Fifteenth Report of Session 2012-13 - Statutory Instruments Joint Committee Contents



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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