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These notes refer to the Children and Young Persons Bill [HL] as introduced in the House of Lords on 14th November 2007 [HL Bill 8]
CHILDREN AND YOUNG PERSONS BILL [HL]
1. These explanatory notes relate to the Children and Young Persons Bill [HL] as introduced in the House of Lords on 14th November 2007. They have been prepared by the Department for Children, Schools and Families in order to assist the reader in understanding the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a section or part of a section does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUND
3. In June 2007 the Government published a White Paper, Care Matters: Time for Change. This set out the Government's plans to improve the outcomes of children and young people in care. The White Paper built on the proposals in the Green Paper Care Matters: Transforming the Lives of Children and Young People in Care which was published for consultation in November 2006 and the conclusions of four working groups established to investigate best practice in supporting those in care. The Green Paper and a summary of the responses to it can be found at www.dcsf.gov.uk/consultations and the White Paper and working group reports at www.dcsf.gov.uk/publications/timeforchange/. The White Paper included a commitment to amend the legislative and regulatory framework around children in care including amendments to statutory guidance and National Minimum Standards.
4. The purpose of the Bill is to reform the statutory framework for the care system by implementing the proposals in the White Paper that require primary legislation. This forms part of the Government's programme to ensure that children and young persons receive high quality care and support. The Bill also includes provisions in relation to private fostering, child death notification to Local Safeguarding Children's Boards, the powers of the Secretary of State to conduct research and applications for the discharge of Emergency Protection Orders.
5. In summary, the Bill:
6. The Bill extends to England and Wales, with the exception of the provision to enable the Chief Inspector to issue a compliance notice where they have concerns that standards in residential care settings are not being met, which applies to England only. The Bill does not extend to Scotland and Northern Ireland.
7. The Bill confers various powers to make subordinate legislation. In general, these are exercisable by the Secretary of State, in relation to England and the Welsh Ministers, in relation to Wales.
8. The Bill is in 5 parts. Part 1 (clauses 1 to 6) deal with arrangements for the provision of social work services for children and young persons.
9. Part 2 (clauses 7 to 28) of the Bill principally amends Part 3 of the Children Act 1989. It concerns the duties of local authorities when providing accommodation for children they look after; the appointment and functions of IROs and provides a power for the establishment of a national IRO service. It provides for arrangements to be made for visits by local authority representatives to children and young persons living away from home; and for the appointment of independent visitors to looked after children. In addition it imposes a duty on governing bodies of maintained schools to designate a member of staff for looked after children and extends the entitlements of former relevant children to the appointment of a personal adviser and other assistance in connection with education or training. It amends the Care Standards Act 2000 to make provision for the enforcement of care standards in children's homes and other settings. It enables registrars to provide information to local safeguarding children boards regarding child deaths. It extends the powers of local authorities to make cash payments to children in need and their families and the powers of the Secretary of State to carry out research on the functions of local authorities. It removes restrictions on the court's powers to hear an application to discharge an Emergency Protection Order.
10. Part 3 (clauses 29 to 31) amends Schedule 2 of the 1989 Act, to allow for an independent review of decisions on the suitability of local authority foster parents. It amends the existing powers in section 12 of the Adoption and Children Act 2002 that enable regulations to provide for the independent review of qualifying determinations and extends the period allowed for making regulations to establish a registration scheme for private fostering.
11. Part 4 (clauses 32 to 34) makes amendments to part 1 of the Children Act 1989 in relation to residence orders and special guardianship orders.
12. Part 5 contains general and final provisions.
13. There is one Schedule that deals with repeals.
14. The Bill amends the public law framework for safeguarding and promoting children's welfare; that is, the services to be provided to support children and their families and the procedures to protect children who are at risk of suffering harm. The key legislation to be amended by this Bill is the 1989 Act. Important amendments have previously been made to Parts 3-5 in particular by the Children (Leaving Care) Act 2000, the Adoption and Children Act 2002 and the Children Act 2004. The Bill will also amend the Care Standards Act 2000 and the Adoption and Children Act 2002.
15. Unless otherwise stated, in these notes, the "appropriate national authority" means the Secretary of State for Children, Schools and Families in relation to England and the Welsh Ministers in relation to Wales. The "registration authority" refers to the HM Chief Inspector for Education, Children's Services and Skills (the Chief Inspector) in England and, when applied to Wales, the Welsh Ministers. The "1989 Act" refers to the Children Act 1989.
16. Clause 1 enables local authorities to enter into arrangements with a body corporate (referred to in this Part as a "provider of social work services") for the discharge by that body of some or all of the authority's social services functions in relation to:
referred to in subsection (2) as relevant care functions. Social services functions are defined in section 1A of the Local Authority Social Services Act 1970 (1970 Act). Subsection 5 provides that the arrangements may make provision about the continuing exercise of the local authority functions where the child ceases to be looked after by the local authority. Subsection (6) enables the appropriate national authority to make regulations specifying functions which are or are not to be treated as relevant care functions. These powers are subject to affirmative resolution, i.e. before the powers can be exercised, a draft Order must be laid before both Houses of Parliament and expressly approved before it can be "made" (signed) by the Secretary of State. This contrasts with the more common "negative" procedure for exercising delegated powers that permits the statutory instrument to be laid before both Houses after it has been "made"; the instrument is subject to revocation if a resolution for annulment is passed within 40 days.
17. A provider of social work services cannot be a local authority (subsection (3)(a)) and regulations may make further provision about the bodies corporate which may, or may not, be providers of social work services (subsection (7)). This power is subject to affirmative resolution.
18. In addition the appropriate national authority may by regulations provide that arrangements may be entered into for no less than a prescribed minimum period or for more than a prescribed maximum period.
19. Clause 2 places restrictions on the functions that may be the subject of arrangements under this Part. The excluded functions (set out in subsection (2)) are functions in relation to the appointment of independent reviewing officers and the local authority's functions as an adoption agency (unless the provider of social work services is also a registered adoption society). The intention is that independent reviewing officers will be one of the mechanisms by which local authorities quality assure the work carried out by providers of social work services. Making arrangements for adoption are excluded as the intention is that providers of social work services are to focus on the provision of support to looked after children, particularly those who are likely to remain in the long term care of the authority.
20. Subsection (5) provides that a local authority must not enter into arrangements under Part 1 unless it is satisfied that the functions will be discharged by, or under the supervision of, registered social workers.
21. The power to enter into an arrangement with a provider of social work services is to be a social services function (clause 5 amends Schedule 1 to the 1970 Act). This means that in making arrangements under this Part the local authority must act under any general guidance of the appropriate national authority issued under section 7 of the 1970 Act and comply with any directions issued under section 7A of that Act.
22. Clause 3 provides that any acts or omissions of a provider of social work services or their employees are to be treated as the acts and omissions of the local authority. Subsection (2) provides that this does not affect the rights and liabilities of the local authority and the provider, does not apply to criminal offences and does not prevent any civil proceedings being brought against the provider. This leaves in place the liability of the provider and that the local authority will in addition be equally and jointly liable for the acts of the provider. For example in tort the provider is liable and the local authority is deemed liable under clause 3.
23. Clause 6 enables the piloting of arrangements under this Part for a period of up to five years. The intention is to pilot the arrangements in a number of local authorities. The pilots will be evaluated and subject to that evaluation the power may 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 and subject to registration and inspection by the Chief Inspector for Education, Children's Services and Skills. Subsection (3) provides that sections 1 to 5 cease to have effect if the piloting period comes to an end after 5 years without clause 4 having been commenced. Subsections (4) and (5) provide that if clause 1 is not commenced within a period of 5 years then sections 1 to 5 cease to have effect in relation to England or, as the case may be, Wales.
24. Every local authority should have a plan for the future care of each of the children it looks after. Care plans should describe the child's needs, set out the services that will be provided to meet those needs and the local authority's long term plan for the child. The care plan should include amongst other things:
25. At every stage of care planning, where decisions are taken that will affect the child's life, the wishes and feelings of the child must be ascertained and given due consideration, in addition to the wishes and feelings of their parents and carers (section 22 of the 1989 Act). Due consideration must also be given to the child's religious persuasion, racial origin and cultural and linguistic background. Care plans must be reviewed in accordance with regulations i.e. within 4 weeks of the date on which the child begins to be looked after, the second review must be within 3 months after that date, and subsequently at no more than 6 monthly intervals.
26. The content of care plans and arrangements for reviews is determined by a combination of regulations. In England, these are the Arrangement for Placement of Children (General) Regulations 1991 and the Review of Children's Cases Regulations 1991, made under the 1989 Act. In relation to Wales, the Placement of Children (Wales) Regulations 2007 and the Review of Children's Cases (Wales) Regulations 2007 apply.
27. Amendments to arrangements for care planning and review are made by the provisions in Part 2 of the Bill.
28. This clause replaces section 23(6) of the 1989 Act with new subsections (6A) to (6C). This is intended to improve clarity of interpretation as a result of recent court judgements. It restates the duty on the local authority to place a child who is voluntarily accommodated with a relative or other person connected with them, unless that would be impracticable or inconsistent with the child's welfare. The effect of subsection 6B is that such a placement in relation to a child accommodated under section 20 of the 1989 Act is that the child remains looked after unless the placement is with a parent (or another person who has parental responsibility).
29. This clause replaces section 23(7) of the 1989 Act. It imposes a new duty on local authorities to place children in accommodation that is within their local authority area except where accommodation cannot be provided within area that is consistent with the child's welfare. Examples of cases where it might not be possible to meet the welfare requirement by placing the child "in area" include those where it is necessary for a child to be placed at a distance from their family for safeguarding/child protection reasons, or where a child with complex health needs requires highly specialist provision that is not available locally.
30. Nationally 2,300 children of the 5,200 children in children's homes, and 12,700 of the 35,300 children in foster placements (where the foster carers are not relatives or friends) are accommodated outside of the area of the local authority that placed them. Further information is available in: Children Looked After in England (including adoption and care leavers) year ending 31st March 2007 statistical first release published on the 20th September 2007 available at: http://www.dfes.gov.uk/rsgateway/DB/SFR/s000741/index.shtml
31. Subsection (7B) enables the appropriate national authority to make regulations with which local authorities must comply before placing a child in accommodation out of their area. In addition where an immediate placement is required due to the child's welfare needs, the regulations may also specify a time frame within which the local authority must comply with these requirements.
32. Subsections (7C) to (7E) replace section 23(7) of the 1989 Act, requiring accommodation to be provided near to a child's home and for siblings to be placed together where reasonably practicable and consistent with the welfare of the child.
33. This clause amends section 23 of the 1989 Act to the effect that local authorities are required to make arrangements for a child they are looking after to be accommodated near to the school at which the child is a registered pupil, unless doing so would not be reasonably practicable or consistent with his welfare.
34. The intention is that care placement decisions should not normally mean that the child has to change school; and that school moves should normally only result from a change to the child's educational needs, such as a change in their assessed special educational needs.
35. The provision builds on the requirement (in section 22(3A) of the 1989 Act) for local authorities to promote the educational achievement of children they look after, which came into force in July 2005 in relation to England and in October 2006 in relation to Wales. Section 22(3A) places a duty on local authorities to "give particular attention to the educational implications of any decision about the welfare of any child they are looking after" (Explanatory Notes to the Children Act 2004, paragraph 227).
36. In addition to this general new requirement, for children in school years 10 and 11 (Key Stage 4) the circumstances must be exceptional to justify a care placement that is not near the child's school. This is because this stage is critical to children's academic attainment as they will typically be studying a course leading to a particular qualification, such as GCSEs or equivalent. Evidence suggests that disruptions to education are likely to have a greater impact on educational attainment during this period.
37. Examples of "exceptional circumstances" that might justify accommodating a child so far from his school that it becomes impractical to maintain the school placement might include, for example, placement with prospective adopters or a move for child protection purposes.
38. This clause amends section 23 of the 1989 Act. It introduces a procedural requirement in a case where the local authority is considering a particular change to the arrangements it has made for the accommodation of a looked after child. Specifically, if the local authority is considering moving a child placed in accommodation of a type mentioned in section 23(2)(a) (local authority foster care) or section 23(2)(aa) (an appropriate children's home) to accommodation of a type that involves making "other arrangements" under section 23(2)(f), it must undertake a statutory review of the child's case in accordance with section 26 of the 1989 Act before making a decision, unless it is necessary to make the change to the arrangements for the child's accommodation for child protection reasons as a matter of urgency .
39. "Other arrangements" can encompass a variety of placement types including, for example, supporting young people to live independently in rented accommodation, residential employment, or in supported lodgings/hostels. Information on the numbers of children in different placement types can be found in the Children Looked After in England (including adoption and care leavers) year ending 31st March 2007 statistical first release published on the 20th September 2007 available at:
40. All local authorities are required to appoint IROs, whose functions currently include:
41. The Review of Children's Cases (Amendment) (England) Regulations 2004 set out the IRO's additional responsibilities which include ensuring that:
42. Clause 11 replaces section 26(2)(k) and (2A) to (2D) of the 1989 Act with new sections 25A to 25C that set out:
43. Section 25A(1) to (3) have the effect that when a child first becomes looked after, a named individual must be appointed by the local authority as the IRO for the child. The appointment must be made before the child's case is first reviewed (i.e. within four weeks of the date on which the child begins to be looked after). The local authority must appoint another IRO if a vacancy should arise (for whatever reason). The intention is that each looked after child should have a named IRO, to provide continuity in the oversight of the case and to enable the IRO to develop a relationship with the child.
44. Section 25A(4) replaces the power of the appropriate national authority to require, by regulation, the IRO, to be of a prescribed description.
45. Section 25B(1) set out the functions of the IRO which replaces section 26(2A) of the 1989 Act, adding the following new functions:
46. Section 25(B)(2) replaces the regulation making power in section 26(2)(k) of the 1989 Act, enabling the appropriate national authority to prescribe the manner in which the IRO functions are to be performed. In addition, it gives a new power to the appropriate national authority to issue guidance to which IROs must have regard in relation to the discharge of their functions. Section 25B(4) imposes a new duty on the local authority to cooperate with the IRO and take all reasonable steps to enable the IRO to perform his functions.
47. Section 25(B)(3) and 25(C)(1) and (2) replace section 26 (2A) (c) and (2C) which relate to the IRO's existing function of referring the child's case to an officer of CAFCASS (Children and Family Court Advisory and Support Service) or the equivalent in Wales, if he considers it appropriate to do so. The original provision was inserted in the 1989 Act by the Adoption and Children Act 2002 in response to a House of Lords judgement in the conjoined appeals of Re S and Re W (previously known as Re W, W and B) which concerned the respective roles of the courts and local authorities in care planning. The judgement concluded that the courts have no general power to monitor the discharge of the local authority's functions but that a local authority that failed in its duties to a child could be challenged under the Human Rights Act 1998. However the judgement also expressed concern that some children with no adult to act on their behalf may not have any effective means to initiate such a challenge. The IRO's power to refer the child's case to a CAFCASS officer provides a remedy for this problem.
48. The intention is that these changes to the statutory framework will enable the IRO to have a more effective independent oversight of the child's case and ensure that the child's interests are protected.
50. The intention is that this power will be used to establish a national IRO service, if the amendments made by clause 11 to the existing statutory framework do not prove to be effective in achieving significant improvements in the outcomes for looked after children.
51. The functions that may be conferred on the new IRO service include functions in connection with:
and any other functions that may be necessary to enable the service to be delivered (clause 12(3)).
52. The power may also be exercised to transfer property, rights and liabilities to the new service (clause 12 (4)) and if in doing so it would affect employees rights, for example by transferring employees from local authority employment to the new service, the order must make provision for the Transfer of Undertakings (Protection of Employment) Regulations 2006 to apply (clause 12(5)). In addition, the order may require the new IRO service to establish a complaints procedure (clause 12(6)) and it may permit the service to charge fees, for example for providing training (clause 12(8)). Clause 12(9) will enable inspection of any new body established in exercise of the powers under this clause to be added to the responsibilities of the registration authority.
53. The power would also enable the Secretary of State to make consequential modifications to any enactment (both primary and secondary legislation) in relation to independent reviewing officers or in relation to CAFCASS (Clause 12(7)).
54. Exercise of these powers will be subject to affirmative procedure (clause 35(2)) (see paragraph 16 for further explanation of the Parliamentary procedure).
55. Clause 13 inserts new section 23ZA into the 1989 Act. This provision requires local authorities to ensure that all looked after children are visited and that appropriate advice support and assistance is made available to them (subsection (2)). The appropriate national authority may, by regulations, extend these duties to other groups of children and young people; and specify how the duties are to be discharged (e.g. that the local authority should provide each child and their carers with emergency contact details so that the child can speak to a social worker between visits); and in particular may specify the frequency of the visits; the circumstances in which the visit must take place and the functions of the visitor (e.g. to report to the local authority, the IRO and the child's parents on the visit).
56. Performance of these duties will be subject to any particular statutory requirements that may apply to the place where the child (or young person) is actually living, for example children who are in custody or who are liable to be detained under the Mental Health Act 1983.
57. Clause 14 replaces paragraph 17 of Schedule 2 to the 1989 Act, extending the group of looked after children for whom an independent person must be appointed to visit befriend and advise the child to include all those for whom an appointment would be in their interests. The appropriate national authority may by regulations extend those to whom the duty is owed automatically to further specific groups of looked after children (subsection (1)(a)).
58. Subsection (9) allows regulations to be made to describe what is required by "independence". Clause 15 and 16 - Notification of, and visits to, children in long term care
59. Section 85 of the 1989 Act requires that a health body (e.g. a Primary Care Trust) or a local education authority (i.e. a local authority exercising its education functions), when accommodating (or intending to accommodate) a child for at least three months, or when ceasing to accommodate a child, notify the local authority for the area where the child is ordinarily resident of the placement (the "responsible authority"). On receiving a notification of this kind, the responsible authority must take such steps as are reasonably practicable to ensure that the welfare of a child (of whom it has been notified under the requirements above) is adequately promoted and safeguarded, and consider whether it needs to exercise its functions under the Act, for example the provision of services such as parenting support under section 17, if it determines that the child is a "child in need" within the meaning of that section.
60. Section 86 of the 1989 Act requires a person carrying on a care home or independent hospital to notify the responsible authority of any child placed at their establishment in similar circumstances; and places similar duties on the responsible authority so notified.
61. The children to whom these sections relate are most likely to be placed in one of the following settings:
62. Most residential schools accommodating children to whom section 86A applies will be children's homes within the meaning of section 1 of the Care Standards Act 2000.
63. Clause 15 amends section 85 and 86 to ensure that the notifications described above will be sent to the Director of Children's Services in England or the lead director in Wales.
64. Clause 16 inserts new section 86A which places a new duty on the responsible authority to make arrangements for the children it is notified of under sections 85 and 86 to be visited. The appropriate national authority will have power to make regulations under section 86A(2), in similar terms to regulations made under section 23ZA of the Act (inserted by clause 13) i.e. they may specify the frequency of the visits; the circumstances in which the visit should take place; and the functions of the visitor (e.g. to report to the local authority, the IRO and the child's parents on the visit) (section 86A (3)).
|© Parliamentary copyright 2007||Prepared: 15 November 2007|