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Clause 25: Requirements to be qualified, registered and licensed: Academies etc
110. This clause extends the existing powers of the Secretary of State to require teachers in maintained schools and non-maintained special schools to hold qualified teacher status and to be registered with the GTC to Academies, CTCs and CCTAs.
111. This clause also provides that the Secretary of State’s power under section 496 of the EA 1996 to prevent the unreasonable exercise of functions can be used if an Academy, CTC or CCTA fails to comply with regulations made under sections 133, 134 and 134A of the Teaching and Higher Education Act 1998. So, if regulations required teachers teaching in an Academy to hold qualified teacher status, be registered with the GTC and to hold a valid licence to practise, the Secretary of State could intervene if an Academy employed a teacher who did not meet these requirements.
Home education
Clause 26: Home Education: England
112. This clause needs to be read with Schedule 1. This clause and Schedule 1 introduce a registration scheme for children who are being educated at home in England. Home education is lawful and at present it is largely unregulated. Where a child has never attended school, parents are not required to inform their local authority that the child is being educated at home, or to seek approval of the home education being provided. The Schedule introduces a new registration scheme to enable local authorities in England to keep track of home-educated children. In terms of enforcement of the new system, the Schedule links the home education registration scheme to the school attendance order regime.
Home Education: registration and monitoring
113. Clause 26 gives effect to the provisions of the Schedule. Paragraph 1 of the Schedule inserts new sections 19A to 19I into Part 1, Chapter 3, of the EA 1996 (local authorities). The new sections impose new duties on English local authorities in relation to children who are to be electively home-educated.
114. New section 19A requires a local authority to keep a register of all children of compulsory school age in their area who are being educated entirely at home - i.e., none of whose education is provided at a school, or under section 19 of the EA 1996 (exceptional provision of education in pupil referral units or elsewhere).
115. Subsections (2) and (3) of new section 19A enable the Secretary of State to make regulations about how local authorities will maintain and amend the register. Subsection (4) of new section 19A defines what is meant by a “home-educated child” and “home education register”.
116. New section 19B sets out what a local authority is required to do when the parent of a home-educated child of compulsory school age in their area applies, in the prescribed way, for the child to be placed on their home education register. The authority must register the child unless they consider that the child is within subsection (6) or (7), or that subsection (8) applies to the child’s application. If they consider the child is within subsection (7), they must not register the child. But if they think the child is within subsection (6), or that subsection (8) applies to the child’s application, they may choose whether or not to register the child. For example, a child may be within subsection (7) if that child is subject to a child protection plan and is thought to be safer at school or in alternative provision than being educated at home. Giving local authorities the discretion to register in relation to children falling within subsections (6) and (8) will allow a local authority to consider issues and circumstances which are likely to be relevant to whether those children should be registered. The local authority must notify the child’s parent of registration or, if registration is refused, of this fact and the reasons for it (subsection (5)).
117. New section 19C confers power on the Secretary of State to make regulations about steps to be taken by a local authority in connection with an application for registration, and specifies that this may include provision as described in subsection (2).
118. New section 19C also specifies that the power conferred by section 19B(1)(a) may be used to make provision about the form and content of any application for entry on the home education register, and as described in subsection (5). There is a specific reference in subsection (4) of new section 19C to a statement giving information about the child’s prospective education. The Government envisages that all applications will be required to provide such a statement, or to provide an undertaking to provide such a statement. In addition the power under new section 19B(1)(a) is likely to be used as described in subsection (5), i.e. to make provision enabling an authority that has refused a child’s application, or revoked a child’s registration, to require a period of time to elapse before a fresh application is made in respect of the child. This would prevent local authorities from having to process immediate, subsequent re-applications for registration from parents where there have been no material changes in circumstances.
119. New section 19D makes provision about how long registration will last. It also provides that, for enforcement purposes, a child will be treated as registered as soon as an application for registration has been made.
120. The effect is that once an application has been made in respect of a child, the child will be treated as registered until the application is rejected, or (assuming that the application is successful) until the expiry of the period of 12 months from the date of registration. But if the child’s registration is revoked during that 12 month period, then the child will cease to be treated as registered as from the date of the notice of revocation that needs to be given to the child’s parent. The registration will also terminate if the child ceases to be of compulsory school age.
121. New section 19E obliges a local authority to make arrangements to monitor the education provided to a child on their home education register. The objective of the arrangements is to ascertain, as far as reasonably practicable, whether the child is receiving a suitable education, whether the education accords with the information given about it, what the child’s wishes and feelings about it are, and whether it would be harmful for the child’s welfare for the education to continue.
122. Subsection (2) of new section 19E defines what is meant by a suitable education for this purpose. Subsection (3) provides that the arrangements made by a local authority under new section 19E must include arrangements, in each registration period, for at least the meetings and visits described in that subsection- unless the registration period begins less than 6 months from the end of compulsory education, in which case the local authority has a power to make arrangements of the sort described in subsection (3) rather than a duty. The duty requires an authority to see a child, the parent and the place (or at least one of the places) where the education is to take place, at least once in any registration period. Where a local authority consider that someone other than the parent is primarily responsible for providing education then the local authority will be under a duty to see that other person as well, at least once in any registration period. For most home-educated children, these visits will be carried out concurrently. Subsection (4) explains that the local authority cannot make arrangements to see the child on their own if the child or the parent objects to such a meeting.
123. Subsection (5) explains that a local authority must give at least two weeks written notice of a proposed meeting or of a visit to a place where education is provided.
124. New section 19F gives a local authority the power to revoke registration on their home education register in certain circumstances. Where a local authority exercises this power, it must give notice of the revocation to the child’s parent (subsection (3)).
125. Section 19F(1)(a) to (g) set out the circumstances in which a local authority may revoke registration. Subsection (4) provides that in deciding for the purpose of revoking registration whether it would be harmful to the child’s welfare for home-education to continue, and whether the home-education being provided is suitable, the local authority is to take into account the wishes and feelings of the child as far as is reasonably practicable.
126. Subsection (2) of new section 19F provides a definition of suitable education for the purposes of revocation under section 19F(1). (This is the same as the definition in new section 19E.)
127. Subsection (5) of new section 19F gives power to the Secretary of State to make regulations about the specific actions that a local authority should take in connection with revocation, or proposed revocation. The regulations may (subsection (6)) include provision about matters that local authorities should and should not take into account when considering revocation.
128. New section 19G requires regulations to provide for a parent to be able to appeal against a local authority’s decision to refuse or revoke registration. The provision made by the regulations may include provision about the matters listed in subsection (2) - including the time limit for bringing appeals and the procedure on appeals. The regulations may also provide that where a right of appeal has been exercised in respect of a child’s registration, the child is to be treated as registered, for the purposes of enforcement, despite the refusal or revocation of registration.
129. New section 19H permits the Secretary of State to make regulations requiring information relating to a child to be supplied to a local authority in England, in certain circumstances, for the purposes of the exercise of their home-education functions. The persons who may be required to supply information are another local authority in England, and the proprietor of a school in England from which the child has been withdrawn for home-education. The Government intends to use this power, for example, to provide that if a school has been notified that a child is being withdrawn to be home-educated, and the school knows the identity of the local authority for the area where the child will be home-educated, the school must notify that local authority and pass on certain information about the child such as the child’s educational attainment to date.
130. New section 19I requires local authorities to have regard to any statutory guidance issued by the Secretary of State when exercising their functions under sections 19A to 19H.
Duty to make arrangements to identify unregistered children, etc
131. Paragraph 3 of Schedule 1 inserts a new section 436ZA into the EA 1996. This is needed to reflect the fact that, in England, home-educated children will need to be registered on their local authority’s home-education register. The new section requires a local authority in England to make arrangements to identify two categories of children of compulsory school age in their area. The first category is that consisting of children who are not home-educated, are not registered pupils at a school, and are not receiving suitable education provided under section 19 of the EA 1996 (alternative provision). Children within this category will be those who are not receiving any education at all, or who are receiving education under section 19 that for some reason is not suitable. The second category is that consisting of home-educated children who are not on the authority’s home education register.
132. Subsection (4) of new section 436ZA requires local authorities to have regard to any statutory guidance issued by the Secretary of State when exercising their function of making arrangements to identify these children.
School attendance orders
133. The new registration scheme is to be enforced through the existing system of school attendance orders. Paragraphs 5 - 10 of Schedule 1 amend the EA 1996 to provide for this. The bulk of the amendments are to sections 437, 442 and 443 of the EA 1996. There are also consequential amendments to sections 438 and 441 of the EA 1996. Since the provisions in the Bill about home education apply only in relation to local authorities in England, the result is that the school attendance order system will work slightly differently in England from the way in which it works in Wales. The amendments do not change the operation of the school attendance order system in Wales.
134. The result of the amendments to section 437 is that, if a child in the area of a local authority in England appears to the authority to be being home-educated, but is not on their home education register (and has not applied to go on the register), a school attendance order will be served - provided that the authority considers that it is expedient for the child to attend school (new subsection (3A) of section 437 of the EA 1996, as inserted by paragraph 5(6) of Schedule 1.) In considering for this purpose whether it is expedient that an unregistered home-educated child should attend school, an authority is to disregard the unregistered home education being provided to the child (new subsection (3B) of section 437). But they may consider other matters, for example whether alternative provision should be made for the child under section 19 of the EA 1996.
135. If a child in the area of a local authority in England does not appear to the authority to be a home-educated child, but it appears to the authority that the child is not receiving suitable education, then the effect of section 437(B1) of the EA 1996, as inserted by paragraph 5(2) of Schedule 1 is that the authority must serve notice on the child’s parent. If, in response to the notice, the parent satisfies the authority that the child is receiving suitable education provided at school or under section 19, or that the child is registered on their own or another authority’s home education register, then this will be the end of the matter. So for instance a parent of a home-educated child could respond to a notice by applying for registration, thus stopping the school attendance order process. Or a parent of a child who had not been attending school because of, for instance, bullying concerns, could decide to opt for home education, and make an application accordingly, thus stopping the process. But if the parent fails to satisfy the local authority of any of these matters then the authority will serve a school attendance order.
136. Section 442 of the EA 1996 makes provision for a school attendance order to be revoked in certain circumstances. The amendments made to section 442 by paragraph 8 of Schedule 1 reflect the fact that, in England, revocation of a school attendance order will need to take into account the new registration system. The effect of the amendments is that a local authority in England must revoke a school attendance order served by them in respect of a child if the child is registered on their home education register. They must also revoke the order if they are satisfied that the child is registered on another authority’s register (provided that the child is in that other authority’s area). So for instance if a home-educated child in respect of whom an order has been served by one authority moves to another authority’s area after service of the order, and the child’s parent applies for registration there, the parent will be able to have the order revoked by informing the original authority of the registration. The local authority must also revoke the order if the parent applies for revocation on the ground that arrangements have been made for the child to receive suitable education under section 19 of the EA 1996, unless they do not think that satisfactory arrangements for this have been made.
137. Section 443 of the EA 1996 makes it a criminal offence to fail to comply with a school attendance order. Paragraph 9 of Schedule 1 amends section 443 to reflect the new registration system. The result is that, where a school attendance order has been served by a local authority in England, a non-complying parent will not be guilty of an offence if the child is registered on the authority’s home education register. Nor will a non-complying parent be guilty of an offence if he or she can prove that the child is registered on another authority’s home education register, or is receiving suitable education provided under section 19 of the EA 1996.
Clause 27: Power of National Assembly for Wales to make provision by Measure
138. Clause 27 confers power on the National Assembly for Wales to make provision about the regulation of home education, and the inspection of services provided by local authorities for persons involved in providing home education. It achieves this by amending field 5 of Part 1 of Schedule 5 to the Government of Wales Act 2006 (legislative competence of National Assembly for Wales in the area of education and training).
Local Safeguarding Children Boards
Clauses 28 and 29
139. Clauses 28 and 29 make provision for the supply of information to Local Safeguarding Children Boards (LSCBs). Clause 28 makes provision in relation to LSCBs in England, and clause 29 in relation to LSCBs in Wales.
Clause 28: Supply of information requested by LSCBs in England
140. Clause 28 inserts a new section 14B into the Children Act 2004 (“CA 2004”). New section 14B provides that, if certain conditions are met, a person or body must supply information to a LSCB in England at its request. Firstly, the information must be requested for the purpose of enabling or assisting the LSCB to perform its functions. Secondly, the person or body requested to supply the information must have functions or engage in activites such that the LSCB considers it likely to have information relevant to a function of the LSCB. This would potentially encompass, for instance, a GP who provided medical advice or treatment to a child in respect of whom a LSCB was carrying out a serious case review, or to a family member or carer of that child. It would also potentially encompass a person carrying out voluntary work that brought him or her into contact with such a child or a family member or carer, or a minister of a church attended by such a child or a family member or carer. Finally, one of the conditions set out in subsection (4) or subsection (5) of the new section must be met. Subsection (4) of the new section relates to the content of the information that may be requested. Subsection (5) of the new section 14B effectively enables the onward transmission to a LSCB of information that it has requested, under the new section, to be supplied to a third party, for instance to a Primary Care Trust, for collation and onward transmission to the LSCB. (But a LSCB may request that information be supplied to a third party for collation and onward transmission only if the third party itself is within subsection (3)). Subsection (6) of the new section provides that a LSCB may use information provided under new section 14B only for the purposes of its functions. Subsection (7) of the new section provides that a LSCB must have regard to guidance issued by the Secretary of State in exercising its functions under the new section.
Clause 29: Supply of information requested by LSCBs in Wales
141. Clause 29 inserts a new section 32A into the CA 2004. This makes equivalent provision, in relation to LSCBs in Wales, to that made in relation to LSCBs in England by the new section 14B inserted by clause 28.
Clause 30: review by Chief Inspector of performance of LSCBs in England
142. Clause 30 inserts a new section 15A into the CA 2004. The new section confers power on the Secretary of State to make regulations providing for the Chief Inspector to review specified functions of a LSCB in England. Subsection (3) of the new section provides that the regulations may make provision about reports to be made on completion of a review, and requiring information to be shared with the Chief Inspector for the purposes of a review.
Youth justice
Clause 31: Supervision of youth offending teams etc
143. Clause 31 amends the Crime and Disorder Act 1998 (“CDA 1998”) to impose a duty on a youth offending team (“YOT”) to co-operate with the Youth Justice Board (“the Board”) and for a YOT to have regard to any recommendations of the Board. The clause also provides the Secretary of State with a power to direct a YOT or local authority in the carrying out of any function in relation to the youth justice system or the provision of youth justice services.
144. Subsection (2) amends section 41 of the CDA 1998 by inserting a new subsection 9A requiring a YOT to co-operate with the Board for the purpose of enabling the Board to assess the performance of the YOT in the exercise of its functions.
145. Subsection (3) introduces a new duty into s. 42 of the CDA 1998 to provide that local authorities and YOTs shall comply with any directions given to them by the Secretary of State in relation to the carrying out of their duties under sections 37 to 41 of the CDA 1998 (dealing with youth justice) and any other function in relation to the youth justice system or the provision of youth justice services. It also requires the YOT to have regard to any recommendations made to it by the Board. Subsection 3 also sets out that before the Secretary of State gives a direction to a Welsh YOT or Welsh local authority he will consult Welsh Ministers.
146. The subsection also amends section 42(3) of the CDA 1998 and replaces the existing power of the Secretary of State to give guidance to local authorities with a new power to give guidance which applies to a wider range of functions.
PART 2: FAMILY PROCEEDINGS ETC
Clause 32: Restriction on publication of information relating to family proceedings
147. Clause 32 provides for the proceedings which are to come within the new publication framework, and for the starting point that no information relating to such proceedings is to be published. There are three exceptions (authorised categories of information). These are authorised publications of relevant court orders or judgments or authorised news publications (both of which are covered in more detail in the clauses which follow); and information authorised by rules of court (which will govern disclosure for various purposes much as is presently done by Part XI of the Family Proceedings Rules 1991, amended in April 2009).
148. Subsection (1) outlines which proceedings are covered. Proceedings which the media, but not the general public, are entitled to attend will be included in the new framework.
149. Subsection (2) provides for the basic rule of no publication of information relating to proceedings within scope unless the publication comes within one of three authorised categories. It then sets out the three categories. Publication of information which is not within one of the authorised categories will be contempt of court (“publication” being defined in clause 41 to include all instances of written and spoken communication, whether between two individuals or for mass consumption by way of press, broadcast media or internet, consistent with existing caselaw).
150. Subsection (4) is a transitional provision which applies the new regime to proceedings which fall under the definition of family proceedings at the time of commencement but later cease to be family proceedings because of changes to the definitions in section 65 of the Magistrates’ Courts Act 1980 and section 32 of the Matrimonial and Family Proceedings Act 1984 (referred to in subsection (3)).
151. Subsections (3) to (8) flesh out the detail of what “relevant family proceedings” are. “Family proceedings” will mean the same as in existing legislation, but “relevant family proceedings”, to which the new reporting scheme will apply, will not include the types of proceedings listed in subsection (5), which are already subject to a different reporting regime (so the scheme under the 1926 Act is left in place for proceedings it already covers). The Lord Chancellor may by order amend the definition of “relevant family proceedings”, for example to bring new sorts of proceedings into the new reporting framework.
Clause 33: Authorised publication of court orders and judgments
152. Clause 33 establishes what is an authorised publication of a relevant court order or judgment. These differ in their default position, as explained below.
153. Subsection (1) covers court orders, for which the default position is publication. Any publication of the text or a summary of the whole or a part of the order is authorised, unless the court specifically directs otherwise. The exception to this is orders in adoption proceedings and parental order proceedings (defined in subsection (5)), for which the default position is non-publication. So those orders may not be published unless the court expressly permits it, and may be subject to any conditions which the court may choose to impose (subsection (4) allows for the imposition of conditions).
154. Subsection (2) covers court judgments, for which the default position is non-publication. This (as with the similar position for orders in adoption or parental order proceedings) reflects the greater likelihood that the judgment will contain information which, if it were published, would carry a risk of harm to the welfare of a child or other person involved in proceedings. Any publication of the text or a summary of the whole or part of the judgment will be authorised only to the extent specifically directed by the court. Thus a judgment released for publication on the BAILII website, for example, will be publishable freely, while a judgment handed down with no other indication will not be publishable.
155. Subsection (3) allows for the court’s powers to permit, prohibit or restrict publication of information to be exercisable not only on application but also on the court’s own initiative.
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