Office of Public Sector Information
135.Section 33 amends sections 83(1) and 83(2) of the 1989 Act to include LSCBs, to provide a statutory power to the Secretary of State and to local authorities to conduct research into the functions of LSCBs.
136.Section 33 further amends section 83(3) of the 1989 Act to provide that a local authority must at such times and in such form as the Secretary of State may direct transmit to him such particulars as he may require as to the performance by the LSCB for the local authority’s area of all or any of their functions.
137.The section also amends the list of relevant enactments at section 83(9) of the 1989 Act for the purposes of sections 83(1)(a) and 83(2)(a) of this Act, which gives statutory powers to the Secretary of State and to local authorities respectively, to conduct, or assist other persons, in conducting research into specified matters including the functions, of the Secretary of State, and for the purposes of section 83(3), which requires local authorities to provide information to the Secretary of State in respect of the performance of their functions under the relevant enactments. It amends the list of relevant enactments by adding:
Part 1 of the Adoption and Children Act 2002;
the Children Act 2004; and
the Children and Young Persons Act 2008.
138.Section 34 amends the existing powers in section 12 of the Adoption and Children Act 2002 which enable regulations to provide for the independent review of qualifying determinations, to ensure that the provisions are aligned with the new provisions that relate to the independent review of qualifying determinations in relation to local authority foster carers set out in paragraph 4 of Schedule 1 (see new paragraph 12F) and Schedule 2 (transitory provisions).
139.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. By virtue section 144(1) of the Adoption and Children Act 2002 and Schedule 11 to the Government of Wales Act 2006, “appropriate Minister” means, in relation to England, the Secretary of State and in relation to Wales, Welsh Ministers.
140.Subsections (3) 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.
141.Section 45 of the Children Act 2004 gives the Secretary of State the power to establish, through regulations, a scheme for the registration of private foster carers. Section 46 confers equivalent powers on the Welsh Ministers. These provisions allow the regulations to specify, for example, how a local authority should determine suitability of private fostering arrangements, the grounds on which individuals may be disqualified from private fostering, how individuals may appeal against decisions regarding their registration and how the registration scheme application would work in practice.
142.Section 47 provides that if no regulations have been made under either section within fours years of Royal Assent, then the relevant section will cease to have effect. This operates independently in England and Wales, so if regulations are not made in England within the four year period, the power in section 45 (to make regulations in England) expires even if regulations have been made under section 46 in Wales (and vice versa).
143.Section 35 amends section 47 so that the powers will not lapse for a further 3 years i.e. until November 2011.
144.Private fostering is regulated by Part 9 of and Schedule 8 to the 1989 Act and the Children (Private Arrangements for Fostering) Regulations 2005/1533.
145.A “privately fostered” child is one who:
is cared for by a person who is not a relative and who does not have parental responsibility and is provided with accommodation in that person’s home, and;
is under the age of 16, or under the age of 18 if they are disabled,
where the care and accommodation have been provided for more than 28 days (or where the intention is to accommodate for longer than 28 days). This is defined in section 66 of the 1989 Act.
146.Section 36 provides that an application for a residence order may be made by a relative, without first seeking the permission of the court, in circumstances where the child has been living with them for one year immediately prior to the application. The section inserts a new subsection (5B) in section 10 of the 1989 Act to that effect. The existing qualifying condition for relatives is that the child must have been living with them for a period of three years out of the last five years.
147.Section 113 of the Adoption and Children Act 2002 amended the qualifying condition for a local authority foster carer applying for a section 8 order, including a residence order to a one year period. These sections are intended to align the position of relative carers with local authority foster carers.
148.A relative is defined in section 105 of the 1989 Act as a grandparent, brother, sister, uncle or aunt (whether of the full blood or half blood or by marriage or civil partnership) or step-parent.
149.At present, a residence order ceases to have effect when the child reaches the age of 16, unless the court is satisfied that the circumstances are exceptional e.g. the child has a learning disability. Section 114 of the Adoption and Children Act 2002 empowered the courts to direct in appropriate cases that a residence order made in favour of someone who is not the parent or guardian of a child may be extended until the child reaches the age of 18.
150.Section 37 amends sections 9 and 12 of the 1989 Act so that a residence order, unlike other section 8 orders, will last until the child reaches the age of 18 unless the courts directs that the order should end earlier or another order is made discharging the residence order prior to that date. The intention is to provide enhanced security for the child where the holder of a residence order who is not the child’s parent is caring for the child on a long term basis.
Special guardianship orders
151.Section 38 mirrors the provision in section 36 above in relation to relatives applying for special guardianship orders and amends section 14A(5) of the 1989 Act to that effect.
152.Sections 39 to 45 contain general provisions including those relating to the exercise of powers to make orders and regulations; general interpretation provisions, commencement, extent of the Act, repeals and the short title of the Act.
153.Provisions in the Act, notably sections 8, 9, 10, 15, 16, 18, 19 and 25; andSchedules 1 and 2insert new provisions into the 1989 Act, primarily into Part 3 and Schedule 2. The new provisions reflect the current status of devolution under the Government of Wales Act 2006 and, where appropriate, refer to “Welsh Ministers” directly, or to the Welsh Ministers as the “appropriate national authority”. These references are not textually consistent with existing references in Part 3 of the 1989 Act to the “Secretary of State”, which are to be read (where appropriate) as references to the Welsh Ministers by virtue of the Government of Wales Act 2006. Therefore, in order to achieve clarity and textual consistency in the Parts of 1989 Act that are amended by this Act, section 39 gives effect to Schedule 3, which amends Parts 3 and 7 of, and Schedule 2 to, the 1989 Act by substituting references to the Welsh Ministers or to the appropriate national authority, for existing references to the Secretary of State. Schedule 3also inserts a new section 104A into the 1989 Act, which makes provision for regulations and orders made by the Welsh Ministers under Part 3 and certain other parts of that Act.
General
154.Section 40 provides that all subordinate legislation made under the Act is to be made by statutory instrument. Any statutory instruments made by the Secretary of State under section 1(6) or (7) (social work practices) or section 11(independent reviewing officers) are subject to the affirmative resolution procedure (subsection (2)). All other statutory instruments made by the Secretary of State will be subject to the negative resolution procedure (subsection (3)), except for commencement orders made under section 44 which will not be subject to any parliamentary procedure. (See paragraph 18 for an explanation of the affirmative resolution procedure and the negative resolution procedure.)
155.Subsection (4) of section 40 mirrors subsection (2), and makes the exercise by the Welsh Ministers of their power to make regulations under section 1(6) or 1(7) subject to approval by a resolution of the National Assembly for Wales, the equivalent in relation to Wales of the affirmative resolution procedure.
156.Subsection (5)(a) provides for the exercise by Welsh Ministers of their power under section 12 to create a new body to carry out functions in relation to Independent Reviewing Officers, or to confer those functions on themselves, to be made subject to approval by a resolution of the National Assembly for Wales (affirmative resolution procedure). Subsection (5)(b) provides for additional scrutiny by Parliament of the exercise of the power under section 12, following the passing of the resolution required by subsection (5)(a). The additional Parliamentary scrutiny is considered necessary because the power conferred on the Welsh Ministers by section 12 extends beyond the current legislative competence of the National Assembly for Wales under the Government of Wales Act 2006.
157.Subsections (6) and (7) make provision for the procedure to be followed by the First Minister (appointed under section 46 of the Government of Wales Act 2006) and by the Secretary of State, following the passing of the resolution required by subsection (5)(a).
158.Subsection (8) removes the requirement in subsection (5)(b) for additional Parliamentary scrutiny following the passing of the resolution required by subsection (5)(a), in the event that an order is made under section 105 of the Government of Wales Act 2006 bringing the Assembly Act provisions into force. The effect of making such an order would be to substantially extend the legislative competence of the National Assembly for Wales, bringing the power conferred on the Welsh Ministers by section 12 within the Assembly’s legislative competence, with the result that the requirement for additional Parliamentary scrutiny of the exercise of the power in subsection (5)(b) would become inconsistent with the new stage of devolution, and therefore no longer be necessary.
159.A commencement order made by Welsh Ministers under section 44 is not to be subject to scrutiny by the National Assembly for Wales (subsection (11)). Any subordinate legislation made by the Welsh Ministers – other than subordinate legislation made under sections 1(6) or (7), 12 or 44 – will be capable of being annulled by a resolution of the National Assembly for Wales.
160.Section 42 introduces the repeal schedule (Schedule 4) which specifies the extent to which the enactments listed are to be repealed.
161.Section 44 of the Act makes provision for commencement. The provisions of the Act will be brought into force by way of a commencement order made by the Secretary of State in relation to England, and the Welsh Ministers in relation to Wales, with the exception of:
section 7 (which applies to England only) and Part 5 (except section 42 and Schedule 4 (repeals)), which come into force on Royal Assent;
an order bringingsubsection (2) of section 10 into force in relation to Wales requires the consent of the Secretary of State;
Orders bringing sections 17 and 18 into force are to be made by the Secretary of State in relation to England and Wales but require the consent of the Welsh Ministers;
before making an order bringing sections 31 and 32 into force the Secretary of State must consult Welsh Ministers
paragraph 4 of Schedule 2, which comes into force in accordance with section 44(9).
The following table sets out the dates and Hansard references for each stage of the Act's passage through Parliament.
| Stage | Date | Hansard reference |
|---|---|---|
| House of Lords | ||
| Introduction | 14 November 2007 | Vol. 696, Col. 472 |
| Second Reading | 26 November 2007 | Vol. 696, Cols. 1041 - 1100 |
| Committee | 8 January 2008 14 January 2008 16 January 2008 17 January 2008 18 February 2008 |
Vol. 697, GC261 – 328, GC387 – GC460 and GC509 – GC628 Vol. 699, GC12 – 23, GC37 – 81 and GC94 – 124 |
| Report | 17 March 2008 | Vol. 700, Cols. 10 – 19 and 29 – 87 and 101 – 134 |
| Third Reading | 25 March 2008 | Vol. 700, Cols 447 - 448 |
| House of Commons | ||
| Introduction | 26 March 2008 | |
| Second Reading | 16 June 2008 | Vo. 477, Cols 721 – 778 |
| Committee | 24 June 2008 26 June 2008 1 July 2008 3 July 2008 |
Official Report, Children and Young Persons Bill Committee: 1st to 7th sittings |
| Report and Third Reading | 8 October 2008 | Vol. 480, Cols. 303 - 378 |
| Consideration of amendments | ||
| Lords Consideration of Commons Amendments | 13 November 2008 | Vol. 705, Cols 791 - 801 |
| Royal Assent – 13 November 2008 | House of Lords Hansard Vol. 705, Col. 832 House of Commons Hansard Vol. 482, Col. 1005 |
The expression “care leavers” includes for the purposes of section 1 of the Act:
relevant children within the meaning of section 23A of the 1989 Act (that is, 16 and 17 year olds who have been looked after for at least 13 weeks attaining the age of 14 and have been looked after at some time while 16 or 17 and are no longer looked after);
former relevant children within the meaning of section 23C of the 1989 Act (that is, young people aged over 18 years who were “looked after” for at least 13 weeks immediately before their 18th birthday or who were relevant children; and
persons qualifying for advice and assistance within the meaning of section 24(1) of the 1989 Act.
“Children in care” or “children in public care” are the expressions used by practitioners to describe children who are looked after by a local authority under Part 3 of the 1989 Act. Strictly speaking, the expression “in care” should only be used in respect of a child who is in the care of a local authority by virtue of a care order made under section 31(1) of the 1989 Act or an interim care order made under section 38 1989 Act. “Looked after children” is the collective term for children who are the subject of care orders or interim care orders; who have been provided by the local authority with accommodation for more than 24 hours either under section 20 (sometimes referred to as “voluntary accommodation”) or for their own protection or by virtue of an order made in criminal proceedings (under section 21); or who have been placed or authorised to be placed with prospective adopters by a local authority (but not a registered adoption society).
A non-departmental public body (NDPB) established on 1 April 2001 as a dedicated national service to promote the best interests of children involved in family court proceedings in England. In Wales, equivalent functions are performed by Welsh Ministers. CAFCASS looks after the interests of children involved in family proceedings, for example, when parents who are separating or divorcing cannot agree on arrangements for their children. It works with children and their families, and then advises the courts on what it considers to be in the children’s best interests.
The Children Act 2004 requires every top-tier or unitary local authority in England to appoint a DCS for the purposes of authorities’ education and social services functions for children, and any health functions for children delegated to the authority by an NHS body. In Wales, children’s services authorities must appoint a lead director for children and young people’s services to coordinate and oversee arrangements made under sections 25 and 26 of the Chdilren Act 2004.
Foster care refers to a type of placement in which the child lives with an individual in their family home. Local authority foster parents (that is a foster carer with whom a child has been placed under section 22C of the 1989 Act (inserted by section 8 of this Act, replacing section 23 of the 1989 Act)) must be approved by fostering services providers that are registered under the Care Standards Act 2000.
Independent reviewing officers are registered social workers who are independent of the management of the cases of children in care that they review (defined in relation to England, in regulation 2A of the Review of Children’s Cases Regulations 1991 as amended by Statutory Instrument 2002/1419, and in relation to Wales, in the Review of Children’s Cases (Wales) Regulations 2007). Since September 2004, local authorities have been required to appoint independent reviewing officers to chair all statutory review meetings for children in care. They must monitor the local authority’s performance in relation to the review, working with them to ensure children’s needs are being met.
LSCBs were established in relation to England under section 13 of the Children Act 2004. The equivalent provision in relation to Wales is section 31 of that Act. The membership of LSCBs includes local authorities, health bodies, the police and others. They are the main statutory mechanism to coordinate and ensure the effectiveness of their member agencies in safeguarding and promoting the welfare of children.
The National Minimum Standards set out the minimum that is expected of providers of specific services, such as fostering services and children’s homes. They are enforced through regulations made under the Care Standards Act 2000.
Refers to an arrangement in which a child is placed in accommodation outside the boundaries of the local authority which is its corporate parent. In these circumstances the placing authority is required to notify the authority in which the child is placed so that arrangements to meet the child’s needs can be made.
Section 3(1) of the 1989 Act defines parental responsibility as “all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and his property.” Local authorities share parental responsibility with the birth parents for children in care under a care order. The provision of local authority accommodation under section 20 of the 1989 Act, however, has no effect on parental responsibility and parents may remove their children from such accommodation at any time, without notice.
Personal advisers provide information, advice and guidance, support for young people aged 13 to 19, including vulnerable young people requiring more substantial one-to-one support. Their key objective is to support young people to remain in learning and to fulfil their potential. Most looked after children and care leavers (both relevant children and former relevant children) are entitled to a personal adviser, who will work with them to develop their pathway plan that sets out the services that will be provided to assist their transition to adulthood and independence.
In social care, placement refers to the accommodation (i.e. physical living situation) in which a child in care is “placed” by the local authority. This reflects the wording used in the 1989 Act, in particular section 23. A new definition of “placement” is provided in new section 22C(6), substituted for section 23 of the 1989 Act by section 8 of the Act. A placement may be with foster carers or in a residential children’s home, for example.
In England, primary care trusts (PCTs) are local free-standing NHS statutory bodies, responsible for planning, providing and commissioning health services for the local population. The government sees PCTs as the cornerstone of the NHS. Established under the provisions of the Health Act 1999, they provide all local GP, community and primary care services, and commission hospital services from other NHS trusts.
A relative is defined in section 105 of the 1989 Act as “in relation to a child, […] a grandparent, brother, sister, uncle or aunt (whether of the full blood or half blood or by marriage or civil partnership) or step-parent.”
A Special Guardianship Order made under section 14B of the 1989 Act gives carers, such as grandparents or existing foster parents, parental responsibility, which they can exercise to the exclusion of other people with parental responsibility (except other special guardians) and responsibility for all aspects of caring for the child or young person, and for taking decisions to do with their upbringing. Special Guardianship preserves the basic legal link between the child or young person and their birth family, and the special guardian is entitled to an assessment of his need for support services (section 14F of the 1989 Act).
Children and Young Persons Act 2008