APPENDIX 3: CHILDREN AND YOUNG PERSONS
BILL [HL] — GOVERNMENT AMENDMENTS
Supplementary memorandum by the Department for
Children, Schools and Families
1. This supplementary memorandum is to accompany
the tabling of a number of Government amendments to the Children
and Young Persons Bill ahead of report stage. It follows the same
format and adopts the same approach to delegated powers as the
main memorandum sent to the committee on introduction of the Bill,
which is attached as annex A for convenience [not printed].
Amendment Nos 4, 29, 30, 31
Well-being of children: General duty of the Secretary
of State
Powers conferred on: Secretary of State
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative
2. The amendment gives the Secretary of State
a statutory duty to promote the wellbeing of children. The Secretary
of State has, for many years, carried out activities for the benefit
of children. In particular, he is required by section 10 of the
Education Act 1996 (c.56) to promote the education of the people
of England and Wales.
3. The proposed clause would bring the Secretary
of State's statutory duties into line with his policy commitments
which have developed in recent years, as the Every Child Matters
agenda has been taken forward. The Secretary of State now has
responsibility for promoting the well-being of all children and
young people (and, by extension, their families and those who
care for them) as well as their education. The new statutory
duty complements the existing duties on local authorities and
governing bodies of schools to promote children's well-being.
4. Amendment no 4 subsection (4) (a) provides
for the Secretary of State to take such action as he considers
appropriate to promote the well-being of care leavers; that is
persons receiving services under sections 23C to 24D of the Children
Act 1989. Subsection (4) (b) enables the Secretary of State
by regulations to specify additional categories of persons under
the age of 25 whose well-being he may take action to promote.
This might be exercised to, for example, include learners with
learning difficulties and/or disabilities aged between 19-25,
or particular groups of 18-19 years olds who are most vulnerable
and whose life chances may be positively influenced by an extension
of their link to children's services through more prolonged transitional
support. In light of the fairly limited scope for extension
to those persons aged between 19 and 25, the Department believes
that it is appropriate for exercise of these powers to be subject
to the negative procedure.
Amendments Nos 5-9, 26, 33, 35-40
Replacement of section 23 of the Children Act
1989 and clauses 7, 8, 9, 10 and 30
Powers conferred on: Secretary of State and Welsh
Ministers
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative
5. The existing clauses 7 to 10 amend section
23 of the Children Act 1989, imposing new duties on local authorities
in relation to the way in which they provide accommodation for
children they are looking after, in line with the commitments
set out in the Care Matters White Paper. As a result of
concerns raised by peers during Grand Committee and in our wider
discussions with stakeholders, we have reviewed these provisions
and given further consideration to the potential for conflict
between the various new duties and the likely impact of them on
local authority practice. We have concluded that the most appropriate
way of addressing these issues is to restate the provisions of
section 23 (as new section 22C), incorporating the substance of
clauses 7-10. This will ensure that the combined effect of the
placement duties and their interaction with each other is clear
and enables us to address at the same time difficulties which
have arisen in the interpretation of the section 23. This inevitably
means that the delegated powers in clauses 7 and 8 and section
23 are also restated, and we have identified which ones and how
below. The Department continues to believe that these are detailed
matters and that it is appropriate for exercise of these powers
to be subject to the negative procedure. There is one additional
power which we have explained separately.
6. Annex B contains a list of the regulations
made under the existing powers under section 23 and we have previously
provided the committee with information on our proposed approach
to revisiting some of these regulations (in part through a revised
care planning and review regulations).
7. Amendment no 9 (in inserting new section
22C (11)) provides for regulations to be made by the appropriate
national authority in relation to and in connection with the local
authority making arrangements for a child's placement. Broadly
this replicates the existing powers in section 23 (2) (a), (2)
(f), (5) and (6); and, read with new section 22F (see below),
also replicates the powers set out in Schedule 2 paragraph 12-14
of the Children Act 1989 under which the Arrangements for Placement
of Children (General) Regulations 1991, (SI 1991/890), the Fostering
Services Regulations 2002, (SI 2002/57) and Placement of Children
with Parents etc Regulations 1991 (SI1991/893) were made.
8. Amendment no 6 (in inserting new section
(22F)) restates the existing section 23 (9) which provides
for the paragraphs in Part 2 of Schedule 2 to provide in particular
for the regulations that can be made under the power described
above. Amendment 29 amends and replaces paragraphs in Part 2 of
Schedule 2 of the Children Act 1989 as follows:
- Introduces new paragraph 12A which
restates the existing paragraph 14;
- Introduces new paragraph 12B which restates existing
paragraph 13;
- Introduces new paragraph 12C which replicates
clause 8 (2) new subsection 7B (the intention remains to use the
power in the way described in paragraphs 27-29 of the original
memorandum to the committee);
- Introduces new paragraph 12D on which we comment
further below;
- Introduces new paragraph 12E which restates existing
paragraph 12;
- Introduces new paragraphs 12F and 12G which replicates
those inserted by clause 30 (3) - 12A (1) and 12B (the intention
remains to use the powers in the way described in paragraphs 80-86
of the original memorandum to the committee).
9. New paragraph 12D provides for regulations
to be made by the appropriate national authority that impose requirements
with which local authorities must comply before they may make
a decision about a child's placement if the child is in Key Stage
4. This is to meet particular concerns about the effect of placement
decisions that disrupt education during these crucial years, when
the impact on educational attainment is greatest. It is intended
that the power will be exercised in the new care planning regulations
(that will replace the existing Arrangements for Placement of
Children (General) Regulations 1991) to set out a process that
a local authority must follow to ensure that it has fully considered
the options available, and their impact on the child's education
and welfare. The Department considers that it is appropriate for
exercise of these powers, which concern the detail of implementation,
to be subject to the negative procedure.
Amendments Nos 10-19, 28, 41
Amendments to clause 12 in relation to Wales
Powers conferred on: Welsh Ministers
Powers exercised by: Order
Parliamentary procedure: Affirmative
10. Clause 12 currently provides powers to make
national arrangements for delivery of IRO functions and related
matters in England, either through a new body corporate or by
adding these functions to the existing functions of CAFCASS, if,
in future, evidence suggests that IROs are not securing significant
improvements for children in care. The nature and justification
for these powers were fully described in the original memorandum
and commented on in the delegated Powers and Regulatory Reform
Committees first report of this session.
11. Amendments no 13-15 put in place similar
arrangements in relation to Wales; to provide equivalent powers
for the Welsh Ministers to establish national arrangements for
delivery of IRO functions, either through a new body corporate
or by conferring such functions on the Welsh Ministers. The amendment
would provide for Welsh Ministers to exercise such a power by
order, which would be laid and approved by the National Assembly
for Wales and having been so approved, be laid and approved by
a resolution of each House of Parliament. This power is like the
power in relation to England, subject to a sunset clause and if
it is not exercised in relation to Wales by the end of a period
of 7 years from when the Act is passed will cease to have effect.
12. The Secretary of State already has a
power to issue directions to CAFCASS regarding the exercise
of its functions. Amendment no 14 introduces an equivalent
power so that if the functions in clause 12 were conferred on
a new body corporate rather than CAFCASS, they would be
performed in accordance with directions given by the Secretary
of State.
Amendments Nos 20-25, 27, 32, 34
Appropriate National Authority
13. These amendments deal with various references
to the "Secretary of State" in Part 3 of the Children
Act 1989. Broadly the effect of the amendments is to substitute
"appropriate national authority" for any references
to "Secretary of State". This will make it clear where
powers are to be exercised by Welsh Ministers rather than the
Secretary of State in light of the Government of Wales Act 2006.
It is becoming standard practice to take the opportunity presented
by legislation to amend existing statutes to up date references
to those exercising delegated powers in line with the devolution
settlement in Wales.
Amendments Nos 1-3
Regulation of Social Work Practices
14. Paragraphs 20 and 21 of the original memorandum
outlined that Clause 4 provides for the regulation of providers
of social work services under the Care Standards Act 2000. Amendments
1-3 comprise minor and technical amendments intended to ensure
clarity and consequential amendments arising from the Health and
Social Care Bill.
Department for Children, Schools and Families
February 2008
| 
