Protection of Children Bill

Protection of Children Bill - continued	House of Lords

back to previous text

General

Effect of inclusion in either list.

7. - (1) Where a child care organisation proposes to offer an individual employment in a child care position, the organisation-

(a) shall ascertain whether the individual is included in the list kept under section 1 above, or the list kept for the purposes of regulations made under section 218(6) of the 1988 Act; and

(b) if he is included in either list, shall not offer him employment in such a position.

(2) Where a child care organisation proposes to offer employment in a child care position to an individual who has been supplied by an organisation which carries on an employment agency, or an agency for the supply of nurses, there is a sufficient compliance with subsection (1) above if the child care organisation-

(a) satisfies itself that, on a date within the last 12 months, the other organisation ascertained whether the individual was included in the list kept under section 1 above, or the list kept for the purposes of regulations made under section 218(6) of the 1988 Act;

(b) obtains written confirmation of the facts as ascertained by that organisation; and

(3) It is immaterial for the purposes of subsection (1) or (2) above whether the individual is already employed by the child care organisation.

(4) Any reference in this section to inclusion in the list kept for the purposes of regulations made under subsection (6) of section 218 of the 1988 Act is a reference to inclusion in that list on the grounds mentioned in subsection (6ZA)(c) of that section.

Searches of both lists under Part V of Police Act 1997.

8. - (1) After subsection (3) of section 113 of the Police Act 1997 (criminal record certificates) there shall be inserted the following subsections-

	"(3A) If an application under this section is accompanied by a statement by the registered person that the certificate is required for the purpose of considering the applicant's suitability for a position (whether paid or unpaid) within subsection (3B), the criminal record certificate shall also state-
	(a) whether the applicant is included in the list kept under section 1 of the Protection of Children Act 1999, or the list kept for the purposes of regulations made under section 218(6) of the Education Reform Act 1988; and
	(b) if he is included in either list, such details of his inclusion as may be prescribed, including (in the case of the latter list) the grounds on which he is so included.
	(3B) A position is within this subsection if it is-
	(a) a child care position within the meaning of the Protection of Children Act 1999;
	(b) a position employment or further employment in which may be prohibited or restricted by regulations made under subsection (6) of section 218 of the Education Reform Act 1988;
	(c) a position such that the holder's access to persons aged under 19 may be prohibited or restricted by regulations under subsection (6A) of that section; or
	(d) a position of such other description as may be prescribed;
	and the reference to employment or further employment in paragraph (b) shall be construed in accordance with subsection (13) of that section."

(2) After subsection (6) of section 115 of that Act (enhanced criminal record certificates) there shall be inserted the following subsection-

	"(6A) If an application under this section is accompanied by a statement by the registered person that the certificate is required for the purpose of considering the applicant's suitability for a position (whether paid or unpaid) falling within subsection (3B) of section 113, the enhanced criminal record certificate shall also state-
	(a) whether the applicant is included in the list kept under section 1 of the Protection of Children Act 1999, or the list kept for the purposes of regulations made under section 218(6) of the Education Reform Act 1988; and
	(b) if he is included in either list, such details of his inclusion as may be prescribed, including (in the case of the latter list) the grounds on which he is so included."

The Tribunal.

9. - (1) There shall be a tribunal ("the Tribunal") which shall exercise the jurisdiction conferred on it by section 4 and regulations made under section 6 above.

(2) The Secretary of State may by regulations make provision about the proceedings of the Tribunal on an appeal or determination under section 4 or regulations made under section 6 above.

(3) The regulations may, in particular, include provision-

(a) as to the manner in which appeals are to be instituted or applications for determinations are to be made;

(b) as to the period within which appeals are to be instituted;

(d) for enabling any functions which relate to applications for leave or other matters preliminary or incidental to an appeal or determination to be performed by the President, or by the chairman;

(e) for the holding of hearings in private in prescribed circumstances;

(f) for imposing reporting restrictions in prescribed circumstances;

(g) as to the persons who may appear on behalf of the parties;

(h) for granting any person such discovery or inspection of documents or right to further particulars as might be granted by a county court;

(i) for obtaining a medical report in a case where the decision appealed against was made on medical grounds;

(j) for requiring persons to attend to give evidence and produce documents;

(k) for authorising the administration of oaths to witnesses;

(l) for the determination of appeals or issues or applications for leave without a hearing in prescribed circumstances;

(m) as to the withdrawal of appeals or applications for determinations;

(n) for the award of costs or expenses;

(o) for taxing or otherwise settling any such costs or expenses (and, in particular, for enabling such costs to be taxed in the county court);

(p) for the recording and proof of decisions and orders of the Tribunal;

(q) for enabling the Tribunal to review its decisions, or revoke or vary its orders, in such circumstances as may be determined in accordance with the regulations; and

(r) for notification of the result of an appeal or determination to be given to such persons as may be prescribed.

(4) Part I of the Arbitration Act 1996 shall not apply to any proceedings before the Tribunal but regulations may make provision corresponding to any provision of that Act.

(5) Any person who without reasonable excuse fails to comply with-

(a) any requirement imposed by the regulations by virtue of subsection (3)(f) above;

(b) any requirement in respect of the discovery or inspection of documents imposed by the regulations by virtue of subsection (3)(h) above; or

is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(6) An appeal shall lie to the High Court on a point of law from a decision of the Tribunal.

(7) The Schedule to this Act shall have effect with respect to the Tribunal.

Supplemental

Power to extend protection of Act.

10. - (1) The Secretary of State may by order made by statutory instrument provide that this Act shall have effect as if-

(a) the references to children in sections 1(1), 2(7)(b), 3(3)(b) and 4(3)(b) above and section 12(1) below included references to persons aged 18 or over who are suffering from mental impairment; and

(b) the references to a child in sections 2(2)(a), (7)(a) and (9)(a), 3(3)(a) and 4(3)(a) and (4) above included references to a person aged 18 or over who is suffering from such impairment.

(2) The power to make an order under this section shall include power to make such consequential, supplemental, incidental or transitional provision as the Secretary of State thinks fit.

(3) No order shall be made under this section unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.

Financial provisions.

11. There shall be paid out of money provided by Parliament-

(a) any expenditure incurred by the Secretary of State under or by virtue of this Act;

(b) any increase attributable to this Act in the sums payable out of money so provided under any other Act.

Interpretation.

12. - (1) In this Act-

"the 1988 Act" means the Education Reform Act 1988;

"agency for the supply of nurses" has the same meaning as in the Nurses Agencies Act 1957;

"child" means a person aged under 18;

"child care organisation" means an organisation-

(a) which is concerned with the provision of accommodation, social services or health care services to children or the supervision of children;

(b) whose activities are regulated by or by virtue of any prescribed enactment; and

"child care position" means a position which-

(a) is concerned with the provision of accommodation, social services or health care services to children or the supervision of children;

(b) is such as to enable the holder to have regular contact with children in the course of his duties; and

"the Consultancy Service Index" means the list kept under that name by the Secretary of State;

"employment"-

(a) means any employment, whether paid or unpaid and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract; and

(b) includes an office established by or by virtue of a prescribed enactment,

and references to an individual being employed shall be construed accordingly;

"employment agency" has the same meaning as in the Employment Agencies Act 1973;

"harm" has the same meaning as in section 31 of the Children Act 1989;

"mental impairment" means a state of arrested or incomplete development of mind which includes a significant impairment of intelligence and social functioning;

"organisation" means a body corporate or unincorporate or an individual who employs others in the course of a business;

"prescribed" means prescribed by regulations made by the Secretary of State;

"the Tribunal" means the tribunal established under section 9 above.

(2) Where part of an organisation fulfils the condition in paragraph (b) of the above definition of "child care organisation" and part of it does not, this Act shall have effect as if the two parts were separate organisations.

(3) A position is within this subsection if-

(a) employment or further employment in it may be prohibited or restricted by regulations made under section 218(6) of the 1988 Act; and

(b) it is not a position at an independent school which is a children's home for the purposes of Part VIII of the Children Act 1989.

(4) Regulations under this Act shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Transitional provisions.

13. - (1) Where-

(a) an individual who is or has been employed in a child care position has been referred by an organisation to the Secretary of State for inclusion in the Consultancy Service Index;

(b) the reference has not been determined at the commencement of section 2 above; and

(c) any of the conditions mentioned in subsection (2), or the condition mentioned in subsection (3), of that section was fulfilled in relation to the reference,

that section shall apply as if the reference had been a reference made by the organisation under subsection (1) of that section.

(2) For the purposes of subsection (1) above, a reference of an individual for inclusion in that Index is determined only when, following the reference-

(a) the individual is included (otherwise than provisionally) in the Index; or

(b) the Secretary of State determines that he should not be included in it.

(3) In relation to any time before the commencement of section 8 above, any organisation seeking to ascertain whether an individual to whom it proposes to offer a child care position or, in the case of an organisation which carries on an employment agency or an agency for the supply of nurses, with whom it proposes to do business is included in-

(a) the list kept under section 1 above; or

(b) the list kept for the purposes of regulations made under section 218(6) of the 1988 Act,

shall be entitled to that information on making application for the purpose to the Secretary of State.

(4) Subsection (3)(b) above is without prejudice to any right conferred otherwise than by virtue of that provision.

Short title, commencement and extent.

14. - (1) This Act may be cited as the Protection of Children Act 1999.

(2) This Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint; and different days may be appointed for different purposes.

(3) This Act, except section 8 and this section, extends to England and Wales only.

(4) Section 8 above and this section extend to Northern Ireland.

Prepared 5 May 1999