Children and Young Persons Bill [HL]
2. This bill is principally concerned with making
changes to the functions of local authorities in relation to children
and in particular those functions as they relate to children being
looked after by the authority (Parts 1 & 2). The bill also
makes provision for independent reviews of determinations about
foster carers, and for a registration scheme for private foster
carers (Part 3). It also amends the present arrangements for residence
orders and special guardianship orders (Part 4). Apart from Part
1 and clause 12, the new provision made by the bill is introduced
by way of amendment of existing Acts, mostly the Children Act
1989 and the Care Standards Act 2000.
3. The Department for Children, Schools and Families
('DCSF') have prepared a memorandum for the Committee explaining
the delegated powers in the bill (printed at Appendix 1); DCSF
have also provided a number of policy statements about their present
intentions as to the exercise of some of those powers[2].
4. There are provisions in clauses 1, 7, 8, 11,
12, 13, 14, 16-19, 25, 29-31 and 39 conferring new, or affecting
existing, delegated powers. In the great majority of these cases,
where new powers are conferred - or existing powers are amplified
- in earlier Acts, the negative procedure affords an adequate
level of scrutiny, as it applies to comparable powers under those
Acts. The affirmative procedure is (by virtue of clause 35(2)
and (4)) provided for the more significant powers contained in
clauses 1(6) & (7) and 12. Clause 1(6) enables Ministers to
specify in regulations the care functions of local authorities
which (subject to clause 2) may be contracted out under clause
1(1). Clause 1(7) enables regulations to provide for the bodies
which are, and those which are not, bodies to which such functions
may be contracted out. Clause 12 is dealt with below.
Henry VIII powers
5. Clauses 7, 12, 18 and 19 contain powers which
are in effect Henry VIII powers. That in clause 7 (to make new
subsections (6A) and (6B) of section 23 of the Children Act 1989
subject to regulations under subsection (6C)) merely re-enacts
the same power as is presently conferred by the superseded subsection
(6), and remains subject to the same negative procedure. Clause
18(2) (new subsection (5B)(b)) contains a power, subject to negative
resolution, to prescribe the meaning of "higher education"
for the purposes of new subsection (5A), which reflects an almost
identical power of definition in section 28(1) of the Teaching
and Higher Education Act 1998. We consider that the power in
new subsection (5B)(b) should (like that in the 1998 Act) attract
the affirmative procedure on its first exercise, because it will
define the scope of the local authority's duty under new subsection
(5A). Clause 19 inserts new section 23CA into the 1989 Act,
which is (by virtue of subsection (1)(a)) to apply to a person
who is "under the age of 25 or of such lesser age as may
be prescribed". As is explained in paragraph 73 of DCSF's
memorandum, the purpose of the power is to enable new section
23CA to be phased in, presumably by progressively increasing the
upper age limit specified in regulations until the maximum age
specified in section 23CA(1)(a) itself applies. We consider neither
these delegations nor their level of scrutiny to be inappropriate.
Independent reviewing officers — clause
12
6. This clause is concerned with provision in
relation to the training, accreditation, appointment and management
of independent reviewing officers whose role is to monitor a local
authority's performance of its functions as respects any child
it is looking after, and to discharge related duties (see clause
11, which substantially re-enacts existing provisions in section
26 of the Children Act 1989 as new sections 25A - 25C.) As is
clear from pages 13 & 14 of the department's policy statements,
it is not yet known whether it will prove necessary to exercise
this power at all; or, if so, whether these training etc. functions
should be conferred on the Children and Family Court Advisory
Support Service ('CAFCASS' - established under section 11 of the
Criminal Justice and Court Services Act 2000) or on a new body.
7. Clause 12 is designed to leave all of these
options open. It enables the Secretary of State to make an order
establishing a new body corporate for the purpose, to confer on
it functions of the kind set out in paragraphs (a) to (d) of subsection
(2), and to make provision for transfers of property, rights and
liabilities (including staff transfers), for a complaints procedure
and for inspection of the new body by HM Chief Inspector of Education,
Children's Services and Skills. Alternatively, an order could
provide for functions of the kind set out in subsection (2) to
be conferred on CAFCASS. In either case, there is power for the
order to make consequential amendments in other legislation, including
Acts (subsection (7)), and to provide for the charging of fees
(subsection (8)).
8. This is a wide power, particularly as the
bill itself contains no provision about the constitution of the
new body that may be established. Nevertheless, the functions
which may be exercisable by the new body are tightly constrained
by subsection (2), and the order will be subject to the affirmative
procedure. Moreover, while the present need for the power is as
yet uncertain, it is limited by the 7-year sunset provision in
subsection (12). Accordingly, we consider neither the delegation
nor the level of scrutiny to be inappropriate.
Visits to looked after children and others —
clause 13(1)(b)
9. Clause 13 inserts a new section 23ZA into
the Children Act 1989 ("the 1989 Act") to place a duty
on a local authority to ensure that children looked after by the
authority, and certain other children and young persons, receive
regular visits from a representative of the authority and that
appropriate advice, support and assistance is made available to
them.
10. The new section applies by virtue of subsection
(1)(a) to any child being looked after by the authority; and subsection
(1)(b) enables the Secretary of State (in relation to England)
and the Welsh Ministers (in relation to Wales) by regulations
to apply the duties imposed by that section in relation to "a
child or young person … who is of a description prescribed
by regulations".
11. We were however concerned by the extent of
the power conferred by subsection (1)(b)(i). This power would
enable the Secretary of State to prescribe any description of
child or young person (other than ones already looked after by
an authority) and there appears to be no definition of 'young
person' for the 1989 Act as a whole. We are therefore encouraged
to have received a supplementary memorandum from the department
(printed at Appendix 2), in which they indicate that they intend
to table an amendment to limit the scope of the power to children
who immediately before entering custody were accommodated by them
under section 20 of the Children Act 1989. A power limited in
this way would not be inappropriate.
2 Not printed, but available from the Printed Paper
Office, the Library and at Error! Bookmark not defined.youngpersonsbill/
Back
|
