House of Lords - Explanatory Note
      
House of Lords
Session 2003 - 04
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Children Bill [HL]


 

These notes refer to the Children Bill [HL]
as introduced in the House of Lords on 3rd March 2004 [HL Bill 35]

CHILDREN BILL [HL]

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EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Children Bill [HL] which was introduced in the House of Lords on 3rd March 2004. They have been prepared by the Department for Education and Skills (DfES) in order to assist the reader in understanding the Bill. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. 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 Bill 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 Bill, the Government is publishing 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.     Part 1 of the Bill provides for the establishment of a new Children's Commissioner to ensure a voice for children and young people at national level, as set out in the Green Paper. It includes his general functions, power to carry out inquiries and responsibilities in working with other UK Commissioners. The role will be to seek and represent the views of children and young people on how far the five outcomes they identified as important (being healthy, staying safe, enjoying and achieving, making a positive contribution and economic well-being) are being achieved.

1.     6.     Part 2 of the Bill gives effect 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 Bill 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 Bill places a responsibility for key agencies to safeguard all children and promote their welfare. It also establishes statutory Local Safeguarding Children Boards to replace the existing non-statutory Area Child Protection Committees (clauses 6, 7, 9-12).

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

9.     Part 2 includes measures to ensure clear accountability for children's services. The Bill 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 an associated lead member for children's services (clauses 13 and 14).

10.     To ensure a shared approach across inspections, clauses 15 to 19 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, clause 41 extends existing intervention powers in relation to education functions of local authorities to children's social services.)

11.     Part 3 of the Bill 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 clauses 15-19.

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

13.     Part 5 of the Bill 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 (clauses 36-39);

  • to clarify and simplify the registration of child minders and providers of day care (clause 40);

  • to provide for the extension of existing intervention powers as mentioned above (clause 41);

  • to provide for an extension of inspection powers under section 38 of the Education Act 1997 (clause 42);

  • 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 (clauses 43 and 44);

  • to allow for the payment of fees to adoption review panel members (clause 46);

  • to allow grants to be paid across the range of children, young people and families services (clause 47);

  • to remove the power to make a care order at a lower threshold than would be usual under the Children Act as a sanction for not complying with a Child Safety Order (clause 48).

TERRITORIAL APPLICATION

14.     Part 1 of the Bill (which relates to the Children's Commissioner) extends to the whole of the United Kingdom. Parts 2 to 5 extend to England and Wales only.

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 clauses 37 and 38 provide separate powers for registration schemes in England and Wales respectively).

COMMENTARY ON CLAUSES

PART 1 - CHILDREN'S COMMISSIONER

Clause 1: Establishment of the Commissioner

16.     Subsection (1) establishes the office of Children's Commissioner.

17.     Subsection (2) gives effect to Schedule 1.

1.     Schedule 1: Children's Commissioner

18.      This Schedule makes provision concerning the status, general powers, appointment, and remuneration of the Children's Commissioner. It provides for the staffing of his office, and accounting procedures. It also adds the Children's 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.

19.     Paragraph 10 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 10 adds the Children's Commissioner and his deputy to the list of regulated positions in section 36.

Clause 2: General function of Commissioner

20.     The general function of the Children's Commissioner is set out in subsection (1). The Commissioner will be expected to raise the profile of the issues that affect and concern children, that is everyone under 18, and to promote awareness and understanding of their views and interests across society, and within both the public and private sectors. The Commissioner will be concerned with all matters affecting children in England, and non-devolved matters affecting children in Wales, Scotland and Northern Ireland. The Commissioner will be expected actively to gather and take into account the views of children and young people from all backgrounds. However, the Commissioner will also use his own judgement in determining the interests of children, and he may decide that they are not what children say they are.

21.     Subsection (2) provides more detail of what the Commissioner may do in the exercise of his function. The intention is that under subsection (2)(a) the Children's Commissioner will offer encouragement to any persons across all sectors whose policies and practices affect children. The Commissioner 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 from a child's perspective 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 judgement to prioritise requests.

23.     In considering 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 complaints procedures, 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 the matters he chooses to look into and research so far as they relate to the views and interests of children.

25.     In carrying out his general function the Commissioner should have particular regard to the aspects of children's well-being set out in subsection (3)(a) to (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.

26.     Subsection (4) places a duty on the Commissioner to involve children in all of his work so that their views can inform his work. In particular, he has to make sure that they know what he does and how to contact him. He also must consult children and the organisations which work with them on the work to be undertaken by him in relation to the operation of complaints procedures, and on the matters relating to the interests of children that he is to consider. The intention is that the views of children drive the work of the Commissioner.

27.     The intention behind subsection (5) 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.

28.     Subsection (6) prohibits the Commissioner from investigating the cases of individual children in the exercise of his function under clause 2. The intention is that this will allow him to concentrate on the broader issues that affect children.

29.     Under subsections (7) and (8) the Commissioner may 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.

Clause 3: Annual report of Commissioner

30.     Subsection (1) requires the Commissioner to report annually on what he has done, what he has found and what he intends to consider and research in the coming year. The Department expects the Commissioner to produce versions of his reports that are accessible and easy for children to understand, as appropriate.

31.     It is intended that the Commissioner report on progress towards achieving the five key outcomes for children in section 2(3)(a) to (e). The Commissioner will need to ensure that the views of children inform and are reflected in the annual report, and must explain in his report how he has consulted them throughout the year. The Commissioner may also want to use the report to make recommendations.

32.     The Commissioner will make his annual report to the Secretary of State who must lay the report, unchanged, before both Houses of Parliament. The Commissioner will be responsible for publishing, publicising and disseminating the report.

Clause 4: Inquiries held by Commissioner

33.     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 to or have implications for other children. It is envisaged that the Commissioner will play a role in determining whether a case is one which raises issues of wider relevance, for example through his ability to offer advice to the Secretary of State.

34.     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)).

35.     Subsection (4) requires that in most cases the Secretary of State publish the report but under subsection (5) he may publish an edited version of the report, or withhold publication altogether, to protect the identity of a child if the Secretary of State thinks it would be undesirable for the identity of the child to be made public.

36.     Subsections(7)-(9) give the Commissioner a range of powers to assist him in carrying out an inquiry under this clause. By virtue of the application of subsections (2) to (5) of section 250 of the Local Government Act 1972 the Commissioner will be able to summon 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. Subsections (8) and (9) make similar provision for inquiries held in Scotland and Northern Ireland.

Clause 5: Relationship with other Commissioners

37.     Under Subsection (1)(a)-(c) the Commissioner is prevented from carrying out his functions under clause 2 in relation to children in the Devolved Administrations on devolved matters. Nor, by subsection (3), can the Secretary of State direct the Commissioner to carry out an inquiry under clause 4 when the issues involved relate to devolved matters in Wales, Scotland and Northern Ireland. In the cases of Scotland and Northern Ireland these matters are defined by reference to the respective devolution settlements and in the case of the Welsh Commissioner, by reference to some of his functions.

38.     Subsection (2) requires the Commissioner, when discharging his function under clause 2, to take into account the views and work of the other UK Children's Commissioners when the matters he is looking into relate to children in their part of the UK. The intention is that the Commissioner is proactive in seeking the views of the other UK Children's Commissioners in such circumstances. The other UK Children's Commissioners will also be able to raise issues and offer their views to the Commissioner on these matters, which the Commissioner must then consider.

PART 2 - CHILDREN'S SERVICES IN ENGLAND

General

Clause 6: Co-operation to improve well-being

39.     The purpose of this clause is to create a statutory framework for local co-operation between local authorities, key partner agencies ('relevant partners') and other relevant bodies ('other bodies or persons'), including the voluntary and community sector, in order to improve the well-being of children in the area. The duty to make these arrangements is placed on the local authority (defined in clause 49) and a duty to co-operate with the local authority is placed on the relevant partners. As well as underpinning wide co-operation arrangements, these duties and powers will also provide the statutory context within which agencies will be encouraged to integrate commissioning and delivery of children's services, underpinned by pooled budgeting arrangements, in Children's Trusts.

40.     Subsection (1) imposes the duty on the local authority to make arrangements to promote co-operation between the authority, its relevant partners (listed in subsection (3)) and other bodies exercising functions or engaged in activities relating to children in the authority's area. The duty on each partner agency to co-operate is in subsection (4). Subsection 3(e) refers to the Connexions Service.

41.     Subsection (2) sets out the purposes of such arrangements. They are to be made with a view to improving the well-being of children in the authority's area. This subsection also specifies the aspects of well-being with which such arrangements are concerned. These reflect the five outcomes which children identified as being most important to them.

42.     Subsections (5) and (6) give a power for all the specified partners to pool budgets in support of these arrangements.

43.     Subsection (7) requires those subject to the duties to have regard to guidance from the Secretary of State. This guidance will be issued jointly by the relevant government departments to all of the relevant partners. It is likely that the guidance will set out the outcomes expected of these arrangements. These include: effective working together to understand the needs of local children, agreeing the contribution each agency should make to meet those needs, effective sharing of information at a strategic level and about individual children to support multi-agency working, and oversight of arrangements for agencies to work together in integrated planning, commissioning and delivery of services as appropriate. The guidance will, in particular, make clear that, for the local authority and Primary Care Trust and other participating services (e.g. Connexions, Youth Offending Teams) these arrangements should include consideration of integrated commissioning in the delivery of children's services. There will also be guidance as to the kinds of other bodies and persons referred to in subsection (3b) which the local authority may involve in these arrangements.

44.     Subsection (8) permits arrangements made under this clause to include those relating to persons aged 18 and 19 and persons over 19 receiving services as care leavers under the Children Act 1989 and persons under 25 with learning difficulties receiving services under the Learning and Skills Act 2000.

Clause 7: Arrangements to safeguard and promote welfare

45.     This clause imposes a duty on specified agencies to make arrangements to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children. The aim of this duty is to:

  • complement the general co-operation duty (clause 6) in the specific area of children's safeguards;

  • ensure that agencies give appropriate priority to their responsibilities towards the children in their care or with whom they come into contact;

  • encourage agencies to share early concerns about safety and welfare of children and to ensure preventative action before a crisis develops.

46.     This duty is intended to ensure that agencies are conscious of the need to safeguard children and promote their welfare in the course of executing their normal functions. Exercise of this duty will require agencies that come into contact with children to recognise that their needs are not always the same as adults i.e. that they are children, and vulnerable, as well as being patients, offenders, or people who use local amenities.

47.     Subsection (1) sets out the persons and bodies to which the duty applies.

48.     Subsection (2) sets out the duty and makes clear that it continues to apply where the relevant body contracts out services.

49.     Subsection (3) excludes the application of the duty where section 175 of the Education Act 2002 applies. That section places a similar duty on Local Education Authorities, schools and further education colleges. It requires those bodies to make arrangements for ensuring that their functions are exercised with a view to safeguarding and promoting the welfare of children and to have regard to guidance issued by the Secretary of State. That guidance may deal with such subjects as child protection, bullying, truancy, pupil health and sickness and school security.

50.     Subsection (4) requires those exercising the duty to have regard to guidance from the Secretary of State.

Clause 8: Information sharing

51.     This clause creates a power for the Secretary of State, by regulations made by affirmative resolution procedure, to require local authorities or another specified body to establish and maintain a database or databases of information about children (or other young people to whom arrangements under clause 6 or 7 may relate) and information that is relevant to their welfare (or to set up such databases himself). Such databases might be set up at a local, regional, or national level. The purpose of the information databases that would be set up under this clause is to facilitate contact between professionals who are supporting individual children and young people or who have concerns about their safety or well-being. It links in to the overarching duty on service providers to safeguard and promote the welfare of children (Clause 7) and to their duty to co-operate to promote the well-being of children (Clause 6). The purposes for which information databases may be used also includes the duty of local education authorities and governing bodies to fulfil their functions in a way that safeguards and promotes the welfare of children under section 175 of the Education Act 2002. The clause sets out the principles that would govern information sharing using the information databases. The detailed operational requirements will be set out in the affirmative procedure regulations referred to above and as to more technical matters in directions and guidance issued by the Secretary of State (subsections (4) and (9)).

52.     Subsection (3) gives the Secretary of State power to make provision for the establishment and operation of information sharing databases.

53.     Subsection (4) lists a number of matters concerning the management and operation of information databases that may in particular be included in the regulations. These include the type of information that may be held on an information database and the persons who are required or permitted to disclose information for inclusion on a database.

54.     Subsection (5) makes clear that, in particular, the regulations may authorise or require information to be held on an information database recording any specialist services that a child is receiving and a record of any cause for concern about a child.

55.     Subsection (6) allows the Secretary of State to delegate decisions relating to the matters referred to in subsection (4)(b) to (d) to persons who may be required to establish the databases.

56.     Subsection (7) makes clear that the regulations may authorise any practitioner that is under a common law duty of confidence to disclose information notwithstanding this duty. Such a power would be relied upon where practitioners believe, in their professional judgement, that it is in the best interest of the child to share information about that child.

57.     Subsection (8) provides that any direction issued by the Secretary of State must be complied with by any person or body who established or operates a database under this section and that they must have regard to any guidance issued by the Secretary of State.

58.     Subsection (9) lists matters concerning the management and operation of the information databases that may in particular be included in directions or guidance issued by the Secretary of State. These include conditions of access to the database, the technical specifications of a database, conditions relating to security and the transfer of information from one database to another.

 
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