulate the employment of children.

Does the Secretary of State have a view on whether a child volunteering in a charity shop in pursuance of a Duke of Edinburgh’s Award is being ‘employed’ within the meaning of the 1933 Act, and if their view is that in those circumstances a child is not being employed within the meaning of the 1933 Act, will they make that explicit via subsection 17(A)(4)(b) of the 1933 Act, as amended by the Bill, which will empower the Secretary of State to provide, by regulations, "that subsection (3) [that is, the requirement for a local authority employment permit] does not apply in specified cases" of ‘employment.’

· Subsection 1(1) of the Employment of Women, Young Persons, and Children Act 1920, which is still in force, states that "no child shall be employed in any industrial undertaking". Please see here: Employment of Women, Young Persons, and Children Act 1920.

The Schedule to that Act provides a definition of "industrial undertaking." Please see here: Employment of Women, Young Persons, and Children Act 1920.

The most recent UK government guidance on child employment, that published by the DCSF in 2009 (as referred to above), stated, in respect of the provisions relating to the employment of children in the 1920 Act, that "it forbids employment in industrial undertakings rather than forbidding any particular type of employment. So employment in, for example, the office of a road haulage firm would be forbidden because the road haulage firm would be an industrial undertaking."

To employ a ‘reductio ad absurdum’, the logic of the position taken in the UK government guidance from 2009 is that the provisions of the 1920 Act would forbid a child, not only from working in the office of a road haulage firm (to pursue the scenario), but also from working at home in support of that firm, if, for example, the child’s parent was a director of the company and it was proposed for the child to undertake some basic computer-based administrative work at home via a remote network connection.

The Bill is proposing to amend the 1933 Act so that subsection 17(A)(1)(c) will read: "A child may not be employed to do work of a description specified in regulations made by the Secretary of State." In view of that, will the Secretary of State consider using the new regulations to prohibit a child from doing the types of work that are covered by the definition of "industrial undertaking" in the 1920 Act, while at the same time, via the Bill or another mechanism, consider amending or repealing the relevant sections of the 1920 Act in so far as that Act is now over 100 years old and may no longer be deemed ‘fit for purpose’ in some respects.

· The Bill is not proposing any amendments to section 20 of the 1933 Act, which regulates street trading by children: Children and Young Persons Act 1933.

Subsection 20(1) of the 1933 Act prohibits a child from engaging or being employed in street trading, but that is qualified by subsection 20(2) which empowers a local authority to "make byelaws authorising children who have attained the age of fourteen years to be employed by their parents in street trading to such extent as may be specified in the byelaws, and for regulating street trading under the byelaws by persons who are so authorised to be employed in such trading; and byelaws so made may distinguish between persons of different ages and sexes and between different localities", and the byelaws may or should contain supplementary provisions of the type described in that and the following subsection.

The Bill is proposing for local authority byelaws (which may currently, in practice, permit a child aged 14 or over to engage or be employed in street trading in certain prescribed circumstances) to be replaced by a new set of (national) regulations, made by the Secretary of State; and so will those regulations make provision for children who have attained a certain age to engage or be employed in street trading in certain specified circumstances.

It is worth noting that subsection 30(1) of the 1933 Act, which is also left untouched by the Bill, states in this regard that: "The expression ‘street trading’ includes the hawking of newspapers, matches, flowers and other articles, playing, singing or performing for profit, shoe-blacking and other like occupations carried on in streets or public places."  The references to "the hawking of matches" and "shoe-blacking" now appear especially anachronistic.

It is worth noting too that as the definition of street trading in the 1933 Act includes "playing, singing or performing for profit…in streets or public places", the 1933 Act in and of itself prohibits a child from busking for ‘tips’ in streets or public places in any circumstances.

· Under Schedule 4, Part 1 of the Safeguarding Vulnerable Groups (SVG) Act 2006 (Safeguarding Vulnerable Groups Act 2006), a person is working in DBS "regulated activity", and their employment is subject to an enhanced DBS check with Children’s Barred List check, if the following applies:

- They are providing teaching, training, instruction, advice or guidance to, or caring for or supervising, a child in the course of the child’s employment, where the child has not attained the age of 16; and

- They are carrying out this activity ‘intensively’ or ‘frequently’ – that is, on more than 3 days in a 30-day period, or once a week or more often; and

- They are a person "in respect of whom arrangements exist principally for [the] purpose" of them carrying out the activity. 

That last clause as it appears in the SVG Act 2006 is somewhat opaque, but one might interpret it as meaning that if a job description has been drawn up giving a person specific responsibility (potentially alongside other responsibilities) for training, instructing, advising or supervising, etc. a child (who is under the age of 16) in the course of the child’s employment, where that person is carrying out the activity ‘intensively’ or ‘frequently’ (as defined above), then the person is working in DBS "regulated activity" and their employment is subject to an enhanced DBS check with Children’s Barred List check.

However, it may that a lack of awareness of this part of the SVG Act 2006, or the difficulty in interpreting the clause "in respect of whom arrangements exist principally for [the] purpose", means that it is not being implemented in circumstances where perhaps it should be (or was intended to be when the legislation was introduced).

Will the Secretary of State take the opportunity provided by the Bill, in making new regulations for the employment of children and through any accompanying guidance, to clarify the circumstances when they believe that a person who is working alongside a child should have undergone an enhanced DBS check with Children’s Barred List check (with reference to the existing definition of "regulated activity" in the SVG Act 2006), and to illustrate this with concrete examples relating to the types of workplace in which children may commonly be employed.

February 2025.