APPENDIX
2
S.I. 2012/2813: MEMORANDUM
FROM THE
DEPARTMENT FOR
EDUCATION
LEGAL
AID, SENTENCING
AND PUNISHMENT
OF OFFENDERS
ACT 2012 (CHILDREN
ACT 1989) (CHILDREN
REMANDED TO
YOUTH DETENTION
ACCOMMODATION) REGULATIONS
2012 (S.I. 2012/2813)
The Committee has requested a memorandum on the following
points:
Explain the intended purpose of regulation 4 and
how effect is given to that intention.
1. Regulation 4 of the LASPOA 2012 (Children
Act 1989) (Children Remanded to Youth Detention Accommodation)
Regulations 2012 ("the 2012 Regulations") is a saving
provision which provides that section 23(2) to (8) of the Children
Act 1989 continues to have effect for the purpose of making regulations
under section 23 of that Act. Its purpose is to ensure that regulations
made under section 23 in particular, to amend the Placement of
Children (Wales) Regulations 2007 (SI 2007/310) ("the 2007
Regulations"), which currently do not apply in relation to
a "relevant child" as defined in regulation 1(2) of
the 2012 Regulations can be amended in future so that certain
provisions in the 2007 Regulations can be applied to a relevant
child.
Explain why, given that section 104(1) of the
Legal Aid, Sentencing and Punishment of Offenders Act 2012 refers
only to a child remanded to youth detention accommodation, the
Department considers that it has authority to include the provision
made by regulation 5 in relation to children remanded to local
authority accommodation.
2. Section 104(2) of the Legal Aid, Sentencing
and Punishment of Offenders Act ("LASPOA") provides
as follows:
"(2) The Secretary of State may by regulations
provide for any Act or instrument made under an Act that applies
to a child looked after by a local authority to apply with modifications,
or not to apply, in relation to a child who is to be treated as
looked after by a designated authority by virtue of this Chapter."
3. The Department's view is that the power to
make regulations in subsection (2) applies in relation to a child
who is looked after as a result of being remanded to local authority
accommodation in accordance with section 91(3) of LASPOA, as well
as children who are "treated as looked after" by virtue
of section 104(1) of that Act. In coming to this view we place
reliance on the reference to "by virtue of this Chapter"
in subsection (2). We do not consider that the scope of the power
in subsection (2) is confined to only that category of children
covered by subsection (1). Had the intention been to confine
the scope of the power in subsection (2) only to those children
who have been remanded to youth detention accommodation, then
subsection (2) would have been drafted so as to cross refer only
to the category of children specified in sub-section (1).
DEPARTMENT FOR
EDUCATION
11 DECEMBER 2012
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