APPENDIX 1: CHILDREN AND YOUNG PERSONS
BILL [HL]
Memorandum by the Department for Children, Schools
and Families
Introduction
1. This Memorandum identifies the provisions
in the Children and Young Persons Bill which confer powers to
make delegated legislation. For each power, or where appropriate,
group of powers, the memorandum explains:
- the purpose of the delegated power;
- why matters are to be left to delegated legislation;
- the way in which the power is expected to be
used, and;
- the nature and justification for the Parliamentary
procedures which apply.
2. For the most part, the descriptions of the
powers are arranged in the order that the powers appear in the
Bill. In some cases, where powers are directly related, they are
described together (with cross-references in the text as appropriate).
3. The Department has prepared a number of policy
statements relating to the Bill to aid the process of Parliamentary
scrutiny and provide further clarity about the proposed use of
delegated powers. These have been circulated to members of the
Committee alongside this memorandum for reference. Copies have
also been placed in the library of both Houses.
The Delegation of Powers
4. In deciding whether subordinate legislation
is the appropriate vehicle for any particular provision, the Department
has been guided by the following criteria:
- the desirability of not putting
detailed provision on the face of the Bill;
- the precedent of existing children's legislation,
particularly the Children Act 1989; and
- the need to ensure flexibility to respond to
changing circumstances; and
- the need to present substantive policy clearly
in primary legislation.
5. The majority of the powers are regulation
making powers, exercisable by the Secretary of State in relation
to England, and by the Welsh Ministers in relation to Wales, and
where this is the case, we have referred to the powers being exercised
by "the appropriate national authority". However, in
one instance the Bill requires the power to be exercised jointly
and the rationale for this is explained. In addition, clause 11(1),
which inserts new section 25C in the Children Act 1989, contains
a power that relates to CAFCASS[7]
functions, exercisable by the Lord Chancellor in relation to England
and by the Lord Chancellor with the consent of Welsh Ministers
in relation to Wales.
Background
6. The legislative framework for the provision
of children's services is largely set out in the Children Act
1989. Part 3 of and Schedule 2 to the Children Act 1989 provide
for local authority services and support; Part 4 sets out provisions
relating to care orders and supervision orders; and Part 5 deals
with child protection. The Care Standards Act 2000 provides for
registration of residential family centres, fostering agencies,
voluntary adoption agencies and children's homes (amongst other
providers of social care); regulation of these agencies and establishments
through regulations made under that Act and through national minimum
standards ("NMS"); and for inspection and enforcement
of regulations and NMS by the Chief Inspector of Education, Children's
Services and Skills ("Chief Inspector").
7. The Children Act 1989 has been amended in
a number of respects. Important amendments have 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
Children and Young Persons Bill makes further amendments to this
legislation, and in addition it amends the Care Standards Act
2000.
8. 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 by reforming the care system. 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 White Paper included a commitment
to amend the legislative and regulatory framework for looked after
children including amendments to the statutory guidance and NMS.
9. There exists already a substantial body of
subordinate legislation made under the Children Act 1989, and
Government has committed to consolidate some of this by "bringing
together all the requirements for care planning in one set of
regulations and issuing accompanying statutory guidance as part
of the revised Children Act 1989 guidance." [8]
Some of the new powers conferred in the Bill are intended to be
exercised through these new care planning regulations.
Overview of the Bill
10. The primary purpose of the Bill is to deliver
those aspects of the White Paper commitments that require primary
legislation. The Bill also includes provisions in relation to
private fostering, child death notifications to Local Safeguarding
Children Boards, emergency protection orders and the powers of
the Secretary of State to conduct research.
11. The Bill has five Parts which are summarised
below; fuller descriptions can be found in the Explanatory Notes
to the Bill.
- Part 1 (clauses 1-6) provides
for arrangements for the provision of social work services for
children and young persons.
- Part 2 (clauses 7-28) of the Bill, which principally
amends Part 3 of the Children Act 1989, concerns the duties of
local authorities when providing accommodation for children they
look after; extends the powers of local authorities to make cash
payments to children in need and their families; and provides
for the appointment and functions of the independent reviewing
officer ("IRO"), including a power to establish a national
IRO service. It provides for the 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 for 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 at the school 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 imposes a new duty on registrars of births
and deaths to provide information to Local Safeguarding Children
Boards regarding child deaths. It amends 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
for the discharge of an emergency protection order.
- Part 3 (clauses 29 to 31) amends Schedule 2 to
the Children Act 1989, to allow for the independent review of
decisions on the suitability of foster parents; and makes some
minor amendments to the provisions of the Adoption and Children
Act 2002 that relate to the independent review of "qualifying
determinations"[9]
under that Act. Clause 31 extends the period allowed for making
regulations to establish a registration scheme for private fostering.
- Part 4 (clauses 32 to 34) makes amendments to
Part 2 of the Children Act 1989 in relation to residence orders
and special guardianship orders.
- Part 5 contains general and final provisions.
- There is one Schedule that deals with repeals.
Delegated Powers
12. This section covers the provisions that contain
powers to make regulations, in two instances to issue statutory
guidance and powers in relation to commencement. The Department
has considered on a case by case basis the appropriate procedure
to be followed when exercising delegated powers. In most cases
it is considered that the matters are of technical or procedural
detail, and in keeping with this view, all powers, with three
exceptions, are made subject to the negative resolution procedure.
The statutory procedure adopted for regulation making powers in
clauses that amend provisions of the Children Act 1989 are consistent
with the procedures for the powers in those provisions.
13. In addition this section explains the broad
order making powers in Clause 12 to establish a new body or confer
additional functions on CAFCASS in relation to Independent Reviewing
Officers.
Part 1: Delivery of Social Work Services for Children
and Young Persons
General
14. Part 1 of the Bill enables local authorities
to enter into arrangements with a body corporate (referred to
as a "provider of social work services" - clause 1 (3))
for the discharge by that body of some or all of the authority's
"relevant care functions", that is its social services
functions in relation to:
- individual children who are looked
after by the authority; or
- those children who were but are no longer looked
after by it;
- relevant children; former relevant children;
and persons entitled to advice and assistance under section 24
of the 1989 Act (clause 1(2)).
15. Clause 6 enables the piloting of arrangements
under Part 1 for a period of up to five years in particular local
authorities. It is the Department's intention to run a small number
of pilots and then, subject to evaluation of those pilots, to
decide whether to enable all local authorities to enter into such
arrangements; or withdraw plans to enable local authorities to
enter into arrangements for the discharge of their care functions.
Delegated powers in Part 1
Clause 1: Power to enter arrangements for the
discharge of care functions
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: regulations made by Statutory
Instrument
Parliamentary procedure: Clause 1(6) and (7) affirmative;
clause 1(8) negative resolution
16. Clause 1 provides a power for local authorities
to enter into arrangements with a provider of social work services
for the discharge of their relevant care functions. The relevant
care functions which may be the subject to arrangements are set
out subsection (2).
17. Subsection (6) provides that a provider
of social work services must have regard to any guidance applicable
to the discharge of those functions issued by the appropriate
national authority under section 7 of the Local Authority Social
Services Act 1970. The appropriate national authority has power
under this provision to issue guidance to local authorities on
the exercise of their social services functions (as defined) including
the exercise of any discretion conferred by any enactment which
local authorities must act under. This will ensure that it should
make no difference in principle to the child or young person receiving
services whether the services are provided by the local authority
or by a provider of social work services.
18. Subsection (6) confers a power to make regulations
to specify other social services functions which are, or are not,
to be treated as relevant care functions. This power will enable
Government to respond to evidence and any issues arising from
the pilots as to the nature of the functions which may be delegated.
Given the nature and sensitivity of the functions in question,
it is appropriate for the exercise of this power to be subject
to further Parliamentary scrutiny in advance.
19. The provider of social work services cannot
be a local authority, (subsection (3) (a)). Subsection
(8) confers a power to make regulations about the bodies corporate
which may, or may not, enter into such arrangements. The intention,
during the pilot phase, is to test out a small number of arrangements
with a range of corporate bodies. Consideration will be given
to whether, and how to, exercise this power when the evidence
from the pilots is available, and in response to any concerns
arising about any particular type of provider. The Department
believes that because of the sensitivity around who may discharge
care functions on behalf of local authorities, exercise of these
powers should be subject to further Parliamentary scrutiny in
advance.
20. Clause 1 (9) enables regulations to
provide that arrangements may be entered into for a minimum or
maximum period of time. Clause 6 (6) prevents these regulations
being made before the end of piloting period. The intention is
to enable the Department to respond to any issues arising from
the pilots as to the desirable length of any arrangements. This
power is subject to the negative procedure.
Clause 4: Regulation of providers of social work
services
21. Clause 4 provides for the regulation of providers
of social work services under the Care Standards Act 2000. The
intention is that this provision will only be commenced after
the pilots have been evaluated, when decisions on how the powers
in Clause 1 should be exercised can be based on evidence and experience
of how these new arrangements will work in practice. Subject to
that evaluation, if the decision is taken to extend the power
to delegate function to all local authorities, 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, in the same way that other establishments
and agencies are under the 2000 Act.
22. Section 22 of the 2000 Act enables Regulations
to be made providing for the way in which an agency should be
conducted and against which it will be inspected. Section 23 of
the Act enables the Secretary of State to publish National Minimum
Standards which must be taken into account in the course of assessment
against the Regulations or in any other decision relating to registration.
Clause 5: Functions under this part to be social
services functions
23. This clause adds the power to enter these
arrangements to the list of functions that are social services
functions for the purposes of the Local Authority Social Services
Act 1970. The appropriate national authority will have power to
issue guidance under which local authorities must act (section
7 of that Act), as well as power to issue directions (under section
7A), in relation to these arrangements, and therefore under which
providers of social work services must act in accordance with
clause 1(6).
Clause 6: Piloting and expiry of arrangements
under this Part
24. The intention is to pilot these arrangements
in a small number of local authorities. Subsection (2)
provides expressly that an order bringing clause 1 into force
may do so by reference to particular local authorities. Subsection
(1) provides for the duration of piloting period and subsection
(3) provides that Part 1 is repealed if the piloting period
comes to an end after 5 years and clause 4, which provides for
regulation of providers of social work services, is not commenced.
25. Subsection (4) and (5) provide that
if an order bringing section 1(1) into force is not made by the
Secretary of State, or the Welsh Ministers respectively, within
five years of the Act being passed then sections 1 to 5 cease
to have effect in relation to England or Wales respectively.
Part 2: Functions in relation to children and
young persons
Clause 7: Support for children placed with family
or friends
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: regulations made by Statutory
Instrument
Parliamentary procedure: Negative
26. Clause 7 replaces section 23(6) of the Children
Act 1989 with new subsections (6A) to (6C). The power for
the appropriate national authority to make regulations is a restatement
of the existing power in section 23(6), which has not been exercised
to date. The power may be exercised to include in the new care
planning regulations matters hitherto addressed in statutory guidance
on section 23(6), such as the matters to which the local authority
must have regard when considering a placement with family and
friends, and the support to be provided to local authority foster
carers who are related to the child.
Clause 8: Duty to provide accommodation etc
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: regulations made by Statutory
Instrument
Parliamentary procedure: Negative
27. Clause 8 (in inserting new subsection
(7B) in section 23 of the Children Act 1989) provides for
regulations to be made by the appropriate national authority that
impose requirements with which local authorities must comply before
they may place a child in accommodation out of their authority's
area. In addition where an immediate placement is required due
to the child's welfare needs (that is, the placement is made as
a matter of urgency, before the requirements can be complied with),
the regulations may also specify a time within which the local
authority must comply with these requirements.
28. It is intended that this power will be exercised
in the new care planning regulations to set out a process (such
as referral of the decision for consideration by a special panel)
that a local authority must follow to ensure that it has fully
considered all the options for placing the child out of its area
and that the decision to place out of area is made for reasons
directly related to the child's welfare and for no other reason.
29. Such detailed process requirements, the precise
nature of which will be the subject of consultation, will be similar
to those already contained with the Arrangements for Placement
of Children (General) Regulations 1991, SI 1991/890 (made under
section 23 subsection (2) (a), (f)(ii), (5) Children Act 1989)
and the Department considers that it is appropriate for exercise
of these powers to be subject to the negative procedure.
Clause 11: Independent reviewing officers
30. All local authorities are required under
regulations made under section 26(1) and (2) of the Children Act
1989[10] to carry out
regular reviews of the cases of looked after children. In addition
under section 26(2) (k) they must appoint an IRO to:
- participate in the review;
- monitor the performance of the authority's functions
in respect of the review; and
- refer the child's case to a CAFCASS officer (or,
in Wales, a Welsh family proceedings officer) if he considers
it appropriate to do so.
31. Section 26(2A) - (2D) makes further provision
for IROs.
32. Clause 11 replaces section 26 (2) (k) and
(2A) to (2D) of the Children Act 1989 with new sections 25A to
25C and builds on these existing requirements relating to the
appointment of IROs and their functions. This clause confers delegated
powers in three different ways which are described in turn below:
i) New sections 25A and 25B confer power to make
regulations:
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative
33. Section 25A (4) confers the power
to require by regulation that the IRO be of a prescribed description.
This re-enacts section 26 (2B) of the Children Act 1989, and is
exercisable subject to the negative procedure. The power was used
to make the Review of Children's Cases (Amendment) (England) Regulations
2004 (SI 2004/1419) ("the 2004 Regulations") which require
the IRO to be registered as a social worker with the General Social
Care Council; have sufficient relevant social work experience
to undertake their functions; and to be independent of line management
of the child's case. The Review of Children's Cases (Wales) Regulations
2007 (SI 2007/307) make similar provision in relation to Wales.
It is intended that the new power will be used in a similar way.
34. Section 25B (1) (b), (1) (d) and (2) (a)
re-enact section 26 (k) and (A) (a), of the Children Act 1989
and confer the same powers on the appropriate national authority.
These enable regulations to be made to prescribe the manner in
which an IRO is to carry out their functions (including participation
in any review of a child's case), and require them to perform
other prescribed functions. The existing powers have been exercised
in the 2004 Regulations and the Welsh equivalent.
35. In relation to the manner in which statutory
and other prescribed functions must be performed, the provisions
will need to be detailed and therefore the Department considers
that it is appropriate to address this in regulations. The Department
intends to use these powers to make provision for matters currently
dealt with in the 2004 Regulations and in addition to give IROs
a new function of adjourning children's case reviews in circumstances
where the IRO is not satisfied that the local authority has complied
adequately with all the requirements relating to reviews e.g.
the duty to consult the child, the child's parents and others
before taking decisions with respect to the child (section 22(4)
and (5) of the Children Act 1989). This new power will be particularly
relevant as a check on the local authority's performance of its
new duties under clauses 7-10 of this Bill in relation to placement
of the child. In all the circumstances it is considered that the
powers are suitable for exercise subject to the negative procedure.
ii) New section 25B (2) (b) confers the power to
issue statutory guidance:
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: Guidance
Parliamentary procedure: None
36. New section 25B (2) (b) enables the
appropriate national authority to give guidance to which IROs
must have regard in the discharge of their functions. This will
supplement regulations to be made under subsection (2) (a) and
provide further detail for example as to the matters to be taken
into considerations when the IRO is deciding whether, to adjourn
a review if the appropriate paperwork is not available, and the
action required to ensure that the child's wishes and feelings
are taken appropriately into consideration. Government believes
that the power to give specific guidance addressed to IROs (rather
than to local authorities, as at present) will increase the effectiveness
of IROs, improving their capacity to provide effective challenge
to the social workers responsible for the child's case and the
quality of decision making as well as supporting a consistent
approach to decision-making across the country. The guidance will
be enforced through the arrangements under which the IRO is appointed
(whether the IRO is an officer of the authority or appointed under
other contractual arrangements) and through inspection of local
authority functions.
iii) New section 25C confers the power to make regulations:
Powers conferred on: Lord Chancellor (exercisable
only by consent of the Welsh Ministers in relation to Wales)
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative
37. The Independent Reviewing Officer has an
existing function to refer a child's case to an officer of CAFCASS
(Children and Family Court Advisory Service) or the equivalent
in Wales if they consider it appropriate to do so. (Section 26
(2A) (c) re-enacted as new section 25B (3)). Current guidance
suggests the power should be used "…[i]f all other methods
of resolving an identified problem [in relation to the child's
case] have proved or are proving unsuccessful and there is a danger
of the child's human rights being breached … so that legal
proceedings can be brought to achieve a remedy."[11]
38. Section 25C (1) and (2) re-enact section
26 (2C) conferring powers on the Lord Chancellor to make regulations;
to extend any functions of officers of CAFCASS[12]
in England in respect of family proceedings to other proceedings,
and require any functions of the officers to be performed in the
prescribed manner; to enable them to take action on a child's
case in response to a referral from an IRO. The Children and Family
Court Advisory Support Services (Reviewed Case Referral) Regulations
2004, SI 2004/2187 and Children and Family Court Advisory and
Support Service (Reviewed Case Referral) (Amendment) Regulations
2005, SI 2005/605 were made in exercise of these powers. We consider
that these matters remain appropriate for secondary legislation
subject to the negative procedure.
Clause 12: Power to make further provision concerning
independent reviewing officers
Powers conferred on: Secretary of State
Powers exercised by: Order
Parliamentary procedure: Affirmative
Background
39. In general terms, the powers in this clause
enable the Secretary of State by order to establish national arrangements
for delivery of IRO functions and related matters, either through
a new body corporate or by adding these functions to the existing
functions of CAFCASS.
40. Responses to the extensive Care Matters
Green Paper consultation raised substantial and serious concerns
that:
- the IRO role is not being performed
effectively across all local authorities.
- IROs are not challenging decisions
made by local authorities, even in cases where professional practice
is poor and not in young people's interests.
- insufficient weight is given to the views of
the young person or to those of their parents, carers, or other
professionals with a role in securing the child's welfare.
- Where care plans are not rigorously examined
at reviews, the opportunity to develop the plan in light of the
child's response to interventions and changing is lost.
41. The Department considers that the changes
introduced by clause 11 will, in combination with wider reforms,
substantially develop the role of the IRO in a way that enables
that the IRO to be a real force for improvement in the quality
of local authority planning and delivery of services that meet
the needs of individual looked after children.
42. There remains however the possibility that
more will need to be done to ensure that the IRO is capable of
having a decisive impact in cases of inadequate or poor care planning.
It is possible that better results may be achieved simply by creating
a specialist cadre of social workers, through providing a tailored
national training and accreditation body (to introduce more consistency
in performance and improve quality and expertise) and requiring
local authorities to appoint as IROs social workers with such
training or accreditation. Alternatively, it may prove to be necessary
to make the IRO not only independent of service delivery in relation
to the case (as now) but to remove the IRO partly or completely
from the employment of local authorities and give the management
and possibly even the function of appointing the IRO to a third
party, either a new body corporate or CAFCASS.
43. This is the policy intention underlying clause
12 of the Bill, which provides the Secretary of State with a flexible
power to establish national arrangements for the delivery, or
support, of IRO functions and related functions, which can be
tailored to meet the particular problems that may be identified
at the time. Although Ministers have no immediate intention of
using the powers, it is considered necessary to take them to enable
a speedy and decisive response should there be no marked improvement
in the outcomes for looked after children resulting form the provisions
in clause 11 within 7 years after Royal Assent.
The specific powers
44. Clause 12 (1) confers power on the Secretary
of State by order to establish a new
body corporate to discharge functions as may be conferred by the
order; or to confer additional functions of the same nature on
CAFCASS ("the recipient"[13]).
Subsection (2) limits the extent of the functions that the order
can confer on the recipient to those in connection with the provision
of training to, accreditation of, appointment of, and the management
of persons accredited or appointed as, IROs.
45. Subsections (3) enables the
order in addition to confer on the recipient powers to do anything
that is incidental or conducive to or designed to facilitate the
discharge of its functions.
46. Subsection (4) enables the order to
transfer property, right and liabilities to the recipient. Where
it makes such provision in relation to the rights and liabilities
of an employee, subsection (5) requires that the order
also makes provision for the Transfer of Undertakings (Protection
of Employment) Regulations 2006 to apply to that transfer. This
would ensure that the employment rights of IROs are protected.
47. Subsection (6) enables the order to
require the recipient to establish a complaints procedure.
48. Subsection (7) is a Henry VIII power
that enables an order to modify provisions in primary or secondary
legislation relating to IROs and, if conferring the functions
on CAFCASS, relating to CAFCASS. This could be exercised if for
example any functions in connection with the appointment or management
of IROs were conferred on CAFCASS.
49. Subsection (8) enables the order to
authorise the recipient to charge fees in relation to the functions
conferred on it. This would allow for example the charging of
fees for delivery of training and accreditation (see below).
50. Subsection (9) enables the function
of the Chief Inspector under the Education and Inspections Act
2006 to be modified to enable the new body corporate to be inspected.
51. These powers will enable Ministers to act
swiftly to introduce the necessary structural changes, if there
is clear evidence that the changes introduced under clause 11
are insufficient to achieve sustained and significant improvements
of children's experiences while looked after. Any proposal to
use the powers in clause 12 would reflect the lessons learned
from the changes introduced under clause 11.
52. Before exercising the power, detailed consideration
would be given to evidence from inspections by the Chief Inspector
and information arising from the new annual Ministerial stocktake
on looked after children ("an annual Ministerial event to
review of local authorities' progress in improving outcomes for
looked after children with key stakeholders and representatives
of local government, health agencies and looked after children"[14]).
In addition the Department would undertake further consultation
with local government (and representative organisations such as
LGA and ADCS), IROs, looked after children and their parents and
carers (and organisations representing their interests), CAFCASS,
the Children's Commissioner for England, the Children's Rights
Director and the courts service (Family Justice Council). Such
evidence, if it demonstrated a need to take further action, would
also inform Ministers decision on the most appropriate use of
the power.
Sunset Clause
53. The Department intends to monitor closely
progress on implementation of the changes introduced through clause
11. If Ministers are satisfied that the desired improvement in
the effectiveness of IROs can be and is being achieved without
establishing the national service and other provisions in the
Bill have proved effective in delivering improvement in the outcomes
for looked after children, it may not be necessary to exercise
the power. If the power is not used within 7 years after the Act
is passed, subsections (1) -(10) of clause 12 will cease to have
effect (subsections (11) and (12)).
Clause 13: Duty of local authority to ensure visits
to looked after children and others
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative
54. Clause 13 imposes a new statutory duty on
local authorities to make arrangements for visits to all looked
after children and for advice, support and assistance to be available
to such children should they seek it, by inserting new section
23ZA in the Children Act 1989. The duty applies regardless of
whether the child is in a placement mentioned in section 23(2)
(with a local authority foster carer, in an appropriate children's
home or other arrangements under section 23(20(f)) and would also
include looked after children who are not accommodated by the
local authority, for example a child who is the subject of a care
order and is serving a custodial sentence.
55. Section 23ZA (1) (b) enables the appropriate
national authority by regulations to specify categories of children
and young people in addition to looked after children to whom
the duties are owed. The intention is to exercise this power to
specify those children who immediately before entering custody
were accommodated under section 20 of the Children Act 1989. These
children in most cases cease to be "looked after" within
the meaning of section 22 of the Children Act 1989 as soon as
they cease to be accommodated by the local authority.
56. New section 23ZA subsections (3) and (4)
confer additional powers on the appropriate national authority
to regulate how the local authority's functions under this new
section are discharged and in particular may make provision relating
to the frequency of visits; the circumstances in which a person
to which the section applies must visit; and the functions of
the person visiting. The intention is to use these powers to set
out a minimum frequency of these visits and ensure that a record
of the visit is taken.
57. Similar provision is currently made with
regard to children in placements with foster parents in the Fostering
Services Regulations 2002 (SI 2002/57) (regulation 35) and for
children placed with their parents in the Placement of Children
with Parents etc. Regulations 1991 (SI 1991/893) (regulation 9).
58. This clause ensures that all looked after
children will be visited; and that the appropriate national authority
has power to require additional groups of children and young people
to be visited; and to make further provision for the arrangements
under which the visits are to made. These are matters of detail
and the Department believes that it is best for that detail to
be set out in secondary legislation subject to negative procedure.
Clause 14: Independent visitors for children looked
after by a local authority
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative
59. Clause 14 repeals and substantially re-enacts
paragraph 17 of Schedule 2 of the Children Act 1989 as new section
23ZB of the Children Act 1989. Independent visitors provide access
to an independent adult volunteer who is outside the care system
for looked after children who may have no other meaningful, sustained
adult relationships in their lives apart from their carer and
social worker.
60. The new section 23ZB (1) (a) confers
on the appropriate national authority power by regulation prescribe
the descriptions of children for whom an independent visitor must
be appointed. The intention is to exercise this power (as part
of new care planning regulations) to ensure that all those looked
after children who are currently entitled to an independent visitor
under Schedule 2 (17) namely, those who have lost contact with
their parents or who only have infrequent communication with them,
continue to be so entitled.
61. In addition, the local authority will be
required to appoint an independent visitor where it is in the
child's interests to do so (subsection (1 (b)).
62. Subsection (9) confers the power for
regulations to be made as to the circumstances in which a person
is to be regarded as independent of the authority (for this section).
This restates paragraph 17 (7) of Schedule 2 under which The Definition
of Independent Visitors (Children) Regulations 1991 (SI 1991/892)
were made. The intention is that the new power will be exercised
in a very similar way to the existing power to specify that a
person should not be regarded as independent if they are is a
member of the local authority or its committees or sub-committees
(whether elected or co-opted) or another officer of the local
authority or the spouse or civil partner of any of these.
Clause 16: Visits to children in long term care
Powers conferred on: Secretary of State and Welsh
Ministers to be exercised jointly
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative
63. Clause 16 inserts new section 86A in Part
5 of the 1989 Act and introduces a requirement for the local authority
(for the area in which the child is ordinarily resident) to arrange
for a representative to visit the children placed in long term
residential care of whom it is notified of under sections 85 (children
placed by health bodies and local education authorities) and 86
(children accommodated in care homes or independent hospitals)
of the Children Act 1989.
64. Section 86A (4) confers powers similar
to those conferred by Clause 13 to make further provision by regulation
in relation to the arrangements to be made under this provision
and in particular in relation to the frequency of visits; the
circumstances in which visiting arrangements must require a child
to be visited; and the functions of the person visiting.
65. The intention is to use these powers to make
provision similar to that made for visits to looked after children
and others. These detailed matters that concern process rather
than the principles of policy are appropriate for secondary legislation
subject to the negative procedure, which will also allow flexibility
to respond to practical issues that may arise when the policy
is implemented.
66. This power is exercisable jointly by the
Secretary of State and the Welsh Ministers. This is because of
the potential for cross-border issues to arise in both countries
in situations where the regulations will have effect. The health
bodies mentioned in the opening of section 85(1) include some
that are England only, some that Wales only, and some that are
cross border bodies. An example of such joint regulation making
is the Voluntary Adoption Agencies (Amendment) Regulations 2002
(SI 2005/3341), made under sections 9(1) and 140(7) and (8) of
the Adoption and Children Act 2002.
Clause 17 - Designated member of staff at school
for pupils looked after by a local authority
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative
67. Clause 17 requires the governing body of
a maintained school in England and Wales to designate a member
of staff to promote the educational achievement of looked after
children and relevant children who are pupils at the school. Subsection
(3) confers the power on the appropriate national authority
by regulations to prescribe the qualifications or experience (or
both) that a designated person should have. This is similar to
the power to prescribe the qualifications and experience of persons
appointed as Special Educational Needs Coordinators under section
173 of the Education and Inspections Act 2006. It is intended
to use the power to prescribe that the designated person should
be a teacher.
68. These are detailed matters and flexibility
is required to amend the regulations as qualifications change
over time, and the power is therefore appropriate for exercise
by regulation subject to the negative procedure.
69. In addition, subsection (4) confers
power on the appropriate national authority to issue guidance
to which governing bodies of maintained schools must have regard
when exercising functions
under the clause. The existing non-statutory guidance to schools
on the role and functions of the designated teacher is "The
Education of Children and Young People in Public Care" (DH&
DFEE 2000).
Clause 18: Entitlement to payment in respect of
higher education
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative
70. Clause 18 amends section 23C of the Children
Act 1989 to add to local authorities' duties to former relevant
children (i.e. care leavers who are over 18) a requirement to
make pay a sum of money to all those who pursue a course of higher
education in accordance with their pathway plan.
71. New subsection (5B) confers the power
on the appropriate national authority to prescribe the amount
of the payment; the meaning of "higher education" for
these purposes (which is intended to follow closely the definition
used for student loans- see below); how the amount should be paid;
and the circumstances in which it may be recovered. It is intended
that the eligibility criteria for the payment (in terms of the
courses attended) will be similar to those for student loans,
as set out in regulation 6 of and Schedule 3 to the Education
(Student Support) Regulations 2007 (SI 2007/176). It is also intended
that regulations will specify the payment schedule, conditions
in which payments would cease (e.g. if the young person ceases
to attend a course) and conditions for repayment.
72. The proposed amount of the payment is linked
evidence which indicates that
looked after children finish HE courses with an average of £2,000
more debt than other students. It is necessary
to have the flexibility to adjust the amount of the payment in
light of changing economic circumstances and the particular financial
pressures on former relevant children. These matters of detail
are appropriate for secondary legislation subject to the negative
procedure.
Clause 19: Assistance to pursue education or training
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative
73. Clause 19 (2) inserts a new section
23CA in the Children Act 1989, extending the duties that local
authorities owe to former relevant children to those who are over
21 years and who wish to resume education or training. Section
23CA (1) allows the appropriate national authority to set
an upper age limit for this new duty by regulation, up to the
age of 25 years. The intention is to use this power to phase the
introduction of this duty.
74. Clause 19 (5) inserts new subsections
in section 23E (pathway plans) of the Children Act 1989. New subsection
(1B) confers the power to make regulations as to assessments
for the purposes of existing section 23B (3) and new section 23CA.
This re-enacts section 23B (5), under which the Children (Leaving
Care) (Wales) Regulations 2001(SI 2001/2189) and Children (Leaving
Care) (England) Regulations 2001 (SI 2001/2874) were made and
it is the intention to use the new powers in relation to section
23CA in a similar way.
Clause 25: Notification of matters relating to
persons carrying on or managing children's homes etc.
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative
75. Clause 25 by inserting a new section 30A
in the Care Standards Act 2000 places a duty on the Chief
Inspector or, in Wales, the Welsh Ministers, to notify each local
authority in England and Wales when certain enforcement action
is taken in relation to an establishment or agency regulated under
Part 2 of the Care Standards Act 2000 set out in the clause.
76. The new duty applies where a decision has
been taken to cancel registration of a provider or registered
manager; a prosecution is being brought for an offence under Part
2 or under specified relevant legislation; or where a notice restricting
accommodation is served.
77. New section 30A(3) confers the power
to make regulations to specify the circumstances in which local
authorities should be advised of a change in those circumstances
by the registration authority, the aim being to give a local authority
notice of a relevant, updated, position. The intention is that
regulations will prescribe circumstances such as those where a
prosecution is no longer proceeded with, where a provider pleads
guilty or is convicted following trial, or where they successfully
appeals their conviction. Further, the prescribed circumstances
might include a direction of the Tribunal that a decision of the
registration authority to cancel registration shall not have effect,
or where a provider successfully appeals a decision of the Tribunal
to confirm the authority's decision.
78. Section 30A(4) confers the power to
make regulations specifying the information to be contained in
the notification for example the name of the provider and of the
relevant establishment or agency and a reference the enforcement
action taken.
79. The regulations will clarify the detail of
the operation of the notification procedures, and the Department
believes these matters are appropriate for secondary legislation
subject to the negative procedure.
Clause 29 - Independent review of determinations
relating to local authority foster parents
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative
80. Clause 29 inserts Schedule 2 to the Children
Act 1989 new paragraph 12A.
81. Paragraph 12A(1)(a) provides for regulations
to secure that a child is not placed with a local authority foster
parent unless that person is approved as such.
82. Paragraph 12A(1)(b) provides for regulations
to establish a procedure under which prospective or existing foster
carers may apply to the appropriate national authority for an
independent review, by a panel constituted by that national authority,
of the determination of a fostering service provider regarding
their suitability or continuing suitability to foster a child
(a "qualifying determination"). There is already provision
into Fostering Services Regulations 2002, SI 2002/57, under which
prospective or existing foster carers can make representations
to the local authority or fostering agency where it proposes not
to approve them. The new provisions replicate in the fostering
regime the provisions in section 12 of the Adoption and Children
Act 2002, and the regulations made under that section, which make
provision for the independent review of qualifying determinations
of adoption agencies regarding a person's suitability to adopt
a child.
83. Sub-paragraph (3) of paragraph 12A
make provisions relating to the duties and powers of an independent
review panel, its administration and procedures, appointment of
members and other matters set out in sub-paragraph (3).
Those matters include a duty to make a payment to the national
authority of such sums as the national authority may determine,
though the sums payable to the national authority must not, taking
one financial year with another, exceed the costs incurred in
performing the independent review functions (sub-paragraphs
(4), (5) and (9)).
84. Sub-paragraph (2)(b) enables the appropriate
national authority by regulations to prescribe the characteristics
of determinations that are 'qualifying determinations' within
the meaning of the provision. It is intended that this power should
be used to clarify at what stage in the approvals process the
application for independent review can be made.
85. Paragraphs 12A(1)(a) and 12B replace
similar existing powers, currently in Schedule 2 paragraph 12
(d) and (g) respectively. The regulations made under these provisions
are the Fostering Services Regulations 2002, SI 2002/57, regulations
34 and 40.
86. These matters are detailed and technical
in nature. Secondary legislation will allow the detail of the
process to be changed as a result of feedback or experience in
operation and Department believes that they are appropriate for
secondary legislation subject to the negative procedure.
Clause 30 - Independent review of determinations
relating to adoption
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative
87. Clause 30 amends the existing powers in section
12 of the Adoption and Children Act 2002 enabling regulations
to provide for the independent review of qualifying determinations.
88. Subsection (2) amends section 12 to
clarify that the regulations are to provide for the application
for a review to be made to the appropriate Minister, and that
the review is to be by a panel constituted by that Minister.
89. Subsections (4) to (7) provide that
the regulations may impose a duty to make a payment to the appropriate
Minister of such sums as the appropriate Minister may determine,
though the sums payable to the national authority must not, taking
one financial year with another, exceed the costs incurred in
performing the independent review functions. These provisions
replace the existing powers under which it is the independent
review panel which has a power to recover the costs of a review.
90. These are technical amendments to the procedural
detail of the independent review mechanism in relation to adoption,
to ensure conformity with what is proposed in relation to the
independent review mechanism in respect of fostering. The existing
powers in section 12 of the Adoption and Children Act are subject
to the negative procedure.
Clause 39: Commencement
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: Orders
Parliamentary procedure: None
91. Exercising the power to make commencement
orders, as is customary, is not subject to any parliamentary procedure.
Under clause 39(1), Welsh Ministers have power to appoint the
day on which provisions in Parts 1 to 4 (apart from clauses 15
,16, 27 and 28); section 37 (repeals) and the Schedule come into
force in relation to Wales. For all other purposes, under clause
39(2), the Secretary of State has power to appoint when the provisions
in Parts 1-4; section 37 and the Schedule come into force. An
order made under clause 39 may appoint different days for different
purposes and include transitional, saving or transitory provision.
An order bringing clauses 27 and 28 into force requires the consent
of the Welsh Ministers.
November 2007
7 The Children and Family Court Advisory Support Service Back
8
Care Matters: Time for Change page 25 paragraph 1.32 Back
9
A determination that a prospective adopter is not suitable to
adopt a child (regulation 27(4)(a) of the Adoption Agencies Regulations
2005, SI 2005/389) or, in the context of the disclosure of information
related to an adoption on or after 20 December 2005, a determination
not to proceed with an application for disclosure of protected
information, a determination to disclose information against the
express wishes of the person the information is about, or a determination
not to disclose information where the person the information is
about has expressed the view that the information should be disclosed
(regulation 15(1) of the Disclosure of Adoption Information (Post-Commencement
Adoptions) Regulations 2005, SI 2005/888). Back
10
The Review of Children's Cases Regulations 1991 (SI1991/895) in
relation to England, as amended and the Review of Children's Cases
(Wales) Regulations 2007 (SI2007/307) in relation to Wales Back
11
Independent Reviewing Officers Guidance, published in 2004 by
DFES, paragraph 5.4. Back
13 12 Defined in clause 12(11). Back
Back
14
"Care Matters: Time for Change" (White Paper) paragraph
1.24, page 22. Back
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