2004 Chapter 31

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These notes refer to the Children Act 2004 c.31 which received Royal Assent on 15^th November 2004

CHILDREN ACT 2004

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Children Act 2004 which received Royal Assent on 15^th November 2004. They have been prepared by the Department for Education and Skills (DfES) in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. 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 September 2003, the Government published the Every Child Matters Green Paper alongside its formal response to the Victoria Climbi, Inquiry Report. The Green Paper proposed changes in policy and legislation in England to maximise opportunities and minimise risks for all children and young people, focusing services more effectively around the needs of children, young people and families.

4.     The consultation on the Green Paper showed broad support for the proposals, in particular the intention to concentrate on outcomes that children and young people themselves have said are important, rather than prescribing organisational change. The Act has been produced in the light of this consultation and gives effect to the legislative proposals set out in the Green Paper to create clear accountability for children's services, to enable better joint working and to secure a better focus on safeguarding children. Alongside the Act, the Government has published Every Child Matters: Next Steps. This provides details of the consultation response and the wider, non-legislative, elements of change that are being taken forward to promote the well-being of all children.

5.     To ensure a voice for children and young people at national level Part 1 of the Act provides for the establishment of a Children's Commissioner (in these notes referred to as 'the Commissioner'). Under section 2, the Commissioner's role will be to promote awareness of the views and interests of children (and certain groups of vulnerable young adults) in England. The Commissioner will also be able to hold inquiries - on direction by the Secretary of State or on his own initiative - into cases of individual children with wider policy relevance in England or, on non-devolved matters, in other parts of the UK. Sections 5, 6, and 7 give the Commissioner functions in relation to non-devolved matters in Wales, Scotland, and Northern Ireland. These functions are the same as the functions which the Commissioner has in England under sections 2, 3, and 4 namely promoting awareness of the views and interests of children and holding inquiries on direction by the Secretary of State or on his own initiative.

6.     Part 2 of the Act gives effect in England to the principal legislative proposals contained in the Green Paper to support better integrated planning, commissioning, and delivery of children's services and provide for clear accountability.

7.     In particular, the Act places a duty on local authorities to make arrangements through which key agencies co-operate to improve the well-being of children and young people and widen services' powers to pool budgets in support of this. To ensure that, within this partnership working, safeguarding children continues to be given priority the Act places a responsibility for key agencies to have regard to the need to safeguard children and promote their welfare in exercising their normal functions. It also establishes statutory Local Safeguarding Children Boards to replace the existing non-statutory Area Child Protection Committees. In addition, it provides for regulations to require children's services authorities to prepare and publish a Children and Young People's Plan (CYPP) which will set out their strategy for services for children and relevant young people (sections 10, 11, 13-16, 17).

8.     To support professionals in working together and sharing information to identify difficulties and provide appropriate support, this part of the Act also allows for the creation of databases holding information on all children and young people (section 12).

9.     Part 2 includes measures to ensure clear accountability for children's services. The Act will require local authorities in England to put in place a director of children's services to be accountable for, as a minimum, the local authority's education and social services functions in so far as they relate to children. It will also require the designation of a lead member for children's services to mirror the director's responsibilities at a local political level (sections 18 and 19).

10.     To ensure a shared approach across inspections, sections 20 to 24 allow for the creation of an integrated inspection framework and for inspectorates to carry out joint reviews of all children's services provided in an area. (In support of this integrated approach, section 50 extends existing intervention powers in relation to education functions of local authorities to children's social services.)

11.     Part 3 of the Act provides for similar provisions to those in Part 2 to be made in Wales, but allows for implementation within the different context that exists for children's services there. In particular, reflecting this difference, in Wales authorities will be required to identify lead directors and members for children's services for local authorities, local health boards and NHS trusts. For Wales there are no provisions on inspection equivalent to those in sections 20 to 24.

12.     Part 4 of the Act provides for the devolution of CAFCASS functions in Wales to the Assembly.

13.     Part 5 of the Act makes a number of further provisions:

• to strengthen the existing notification arrangements for private fostering, with a reserve power to introduce a registration scheme should these not prove effective (sections 44 to 47);

• to clarify and simplify the registration of child minders and providers of day care (section 48);

• to make provision for the level of payments to be made to foster parents caring for looked after children placed with them by local authorities and to foster parents caring for children placed with them by voluntary organisations (section 49);

• to provide for the extension of existing intervention powers as mentioned above (section 50);

• to provide for an extension of inspection powers under section 38 of the Education Act 1997 (section 51);

• to create a new duty for local authorities to promote the educational achievement of looked after children and an associated power to transmit data relating to individual children in monitoring this (section 52 and 54);

• to place on local authorities a new duty, before determining what (if any) services to provide under section 17 of the Children Act 1989 for a particular child in need, to ascertain the child's wishes and feelings regarding the provision of those services, and give due consideration to them (section 53);

• to remove now unnecessary provisions in relation to social services committees (section 55);

• to allow for the payment of fees to adoption review panel members (section 57);

• to restrict the grounds on which the battery of a child may be justified as reasonable punishment (section 58);

• to allow grants to be paid across the range of children, young people and families services (section 59);

• to remove the power to make a care order at a lower threshold than would be usual under the Children Act 1989 as a sanction for not complying with a Child Safety Order (section 60);

• to give the Children's Commissioner for Wales the power to enter premises, other than private homes, to interview children when reviewing and monitoring the functions of and arrangements made by the Assembly and other specified persons (section 61);

• to amend section 97 of the Children Act 1989 and section 12 of the Administration of Justice Act 1960 to make clear that the publication of material from family proceedings which is intended, or likely, to identify any child as being involved in such proceedings (or the address or school of such a child) is only prohibited in relation to publication of information to the public or any section of the public and make it clear that rules of court will set out the cases in which publication of information relating to children is authorised (section 62);

• to amend Schedule 5 of the Tax Credits Act 2002 to enable the Inland Revenue to share Tax Credit, Child Benefit or Guardian's Allowance information (except where it relates to a person's income) with local authorities (or, in Northern Ireland, Health and Social Services Boards) for the purposes of enquiries and investigations relating to the welfare of a child (section 63).

TERRITORIAL APPLICATION

14.     Part 1 of the Act, which establishes the Commissioner, extends to the whole of the United Kingdom.

15.     Part 2 is concerned only with England and Part 3 only with Wales. Part 4 devolves to Wales functions previously exercised across England and Wales together. The provisions of Part 5 on the whole apply to England and Wales together (although sections 45 and 46 provide separate powers for registration schemes in England and Wales respectively). Section 63 applies to the whole of the UK.

COMMENTARY ON SECTIONS

PART 1 - CHILDREN'S COMMISSIONER

Section 1: Establishment

16.     Subsection (1) establishes the office of the Commissioner. Subsection (2) gives effect to Schedule 1.

Schedule 1: Children's Commissioner

17.     This Schedule makes provision concerning the status, general powers, appointment, and remuneration of the Commissioner. It provides for the staffing of his office, and accounting procedures. It also adds the Commissioner and members of his staff to the list of office holders who are disqualified from being members of the House of Commons or the Northern Ireland Assembly.

18.     Paragraph 3(2) of Schedule 1 places a duty on the Secretary of State to involve children in the appointment of the Commissioner to the extent he feels is appropriate and in a manner he chooses.

19.     Paragraph 11 of Schedule 1 amends the Criminal Justice and Court Services Act 2000. Section 35 of the Act makes it an offence for someone who is disqualified under the Act from working with children knowingly to apply for, offer to do, accept or do any work in a regulated position as defined in section 36. Paragraph 11 adds the Commissioner and his deputy to the list of regulated positions in section 36.

Section 2: General function

20.     The general function of the Commissioner is set out in subsection (1). The Commissioner is to promote awareness of the views and interests of children in England. As well as those under 18, the term 'children' includes persons aged 18, 19 and 20 who have been looked after by a local authority at any time after attaining the age of 16 or who have a learning disability. He will be expected to raise the profile of the issues that affect and concern children in England, and promote awareness and understanding of their views and interests among all sectors of society, both public and private. The Commissioner will therefore be expected actively to gather and understand the views of children from all backgrounds. However, the Commissioner will also be expected to use his own judgement in determining the interests of children, which may not always be the same as their own expressed wishes, especially with younger children.

21.     Subsection (2) provides more detail of what the Commissioner may do in the exercise of his function. The Commissioner, under subsection (2)(a), may encourage persons exercising functions or engaged in activities affecting children, to take account of their views and interests. In exercising that power, it is intended that he will encourage them, for example by sharing best practice, to ensure that the views and interests of children inform the development and delivery of their policies and practices. Not only will the Commissioner want to represent the views of children, he will encourage such persons to be proactive in gathering children's views themselves.

22.     Under subsection (2)(b) the Commissioner is to be able to give advice to the relevant Secretary of State on matters affecting children, such as the development of policy or legislation. It is intended that the Commissioner will give advice on his own initiative and respond to requests for advice from any Secretary of State, but due to constraints on time and resources this may not always be possible, and the Commissioner will be expected to use his own judgment to prioritise requests.

23.     In considering or researching the operation of complaints procedures under subsection (2)(c) the Commissioner will want to see that they are effective and quick and easy for children to access and follow. The Commissioner will be able to look at any services, procedures or arrangements relevant to children, both public and private. It is envisaged that in doing this the Commissioner will work with the relevant Ombudsmen and statutory bodies as appropriate.

24.     Under subsection (2)(d) the Commissioner will have wide discretion over other matters relating to the interests of children that he chooses to consider or research.

25.     Under subsection (2)(e) the Commissioner will be able to publish a report on any matter considered or researched by him while carrying out his section 2 function.

26.     In carrying out his general function the Commissioner should have particular regard to the aspects of well-being set out in subsection (3)(a) - (e). These reflect the five outcomes which, during the development of the Green Paper Every Child Matters, children identified as being the most important to them. It is intended that they form the framework for the Commissioner's activities. Through carrying out his general function the Commissioner will monitor and stimulate progress towards achieving these outcomes for all children.

27.     Subsection (4) places a duty on the Commissioner to take reasonable steps to involve children in all of his work. This will ensure that his work is informed by the views of children. In particular the Commissioner has to make sure that children know what he does and how to contact him. He must also consult children and organisations which work with them on the work to be undertaken by him. It will be for the Commissioner to determine how he does this as is appropriate to the circumstances. The intention is that the views of children drive the work of the Commissioner.

28.     Subsection (5) requires the Commissioner, when publishing a report made under this section, to publish the report in a version that is suitable for children or a particular group of children, as the Commissioner feels is appropriate.

29.     The intention behind subsection (6) is that the Commissioner should pay particular regard to disadvantaged children who are most vulnerable or may need extra support in making their views known. It is intended that the Commissioner will be proactive in seeking and reflecting the views of children whose voices might not otherwise be listened to.

30.     Subsection (7) prohibits the Commissioner from conducting investigations into individual cases. The intention is that this will allow him to concentrate on the broader issues that affect children.

31.     Subsection (8) is intended to ensure that the Commissioner can get access to children for the purpose of getting their views. It ensures that the Commissioner can access children accommodated or cared for outside their homes (for example, in young offender institutions, children's homes or residential schools) and gives him access to such establishments and the right to speak to a child in private if the child consents to this.

32.     To assist the Commissioner further, subsection (9) places a duty upon bodies with statutory functions to provide him with information that he requests as long as it is information that they already hold and can be disclosed lawfully to the Commissioner.

33.     Subsection (10) gives the Commissioner the power to follow up recommendations made by him in any of the reports he produces when carrying out his duties under section 2. Bodies with statutory functions that are subject to recommendations must inform the Commissioner, in writing, in any time period dictated by the Commissioner, what action they are taking or proposing to take in response to these recommendations.

34.     Under subsections (11) and (12) the Commissioner must have regard to the relevant provisions of the United Nations Convention on the Rights of the Child (UNCRC) in his consideration of what the interests of children are. The Commissioner's work will be driven and shaped by the views and interests of children. The UNCRC provides a set of principles to which the Commissioner may wish to refer and upon which he may wish to draw as he carries out his function.

Section 3: Inquiries initiated by the Commissioner

35.     This section permits the Commissioner to initiate inquiries into individual cases that meet certain criteria. It applies to all matters relating to children in England.

36.     Subsections (1) and (2) set out the criteria that the Commissioner must consider before starting an inquiry. The case concerned must raise issues of public policy that would be relevant to other children. This would for example mean that the Commissioner could hold an inquiry into the case of a child in a children's home or a residential school if the issues involved were relevant in general to children in such an establishment, but not if they were only relevant to children in that particular establishment. The Commissioner must satisfy himself that an inquiry would not duplicate the work that was the function of another person and to this end he must consult others who might have such a function. The Commissioner could carry out an inquiry if after conducting the appropriate consultation he had established that a person who might carry out an inquiry was not going to do so; or that his inquiry would be looking at an aspect of a case which was different from the aspect that someone else's inquiry would look at so his inquiry would not amount to a duplication of work. The aim of the inquiry must be to investigate the public policy issues arising from the case and make recommendations relating to them.

37.     Subsection (3) requires the Commissioner to consult the Secretary of State before holding an inquiry. The Secretary of State may offer guidance, but has no power to veto an inquiry: the final decision is for the Commissioner. Sub-section (4) allows the Commissioner to decide whether to hold all or part of an inquiry in private.

38.     Subsection (5) requires the Commissioner to publish a report and send a copy of it to the Secretary of State as soon as possible after completing the report. Subsection (6) permits the Commissioner to protect a child's identity in the inquiry report.

39.     Subsection (7) gives the Commissioner the power to follow up recommendations made by him in any report he produces after conducting an inquiry that he himself has initiated. Bodies with statutory functions that are subject to recommendations must inform the Commissioner, in writing, in any time period dictated by the Commissioner, what action they are taking or proposing to take in response to these recommendations.

40.     Subsection (8) gives the Commissioner a range of powers to assist him in carrying out an inquiry under this section. By virtue of the application of subsections (2) and (3) of section 250 of the Local Government Act 1972 the Commissioner will, when conducting an inquiry in England, be able to summons people to attend to give evidence or to produce documents and to administer oaths and take evidence on oath and it will be an offence to disobey a summons by for example refusing to give evidence or by tampering with documentary evidence.

Section 4: Other inquiries held by the Commissioner

41.     Subsection (1) enables the Secretary of State to direct the Commissioner to hold an inquiry into the case of an individual child, where the Secretary of State considers the case to be of wider relevance or have implications for other children. In contrast to the power under section 3, the Commissioner could under this section carry out an inquiry into a case which only has implications for a small group of children. So, for example, he could hold an inquiry into the case of a child in a children's home or a residential school if the issues involved were relevant in general to children in such an establishment, or if they were only relevant to children in that particular establishment. It is envisaged that the Commissioner will play a role in determining whether a case is relevant, for example through his ability to offer advice to the Secretary of State.

42.     The Commissioner may hold the inquiry in private (subsection (2)) and he must make and send to the Secretary of State a report in relation to the inquiry as soon as possible after he has completed it (subsection (3)).

43.     Subsection (4) requires that in most cases the Secretary of State publish the report as soon as possible. Under subsection (5), however, where he thinks it would be undesirable for the identity of the child to be made public, he may publish an edited version of the report (making only those amendments necessary to protect the identity of the child), or, if it is not possible to publish a version of the report without identifying the child, withhold publication altogether. Subsection (6) requires the Secretary of State to lay a copy of each report published by him before each House of Parliament.

44.     Subsection (7) gives the Commissioner a range of powers to assist him in carrying out an inquiry under this section. By virtue of the application of subsections (2) to (5) of section 250 of the Local Government Act 1972 the Commissioner will, when conducting an inquiry in England, be able to summons people to attend to give evidence or to produce documents and to administer oaths and take evidence on oath; it will be an offence to disobey a summons by for example refusing to give evidence or by tampering with documentary evidence; the Secretary of State can direct parties to the inquiry to pay his costs and make orders for parties to pay the costs of other parties to the inquiry.

Section 5: Functions of Commissioner in Wales

45.     Subsection (1) gives the Commissioner the function of promoting awareness of the views and interests of children in Wales, but only in relation to those matters which do not already fall within the remit of the Children's Commissioner for Wales under section 72B, 73 or 74 of the Care Standards Act 2000. The functions given to the Children's Commissioner for Wales by those sections (the review of the exercise of functions of the Assembly and other specified bodies, the review and monitoring of various arrangements made by specified bodies, and the examination of particular cases) extend to bodies that have statutory functions in Wales or that provide statutory services that come within the functions of the Assembly. Subsection (2) gives the Commissioner the same powers and duties in relation to this function as he has for his function under section 2.

46.     Subsection (3) places a duty on the Commissioner to take account of the views of and any work undertaken by the Children's Commissioner for Wales when he is carrying out his function under subsection (1).

47.     Subsections (4) and (6) give to the Commissioner the power to undertake inquiries, at his own initiation and at the direction of the Secretary of State respectively, in relation to the case of an individual child in Wales, so long as it does not fall within the remit of the Children's Commissioner for Wales as described in subsection (1). Subsections (5) and (7) import to those inquiry functions the powers and duties given to the Commissioner in respect of inquiries carried out under sections 3 and 4.

Section 6: Functions of Commissioner in Scotland

48.     Subsection (1) gives the Commissioner the function of promoting awareness of the views and interests of children in Scotland in relation to reserved matters. Subsection (2) gives the Commissioner the same powers and duties in relation to this function as he has for his function under section 2.

49.     Subsection (3) places a duty on the Commissioner to take account of the views of, and any work undertaken by, the Commissioner for Children and Young People in Scotland when he is carrying out his function outlined in subsection (1).

50.     Subsections (4) and (7) give to the Commissioner the power to undertake inquiries, at his own initiation and at the direction of the Secretary of State respectively, in relation to the case of an individual child in Scotland so long as the issues raised by it relate to a reserved matter.

Section 7: Functions of Commissioner in Northern Ireland

51.     Subsection (1) gives the Commissioner the function of promoting awareness of the views and interests of children in Northern Ireland in relation to excepted matters. Subsection (2) gives the Commissioner the same powers and duties in relation to this function as he has for his function under section 2.

52.     Subsection (3) places a duty on the Commissioner to take account of the views of, and any work undertaken by, the Commissioner for Children and Young People for Northern Ireland when he is carrying out his function outlined in subsection (1).

53.     Subsections (4) and (7) give to the Commissioner the power to undertake inquiries, at his own initiation and at the direction of the Secretary of State respectively, in relation to the case of an individual child in Northern Ireland so long as the issues raised by it relate to an excepted matter.