Children Act 1989
An Act to reform the law relating to children; to provide for local authority services for children in need and others; to amend the law with respect to children’s homes, community homes, voluntary homes and voluntary organisations; to make provision with respect to fostering, child minding and day care for young children and adoption; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
Part I Introductory
1 Welfare of the child.
(1)
When a court determines any question with respect to—
(a)
the upbringing of a child; or
(b)
the administration of a child’s property or the application of any income arising from it,
the child’s welfare shall be the court’s paramount consideration.
(2)
In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
(3)
In the circumstances mentioned in subsection (4), a court shall have regard in particular to—
(a)
the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b)
his physical, emotional and educational needs;
(c)
the likely effect on him of any change in his circumstances;
(d)
his age, sex, background and any characteristics of his which the court considers relevant;
(e)
any harm which he has suffered or is at risk of suffering;
(f)
how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g)
the range of powers available to the court under this Act in the proceedings in question.
(4)
The circumstances are that—
(a)
the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or
(b)
the court is considering whether to make, vary or discharge F1a special guardianship order or an order under Part IV.
(5)
Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.
2 Parental responsibility for children.
(1)
Where a child’s father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child.
F2(1A)
Where a child—
(a)
has a parent by virtue of section 42 of the Human Fertilisation and Embryology Act 2008; or
(b)
has a parent by virtue of section 43 of that Act and is a person to whom section 1(3) of the Family Law Reform Act 1987 applies,
the child's mother and the other parent shall each have parental responsibility for the child.
(2)
Where a child’s father and mother were not married to each other at the time of his birth—
(a)
the mother shall have parental responsibility for the child;
(b)
the father F3shall have parental responsibility for the child if he has acquired it (and has not ceased to have it) in accordance with the provisions of this Act.
F4(2A)
Where a child has a parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008 and is not a person to whom section 1(3) of the Family Law Reform Act 1987 applies—
(a)
the mother shall have parental responsibility for the child;
(b)
the other parent shall have parental responsibility for the child if she has acquired it (and has not ceased to have it) in accordance with the provisions of this Act.
(3)
References in this Act to a child whose father and mother were, or (as the case may be) were not, married to each other at the time of his birth must be read with section 1 of the M1Family Law Reform Act 1987 (which extends their meaning).
(4)
The rule of law that a father is the natural guardian of his legitimate child is abolished.
(5)
More than one person may have parental responsibility for the same child at the same time.
(6)
A person who has parental responsibility for a child at any time shall not cease to have that responsibility solely because some other person subsequently acquires parental responsibility for the child.
(7)
Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child.
(8)
The fact that a person has parental responsibility for a child shall not entitle him to act in any way which would be incompatible with any order made with respect to the child under this Act.
(9)
A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met by one or more persons acting on his behalf.
(10)
The person with whom any such arrangement is made may himself be a person who already has parental responsibility for the child concerned.
(11)
The making of any such arrangement shall not affect any liability of the person making it which may arise from any failure to meet any part of his parental responsibility for the child concerned.
3 Meaning of “parental responsibility”.
(1)
In this Act “parental responsibility” means 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.
(2)
It also includes the rights, powers and duties which a guardian of the child’s estate (appointed, before the commencement of section 5, to act generally) would have had in relation to the child and his property.
(3)
The rights referred to in subsection (2) include, in particular, the right of the guardian to receive or recover in his own name, for the benefit of the child, property of whatever description and wherever situated which the child is entitled to receive or recover.
(4)
The fact that a person has, or does not have, parental responsibility for a child shall not affect—
(a)
any obligation which he may have in relation to the child (such as a statutory duty to maintain the child); or
(b)
any rights which, in the event of the child’s death, he (or any other person) may have in relation to the child’s property.
(5)
A person who—
(a)
does not have parental responsibility for a particular child; but
(b)
has care of the child,
may (subject to the provisions of this Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.
4 Acquisition of parental responsibility by father.
(1)
Where a child’s father and mother were not married to each other at the time of his birth F5, the father shall acquire parental responsibility for the child if—
(a)
he becomes registered as the child’s father under any of the enactments specified in subsection (1A);
(b)
he and the child’s mother make an agreement (a “parental responsibility agreement”) providing for him to have parental responsibility for the child; or
(c)
the court, on his application, orders that he shall have parental responsibility for the child.
F6(1A)
The enactments referred to in subsection (1)(a) are—
(a)
paragraphs (a), (b) and (c) of section 10(1) and of section 10A(1) of the Births and Deaths Registration Act 1953;
(b)
paragraphs (a), (b)(i) and (c) of section 18(1), and sections 18(2)(b) and 20(1)(a) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965; and
(c)
sub-paragraphs (a), (b) and (c) of Article 14(3) of the Births and Deaths Registration (Northern Ireland) Order 1976.
(1B)
The F7Secretary of State may by order amend subsection (1A) so as to add further enactments to the list in that subsection.
(2)
No parental responsibility agreement shall have effect for the purposes of this Act unless—
(a)
it is made in the form prescribed by regulations made by the Lord Chancellor; and
(b)
where regulations are made by the Lord Chancellor prescribing the manner in which such agreements must be recorded, it is recorded in the prescribed manner.
F8(2A)
A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.
(3)
The court may make an order under subsection (2A) on the application—
(a)
of any person who has parental responsibility for the child; or
(b)
with the leave of the court, of the child himself,
subject, in the case of parental responsibility acquired under subsection (1)(c), to section 12(4).
(4)
The court may only grant leave under subsection (3)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.
F94ZAAcquisition of parental responsibility by second female parent
(1)
Where a child has a parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008 and is not a person to whom section 1(3) of the Family Law Reform Act 1987 applies, that parent shall acquire parental responsibility for the child if—
(a)
she becomes registered as a parent of the child under any of the enactments specified in subsection (2);
(b)
she and the child's mother make an agreement providing for her to have parental responsibility for the child; or
(c)
the court, on her application, orders that she shall have parental responsibility for the child.
(2)
The enactments referred to in subsection (1)(a) are—
(a)
paragraphs (a), (b) and (c) of section 10(1B) and of section 10A(1B) of the Births and Deaths Registration Act 1953;
(b)
paragraphs (a), (b) and (d) of section 18B(1) and sections 18B(3)(a) and 20(1)(a) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965; and
(c)
sub-paragraphs (a), (b) and (c) of Article 14ZA(3) of the Births and Deaths Registration (Northern Ireland) Order 1976.
(3)
The Secretary of State may by order amend subsection (2) so as to add further enactments to the list in that subsection.
(4)
An agreement under subsection (1)(b) is also a “parental responsibility agreement”, and section 4(2) applies in relation to such an agreement as it applies in relation to parental responsibility agreements under section 4.
(5)
A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.
(6)
The court may make an order under subsection (5) on the application—
(a)
of any person who has parental responsibility for the child; or
(b)
with the leave of the court, of the child himself,
subject, in the case of parental responsibility acquired under subsection (1)(c), to section 12(4).
(7)
The court may only grant leave under subsection (6)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.
F104A Acquisition of parental responsibility by step-parent
(1)
Where a child’s parent (“parent A”) who has parental responsibility for the child is married to F11, or a civil partner of, a person who is not the child’s parent (“the step-parent”)—
(a)
parent A or, if the other parent of the child also has parental responsibility for the child, both parents may by agreement with the step-parent provide for the step-parent to have parental responsibility for the child; or
(b)
the court may, on the application of the step-parent, order that the step-parent shall have parental responsibility for the child.
(2)
An agreement under subsection (1)(a) is also a “parental responsibility agreement”, and section 4(2) applies in relation to such agreements as it applies in relation to parental responsibility agreements under section 4.
(3)
A parental responsibility agreement under subsection (1)(a), or an order under subsection (1)(b), may only be brought to an end by an order of the court made on the application—
(a)
of any person who has parental responsibility for the child; or
(b)
with the leave of the court, of the child himself.
(4)
The court may only grant leave under subsection (3)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.
5 Appointment of guardians.
(1)
Where an application with respect to a child is made to the court by any individual, the court may by order appoint that individual to be the child’s guardian if—
(a)
the child has no parent with parental responsibility for him; or
(b)
(c)
paragraph (b) does not apply, and the child’s only or last surviving special guardian dies.
(2)
The power conferred by subsection (1) may also be exercised in any family proceedings if the court considers that the order should be made even though no application has been made for it.
(3)
A parent who has parental responsibility for his child may appoint another individual to be the child’s guardian in the event of his death.
(4)
A guardian of a child may appoint another individual to take his place as the child’s guardian in the event of his death F14; and a special guardian of a child may appoint another individual to be the child’s guardian in the event of his death.
(5)
An appointment under subsection (3) or (4) shall not have effect unless it is made in writing, is dated and is signed by the person making the appointment or—
(a)
in the case of an appointment made by a will which is not signed by the testator, is signed at the direction of the testator in accordance with the requirements of section 9 of the M2Wills Act 1837; or
(b)
in any other case, is signed at the direction of the person making the appointment, in his presence and in the presence of two witnesses who each attest the signature.
(6)
A person appointed as a child’s guardian under this section shall have parental responsibility for the child concerned.
(7)
Where—
(a)
on the death of any person making an appointment under subsection (3) or (4), the child concerned has no parent with parental responsibility for him; or
(b)
immediately before the death of any person making such an appointment, a residence order in his favour was in force with respect to the child F15or he was the child’s only (or last surviving) special guardian,
the appointment shall take effect on the death of that person.
(8)
Where, on the death of any person making an appointment under subsection (3) or (4)—
(a)
the child concerned has a parent with parental responsibility for him; and
(b)
subsection (7)(b) does not apply,
the appointment shall take effect when the child no longer has a parent who has parental responsibility for him.
(9)
Subsections (1) and (7) do not apply if the residence order referred to in paragraph (b) of those subsections was also made in favour of a surviving parent of the child.
(10)
Nothing in this section shall be taken to prevent an appointment under subsection (3) or (4) being made by two or more persons acting jointly.
(11)
Subject to any provision made by rules of court, no court shall exercise the High Court’s inherent jurisdiction to appoint a guardian of the estate of any child.
(12)
Where rules of court are made under subsection (11) they may prescribe the circumstances in which, and conditions subject to which, an appointment of such a guardian may be made.
(13)
A guardian of a child may only be appointed in accordance with the provisions of this section.
6 Guardians: revocation and disclaimer.
(1)
An appointment under section 5(3) or (4) revokes an earlier such appointment (including one made in an unrevoked will or codicil) made by the same person in respect of the same child, unless it is clear (whether as the result of an express provision in the later appointment or by any necessary implication) that the purpose of the later appointment is to appoint an additional guardian.
(2)
An appointment under section 5(3) or (4) (including one made in an unrevoked will or codicil) is revoked if the person who made the appointment revokes it by a written and dated instrument which is signed—
(a)
by him; or
(b)
at his direction, in his presence and in the presence of two witnesses who each attest the signature.
(3)
An appointment under section 5(3) or (4) (other than one made in a will or codicil) is revoked if, with the intention of revoking the appointment, the person who made it—
(a)
destroys the instrument by which it was made; or
(b)
has some other person destroy that instrument in his presence.
F16(3A)
An appointment under section 5(3) or (4) (including one made in an unrevoked will or codicil) is revoked if the person appointed is the spouse of the person who made the appointment and either—
(a)
a decree of a court of civil jurisdiction in England and Wales dissolves or annuls the marriage, or
(b)
the marriage is dissolved or annulled and the divorce or annulment is entitled to recognition in England and Wales by virtue of Part II of the Family Law Act 1986,
unless a contrary intention appears by the appointment.
F17(3B)
An appointment under section 5(3) or (4)(including one made in an unrevoked will or codicil) is revoked if the person appointed is the civil partner of the person who made the appointment and either—
(a)
an order of a court of civil jurisdiction in England and Wales dissolves or annuls the civil partnership, or
(b)
the civil partnership is dissolved or annulled and the dissolution or annulment is entitled to recognition in England and Wales by virtue of Chapter 3 of Part 5 of the Civil Partnership Act 2004,
unless a contrary intention appears by the appointment.
(4)
For the avoidance of doubt, an appointment under section 5(3) or (4) made in a will or codicil is revoked if the will or codicil is revoked.
(5)
A person who is appointed as a guardian under section 5(3) or (4) may disclaim his appointment by an instrument in writing signed by him and made within a reasonable time of his first knowing that the appointment has taken effect.
(6)
Where regulations are made by the Lord Chancellor prescribing the manner in which such disclaimers must be recorded, no such disclaimer shall have effect unless it is recorded in the prescribed manner.
(7)
Any appointment of a guardian under section 5 may be brought to an end at any time by order of the court—
(a)
on the application of any person who has parental responsibility for the child;
(b)
on the application of the child concerned, with leave of the court; or
(c)
in any family proceedings, if the court considers that it should be brought to an end even though no application has been made.
7 Welfare reports.
(1)
A court considering any question with respect to a child under this Act may—
(b)
ask a local authority to arrange for—
(i)
an officer of the authority; or
to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report.
(2)
The Lord Chancellor may F20, after consulting the Lord Chief Justice, make regulations specifying matters which, unless the court orders otherwise, must be dealt with in any report under this section.
(3)
The report may be made in writing, or orally, as the court requires.
(4)
Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take account of—
(a)
any statement contained in the report; and
(b)
any evidence given in respect of the matters referred to in the report,
in so far as the statement or evidence is, in the opinion of the court, relevant to the question which it is considering.
(5)
F21(6)
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under subsection (2).
Part II Orders With Respect To Children In Family Proceedings
General
8 Residence, contact and other orders with respect to children.
(1)
In this Act —
“a contact order” means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other;
“a prohibited steps order” means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court;
“a residence order” means an order settling the arrangements to be made as to the person with whom a child is to live; and
“a specific issue order” means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.
(2)
In this Act “a section 8 order” means any of the orders mentioned in subsection (1) and any order varying or discharging such an order.
(3)
For the purposes of this Act “family proceedings” means any proceedings—
(a)
under the inherent jurisdiction of the High Court in relation to children; and
(b)
under the enactments mentioned in subsection (4),
but does not include proceedings on an application for leave under section 100(3).
(4)
The enactments are—
(a)
Parts I, II and IV of this Act;
(b)
the M3Matrimonial Causes Act 1973;
F22(ba)
Schedule 5 to the Civil Partnership Act 2004;
F23(c)
the M4Domestic Violence and Matrimonial Proceedings Act 1976;
(d)
the Adoption and Children Act 2002;
(e)
the M5Domestic Proceedings and Magistrates’ Courts Act 1978;
F24(ea)
Schedule 6 to the Civil Partnership Act 2004;
F23(f)
sections 1 and 9 of the M6Matrimonial Homes Act 1983;
(g)
Part III of the M7Matrimonial and Family Proceedings Act 1984.
F25(h)
the Family Law Act 1996
F26(i)
sections 11 and 12 of the Crime and Disorder Act 1998.
9 Restrictions on making section 8 orders.
(1)
No court shall make any section 8 order, other than a residence order, with respect to a child who is in the care of a local authority.
(2)
No application may be made by a local authority for a residence order or contact order and no court shall make such an order in favour of a local authority.
(3)
A person who is, or was at any time within the last six months, a local authority foster parent of a child may not apply for leave to apply for a section 8 order with respect to the child unless—
(a)
he has the consent of the authority;
(b)
he is a relative of the child; or
(c)
the child has lived with him for at least F27one year preceding the application.
(4)
F28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5)
No court shall exercise its powers to make a specific issue order or prohibited steps order—
(a)
with a view to achieving a result which could be achieved by making a residence or contact order; or
(b)
in any way which is denied to the High Court (by section 100(2)) in the exercise of its inherent jurisdiction with respect to children.
(6)
F29No court shall make a specific issue order, contact order or prohibited steps order which will end after the child has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional.
(7)
No court shall make any section 8 order, other than one varying or discharging such an order, with respect to a child who has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional.
10 Power of court to make section 8 orders.
(1)
In any family proceedings in which a question arises with respect to the welfare of any child, the court may make a section 8 order with respect to the child if—
(a)
an application for the order has been made by a person who—
(i)
is entitled to apply for a section 8 order with respect to the child; or
(ii)
has obtained the leave of the court to make the application; or
(b)
the court considers that the order should be made even though no such application has been made.
(2)
The court may also make a section 8 order with respect to any child on the application of a person who—
(a)
is entitled to apply for a section 8 order with respect to the child; or
(b)
has obtained the leave of the court to make the application.
(3)
This section is subject to the restrictions imposed by section 9.
(4)
The following persons are entitled to apply to the court for any section 8 order with respect to a child—
(a)
any parent F30, guardian or special guardian of the child;
F31(aa)
any person who by virtue of section 4A has parental responsibility for the child;
(b)
any person in whose favour a residence order is in force with respect to the child.
(5)
The following persons are entitled to apply for a residence or contact order with respect to a child—
(a)
any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family;
F32(aa)
any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child is a child of the family;
(b)
any person with whom the child has lived for a period of at least three years;
(c)
any person who—
(i)
in any case where a residence order is in force with respect to the child, has the consent of each of the persons in whose favour the order was made;
(ii)
in any case where the child is in the care of a local authority, has the consent of that authority; or
(iii)
in any other case, has the consent of each of those (if any) who have parental responsibility for the child.
F33(5A)
A local authority foster parent is entitled to apply for a residence order with respect to a child if the child has lived with him for a period of at least one year immediately preceding the application.
F34(5B)
A relative of a child is entitled to apply for a residence order with respect to the child if the child has lived with the relative for a period of at least one year immediately preceding the application.
(6)
A person who would not otherwise be entitled (under the previous provisions of this section) to apply for the variation or discharge of a section 8 order shall be entitled to do so if—
(a)
the order was made on his application; or
(b)
in the case of a contact order, he is named in the order.
(7)
Any person who falls within a category of person prescribed by rules of court is entitled to apply for any such section 8 order as may be prescribed in relation to that category of person.
F35(7A)
If a special guardianship order is in force with respect to a child, an application for a residence order may only be made with respect to him, if apart from this subsection the leave of the court is not required, with such leave.
(8)
Where the person applying for leave to make an application for a section 8 order is the child concerned, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the section 8 order.
(9)
Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to—
(a)
the nature of the proposed application for the section 8 order;
(b)
the applicant’s connection with the child;
(c)
any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and
(d)
where the child is being looked after by a local authority—
(i)
the authority’s plans for the child’s future; and
(ii)
the wishes and feelings of the child’s parents.
(10)
The period of three years mentioned in subsection (5)(b) need not be continuous but must not have begun more than five years before, or ended more than three months before, the making of the application.
11 General principles and supplementary provisions.
(1)
In proceedings in which any question of making a section 8 order, or any other question with respect to such an order, arises, the court shall (in the light of any rules made by virtue of subsection (2))—
(a)
draw up a timetable with a view to determining the question without delay; and
(b)
give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to.
(2)
Rules of court may—
(a)
specify periods within which specified steps must be taken in relation to proceedings in which such questions arise; and
(b)
make other provision with respect to such proceedings for the purpose of ensuring, so far as is reasonably practicable, that such questions are determined without delay.
(3)
Where a court has power to make a section 8 order, it may do so at any time during the course of the proceedings in question even though it is not in a position to dispose finally of those proceedings.
(4)
Where a residence order is made in favour of two or more persons who do not themselves all live together, the order may specify the periods during which the child is to live in the different households concerned.
(5)
Where—
(a)
a residence order has been made with respect to a child; and
(b)
as a result of the order the child lives, or is to live, with one of two parents who each have parental responsibility for him,
the residence order shall cease to have effect if the parents live together for a continuous period of more than six months.
(6)
A contact order which requires the parent with whom a child lives to allow the child to visit, or otherwise have contact with, his other parent shall cease to have effect if the parents live together for a continuous period of more than six months.
(7)
A section 8 order may—
(a)
contain directions about how it is to be carried into effect;
(b)
impose conditions which must be complied with by any person—
(i)
in whose favour the order is made;
(ii)
who is a parent of the child concerned;
(iii)
who is not a parent of his but who has parental responsibility for him; or
(iv)
with whom the child is living,
and to whom the conditions are expressed to apply;
(c)
be made to have effect for a specified period, or contain provisions which are to have effect for a specified period;
(d)
make such incidental, supplemental or consequential provision as the court thinks fit.
F3611AContact activity directions
(1)
This section applies in proceedings in which the court is considering whether to make provision about contact with a child by making—
(a)
a contact order with respect to the child, or
(b)
an order varying or discharging a contact order with respect to the child.
(2)
The court may make a contact activity direction in connection with that provision about contact.
(3)
A contact activity direction is a direction requiring an individual who is a party to the proceedings to take part in an activity that promotes contact with the child concerned.
(4)
The direction is to specify the activity and the person providing the activity.
(5)
The activities that may be so required include, in particular—
(a)
programmes, classes and counselling or guidance sessions of a kind that—
(i)
may assist a person as regards establishing, maintaining or improving contact with a child;
(ii)
may, by addressing a person's violent behaviour, enable or facilitate contact with a child;
(b)
sessions in which information or advice is given as regards making or operating arrangements for contact with a child, including making arrangements by means of mediation.
(6)
No individual may be required by a contact activity direction—
(a)
to undergo medical or psychiatric examination, assessment or treatment;
(b)
to take part in mediation.
(7)
A court may not on the same occasion—
(a)
make a contact activity direction, and
(b)
dispose finally of the proceedings as they relate to contact with the child concerned.
(8)
Subsection (2) has effect subject to the restrictions in sections 11B and 11E.
(9)
In considering whether to make a contact activity direction, the welfare of the child concerned is to be the court's paramount consideration.
F3711BContact activity directions: further provision
(1)
A court may not make a contact activity direction in any proceedings unless there is a dispute as regards the provision about contact that the court is considering whether to make in the proceedings.
(2)
A court may not make a contact activity direction requiring an individual who is a child to take part in an activity unless the individual is a parent of the child in relation to whom the court is considering provision about contact.
(3)
A court may not make a contact activity direction in connection with the making, variation or discharge of a contact order, if the contact order is, or would if made be, an excepted order.
(4)
A contact order with respect to a child is an excepted order if—
(a)
it is made in proceedings that include proceedings on an application for a relevant adoption order in respect of the child; or
(b)
it makes provision as regards contact between the child and a person who would be a parent or relative of the child but for the child's adoption by an order falling within subsection (5).
(5)
An order falls within this subsection if it is—
(a)
a relevant adoption order;
(b)
an adoption order, within the meaning of section 72(1) of the Adoption Act 1976, other than an order made by virtue of section 14 of that Act on the application of a married couple one of whom is the mother or the father of the child;
(c)
a Scottish adoption order, within the meaning of the Adoption and Children Act 2002, other than an order made—
(i)
by virtue of section 14 of the Adoption (Scotland) Act 1978 on the application of a married couple one of whom is the mother or the father of the child, or
(ii)
by virtue of section 15(1)(aa) of that Act; or
F38(iii)
by virtue of an application under section 30 of the Adoption and Children (Scotland) Act 2007 where subsection (3) of that section applies; or
(d)
a Northern Irish adoption order, within the meaning of the Adoption and Children Act 2002, other than an order made by virtue of Article 14 of the Adoption (Northern Ireland) Order 1987 on the application of a married couple one of whom is the mother or the father of the child.
(6)
A relevant adoption order is an adoption order, within the meaning of section 46(1) of the Adoption and Children Act 2002, other than an order made—
(a)
on an application under section 50 of that Act by a couple (within the meaning of that Act) one of whom is the mother or the father of the person to be adopted, or
(b)
on an application under section 51(2) of that Act.
(7)
A court may not make a contact activity direction in relation to an individual unless the individual is habitually resident in England and Wales; and a direction ceases to have effect if the individual subject to the direction ceases to be habitually resident in England and Wales.
F3911CContact activity conditions
(1)
This section applies if in any family proceedings the court makes—
(a)
a contact order with respect to a child, or
(b)
an order varying a contact order with respect to a child.
(2)
The contact order may impose, or the contact order may be varied so as to impose, a condition (a “contact activity condition”) requiring an individual falling within subsection (3) to take part in an activity that promotes contact with the child concerned.
(3)
An individual falls within this subsection if he is—
(a)
for the purposes of the contact order so made or varied, the person with whom the child concerned lives or is to live;
(b)
the person whose contact with the child concerned is provided for in that order; or
(c)
a person upon whom that order imposes a condition under section 11(7)(b).
(4)
The condition is to specify the activity and the person providing the activity.
(5)
Subsections (5) and (6) of section 11A have effect as regards the activities that may be required by a contact activity condition as they have effect as regards the activities that may be required by a contact activity direction.
(6)
Subsection (2) has effect subject to the restrictions in sections 11D and 11E.
F4011DContact activity conditions: further provision
(1)
A contact order may not impose a contact activity condition on an individual who is a child unless the individual is a parent of the child concerned.
(2)
If a contact order is an excepted order (within the meaning given by section 11B(4)), it may not impose (and it may not be varied so as to impose) a contact activity condition.
(3)
A contact order may not impose a contact activity condition on an individual unless the individual is habitually resident in England and Wales; and a condition ceases to have effect if the individual subject to the condition ceases to be habitually resident in England and Wales.
F4111EContact activity directions and conditions: making
(1)
Before making a contact activity direction (or imposing a contact activity condition by means of a contact order), the court must satisfy itself as to the matters falling within subsections (2) to (4).
(2)
The first matter is that the activity proposed to be specified is appropriate in the circumstances of the case.
(3)
The second matter is that the person proposed to be specified as the provider of the activity is suitable to provide the activity.
(4)
The third matter is that the activity proposed to be specified is provided in a place to which the individual who would be subject to the direction (or the condition) can reasonably be expected to travel.
(5)
Before making such a direction (or such an order), the court must obtain and consider information about the individual who would be subject to the direction (or the condition) and the likely effect of the direction (or the condition) on him.
(6)
Information about the likely effect of the direction (or the condition) may, in particular, include information as to—
(a)
any conflict with the individual's religious beliefs;
(b)
any interference with the times (if any) at which he normally works or attends an educational establishment.
(7)
The court may ask an officer of the Service or a Welsh family proceedings officer to provide the court with information as to the matters in subsections (2) to (5); and it shall be the duty of the officer of the Service or Welsh family proceedings officer to comply with any such request.
(8)
In this section “specified” means specified in a contact activity direction (or in a contact activity condition).
F4211FContact activity directions and conditions: financial assistance
(1)
The Secretary of State may by regulations make provision authorising him to make payments to assist individuals falling within subsection (2) in paying relevant charges or fees.
(2)
An individual falls within this subsection if he is required by a contact activity direction or condition to take part in an activity that promotes contact with a child, not being a child ordinarily resident in Wales.
(3)
The National Assembly for Wales may by regulations make provision authorising it to make payments to assist individuals falling within subsection (4) in paying relevant charges or fees.
(4)
An individual falls within this subsection if he is required by a contact activity direction or condition to take part in an activity that promotes contact with a child who is ordinarily resident in Wales.
(5)
A relevant charge or fee, in relation to an activity required by a contact activity direction or condition, is a charge or fee in respect of the activity payable to the person providing the activity.
(6)
Regulations under this section may provide that no assistance is available to an individual unless—
(a)
the individual satisfies such conditions as regards his financial resources as may be set out in the regulations;
(b)
the activity in which the individual is required by a contact activity direction or condition to take part is provided to him in England or Wales;
(c)
where the activity in which the individual is required to take part is provided to him in England, it is provided by a person who is for the time being approved by the Secretary of State as a provider of activities required by a contact activity direction or condition;
(d)
where the activity in which the individual is required to take part is provided to him in Wales, it is provided by a person who is for the time being approved by the National Assembly for Wales as a provider of activities required by a contact activity direction or condition.
(7)
Regulations under this section may make provision—
(a)
as to the maximum amount of assistance that may be paid to or in respect of an individual as regards an activity in which he is required by a contact activity direction or condition to take part;
(b)
where the amount may vary according to an individual's financial resources, as to the method by which the amount is to be determined;
(c)
authorising payments by way of assistance to be made directly to persons providing activities required by a contact activity direction or condition.
F4311GContact activity directions and conditions: monitoring
(1)
This section applies if in any family proceedings the court—
(a)
makes a contact activity direction in relation to an individual, or
(b)
makes a contact order that imposes, or varies a contact order so as to impose, a contact activity condition on an individual.
(2)
The court may on making the direction (or imposing the condition by means of a contact order) ask an officer of the Service or a Welsh family proceedings officer—
(a)
to monitor, or arrange for the monitoring of, the individual's compliance with the direction (or the condition);
(b)
to report to the court on any failure by the individual to comply with the direction (or the condition).
(3)
It shall be the duty of the officer of the Service or Welsh family proceedings officer to comply with any request under subsection (2).
F4411HMonitoring contact
(1)
This section applies if in any family proceedings the court makes—
(a)
a contact order with respect to a child in favour of a person, or
(b)
an order varying such a contact order.
(2)
The court may ask an officer of the Service or a Welsh family proceedings officer—
(a)
to monitor whether an individual falling within subsection (3) complies with the contact order (or the contact order as varied);
(b)
to report to the court on such matters relating to the individual's compliance as the court may specify in the request.
(3)
An individual falls within this subsection if the contact order so made (or the contact order as so varied)—
(a)
requires the individual to allow contact with the child concerned;
(b)
names the individual as having contact with the child concerned; or
(c)
imposes a condition under section 11(7)(b) on the individual.
(4)
If the contact order (or the contact order as varied) includes a contact activity condition, a request under subsection (2) is to be treated as relating to the provisions of the order other than the contact activity condition.
(5)
The court may make a request under subsection (2)—
(a)
on making the contact order (or the order varying the contact order), or
(b)
at any time during the subsequent course of the proceedings as they relate to contact with the child concerned.
(6)
In making a request under subsection (2), the court is to specify the period for which the officer of the Service or Welsh family proceedings officer is to monitor compliance with the order; and the period specified may not exceed twelve months.
(7)
It shall be the duty of the officer of the Service or Welsh family proceedings officer to comply with any request under subsection (2).
(8)
The court may order any individual falling within subsection (3) to take such steps as may be specified in the order with a view to enabling the officer of the Service or Welsh family proceedings officer to comply with the court's request under subsection (2).
(9)
But the court may not make an order under subsection (8) with respect to an individual who is a child unless he is a parent of the child with respect to whom the order falling within subsection (1) was made.
(10)
A court may not make a request under subsection (2) in relation to a contact order that is an excepted order (within the meaning given by section 11B(4)).
F4511IContact orders: warning notices
Where the court makes (or varies) a contact order, it is to attach to the contact order (or the order varying the contact order) a notice warning of the consequences of failing to comply with the contact order.
F4611JEnforcement orders
(1)
This section applies if a contact order with respect to a child has been made.
(2)
If the court is satisfied beyond reasonable doubt that a person has failed to comply with the contact order, it may make an order (an “enforcement order”) imposing on the person an unpaid work requirement.
(3)
But the court may not make an enforcement order if it is satisfied that the person had a reasonable excuse for failing to comply with the contact order.
(4)
The burden of proof as to the matter mentioned in subsection (3) lies on the person claiming to have had a reasonable excuse, and the standard of proof is the balance of probabilities.
(5)
The court may make an enforcement order in relation to the contact order only on the application of—
(a)
the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live;
(b)
the person whose contact with the child concerned is provided for in the contact order;
(c)
any individual subject to a condition under section 11(7)(b) or a contact activity condition imposed by the contact order; or
(d)
the child concerned.
(6)
Where the person proposing to apply for an enforcement order in relation to a contact order is the child concerned, the child must obtain the leave of the court before making such an application.
(7)
The court may grant leave to the child concerned only if it is satisfied that he has sufficient understanding to make the proposed application.
(8)
Subsection (2) has effect subject to the restrictions in sections 11K and 11L.
(9)
The court may suspend an enforcement order for such period as it thinks fit.
(10)
Nothing in this section prevents a court from making more than one enforcement order in relation to the same person on the same occasion.
(11)
Proceedings in which any question of making an enforcement order, or any other question with respect to such an order, arises are to be regarded for the purposes of section 11(1) and (2) as proceedings in which a question arises with respect to a section 8 order.
(12)
In Schedule A1—
(a)
Part 1 makes provision as regards an unpaid work requirement;
(b)
Part 2 makes provision in relation to the revocation and amendment of enforcement orders and failure to comply with such orders.
(13)
This section is without prejudice to section 63(3) of the Magistrates' Courts Act 1980 as it applies in relation to contact orders.
F4711KEnforcement orders: further provision
(1)
A court may not make an enforcement order against a person in respect of a failure to comply with a contact order unless it is satisfied that before the failure occurred the person had been given (in accordance with rules of court) a copy of, or otherwise informed of the terms of—
(a)
in the case of a failure to comply with a contact order that was varied before the failure occurred, a notice under section 11I relating to the order varying the contact order or, where more than one such order has been made, the last order preceding the failure in question;
(b)
in any other case, a notice under section 11I relating to the contact order.
(2)
A court may not make an enforcement order against a person in respect of any failure to comply with a contact order occurring before the person attained the age of 18.
(3)
A court may not make an enforcement order against a person in respect of a failure to comply with a contact order that is an excepted order (within the meaning given by section 11B(4)).
(4)
A court may not make an enforcement order against a person unless the person is habitually resident in England and Wales; and an enforcement order ceases to have effect if the person subject to the order ceases to be habitually resident in England and Wales.
F4811LEnforcement orders: making
(1)
Before making an enforcement order as regards a person in breach of a contact order, the court must be satisfied that—
(a)
making the enforcement order proposed is necessary to secure the person's compliance with the contact order or any contact order that has effect in its place;
(b)
the likely effect on the person of the enforcement order proposed to be made is proportionate to the seriousness of the breach of the contact order.
(2)
Before making an enforcement order, the court must satisfy itself that provision for the person to work under an unpaid work requirement imposed by an enforcement order can be made in the local justice area in which the person in breach resides or will reside.
(3)
Before making an enforcement order as regards a person in breach of a contact order, the court must obtain and consider information about the person and the likely effect of the enforcement order on him.
(4)
Information about the likely effect of the enforcement order may, in particular, include information as to—
(a)
any conflict with the person's religious beliefs;
(b)
any interference with the times (if any) at which he normally works or attends an educational establishment.
(5)
A court that proposes to make an enforcement order may ask an officer of the Service or a Welsh family proceedings officer to provide the court with information as to the matters in subsections (2) and (3).
(6)
It shall be the duty of the officer of the Service or Welsh family proceedings officer to comply with any request under this section.
(7)
In making an enforcement order in relation to a contact order, a court must take into account the welfare of the child who is the subject of the contact order.
F4911MEnforcement orders: monitoring
(1)
On making an enforcement order in relation to a person, the court is to ask an officer of the Service or a Welsh family proceedings officer—
(a)
to monitor, or arrange for the monitoring of, the person's compliance with the unpaid work requirement imposed by the order;
(b)
to report to the court if a report under paragraph 8 of Schedule A1 is made in relation to the person;
(c)
to report to the court on such other matters relating to the person's compliance as may be specified in the request;
(d)
to report to the court if the person is, or becomes, unsuitable to perform work under the requirement.
(2)
It shall be the duty of the officer of the Service or Welsh family proceedings officer to comply with any request under this section.
F5011NEnforcement orders: warning notices
Where the court makes an enforcement order, it is to attach to the order a notice warning of the consequences of failing to comply with the order.
F5111OCompensation for financial loss
(1)
This section applies if a contact order with respect to a child has been made.
(2)
If the court is satisfied that—
(a)
an individual has failed to comply with the contact order, and
(b)
a person falling within subsection (6) has suffered financial loss by reason of the breach,
it may make an order requiring the individual in breach to pay the person compensation in respect of his financial loss.
(3)
But the court may not make an order under subsection (2) if it is satisfied that the individual in breach had a reasonable excuse for failing to comply with the contact order.
(4)
The burden of proof as to the matter mentioned in subsection (3) lies on the individual claiming to have had a reasonable excuse.
(5)
An order under subsection (2) may be made only on an application by the person who claims to have suffered financial loss.
(6)
A person falls within this subsection if he is—
(a)
the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live;
(b)
the person whose contact with the child concerned is provided for in the contact order;
(c)
an individual subject to a condition under section 11(7)(b) or a contact activity condition imposed by the contact order; or
(d)
the child concerned.
(7)
Where the person proposing to apply for an order under subsection (2) is the child concerned, the child must obtain the leave of the court before making such an application.
(8)
The court may grant leave to the child concerned only if it is satisfied that he has sufficient understanding to make the proposed application.
(9)
The amount of compensation is to be determined by the court, but may not exceed the amount of the applicant's financial loss.
(10)
In determining the amount of compensation payable by the individual in breach, the court must take into account the individual's financial circumstances.
(11)
An amount ordered to be paid as compensation may be recovered by the applicant as a civil debt due to him.
(12)
Subsection (2) has effect subject to the restrictions in section 11P.
(13)
Proceedings in which any question of making an order under subsection (2) arises are to be regarded for the purposes of section 11(1) and (2) as proceedings in which a question arises with respect to a section 8 order.
(14)
In exercising its powers under this section, a court is to take into account the welfare of the child concerned.
F5211POrders under section 11O(2): further provision
(1)
A court may not make an order under section 11O(2) requiring an individual to pay compensation in respect of a failure by him to comply with a contact order unless it is satisfied that before the failure occurred the individual had been given (in accordance with rules of court) a copy of, or otherwise informed of the terms of—
(a)
in the case of a failure to comply with a contact order that was varied before the failure occurred, a notice under section 11I relating to the order varying the contact order or, where more than one such order has been made, the last order preceding the failure in question;
(b)
in any other case, a notice under section 11I relating to the contact order.
(2)
A court may not make an order under section 11O(2) requiring an individual to pay compensation in respect of a failure by him to comply with a contact order where the failure occurred before the individual attained the age of 18.
(3)
A court may not make an order under section 11O(2) requiring an individual to pay compensation in respect of a failure by him to comply with a contact order that is an excepted order (within the meaning given by section 11B(4)).
12 Residence orders and parental responsibility.
(1)
Where the court makes a residence order in favour of the father of a child it shall, if the father would not otherwise have parental responsibility for the child, also make an order under section 4 giving him that responsibility.
F53(1A)
Where the court makes a residence order in favour of a woman who is a parent of a child by virtue of section 43 of the Human Fertilisation and Embryology Act 2008 it shall, if that woman would not otherwise have parental responsibility for the child, also make an order under section 4ZA giving her that responsibility.
(2)
Where the court makes a residence order in favour of any person who is not the parent or guardian of the child concerned that person shall have parental responsibility for the child while the residence order remains in force.
(3)
Where a person has parental responsibility for a child as a result of subsection (2), he shall not have the right—
(a)
F54. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)
to agree, or refuse to agree, to the making of an adoption order, or an order under F55section 84 of the Adoption and Children Act 2002, with respect to the child; or
(c)
to appoint a guardian for the child.
(4)
(5)
F59. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6)
F60. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13 Change of child’s name or removal from jurisdiction.
(1)
Where a residence order is in force with respect to a child, no person may—
(a)
cause the child to be known by a new surname; or
(b)
remove him from the United Kingdom;
without either the written consent of every person who has parental responsibility for the child or the leave of the court.
(2)
Subsection (1)(b) does not prevent the removal of a child, for a period of less than one month, by the person in whose favour the residence order is made.
(3)
In making a residence order with respect to a child the court may grant the leave required by subsection (1)(b), either generally or for specified purposes.
14 Enforcement of residence orders.
(1)
Where—
(a)
a residence order is in force with respect to a child in favour of any person; and
(b)
any other person (including one in whose favour the order is also in force) is in breach of the arrangements settled by that order,
the person mentioned in paragraph (a) may, as soon as the requirement in subsection (2) is complied with, enforce the order under section 63(3) of the M8Magistrates’ Courts Act 1980 as if it were an order requiring the other person to produce the child to him.
(2)
The requirement is that a copy of the residence order has been served on the other person.
(3)
Subsection (1) is without prejudice to any other remedy open to the person in whose favour the residence order is in force.
F61Special guardianship
F6214A Special guardianship orders
(1)
A “special guardianship order” is an order appointing one or more individuals to be a child’s “special guardian” (or special guardians).
(2)
A special guardian—
(a)
must be aged eighteen or over; and
(b)
must not be a parent of the child in question,
and subsections (3) to (6) are to be read in that light.
(3)
The court may make a special guardianship order with respect to any child on the application of an individual who—
(a)
is entitled to make such an application with respect to the child; or
(b)
has obtained the leave of the court to make the application,
or on the joint application of more than one such individual.
(4)
Section 9(3) applies in relation to an application for leave to apply for a special guardianship order as it applies in relation to an application for leave to apply for a section 8 order.
(5)
The individuals who are entitled to apply for a special guardianship order with respect to a child are—
(a)
any guardian of the child;
(b)
any individual in whose favour a residence order is in force with respect to the child;
(c)
any individual listed in subsection (5)(b) or (c) of section 10 (as read with subsection (10) of that section);
(d)
a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application.F63;
(e)
a relative with whom the child has lived for a period of at least one year immediately preceding the application.
(6)
The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if—
(a)
an application for the order has been made by an individual who falls within subsection (3)(a) or (b) (or more than one such individual jointly); or
(b)
the court considers that a special guardianship order should be made even though no such application has been made.
(7)
No individual may make an application under subsection (3) or (6)(a) unless, before the beginning of the period of three months ending with the date of the application, he has given written notice of his intention to make the application—
(a)
if the child in question is being looked after by a local authority, to that local authority, or
(b)
otherwise, to the local authority in whose area the individual is ordinarily resident.
(8)
On receipt of such a notice, the local authority must investigate the matter and prepare a report for the court dealing with—
(a)
the suitability of the applicant to be a special guardian;
(b)
such matters (if any) as may be prescribed by the Secretary of State; and
(c)
any other matter which the local authority consider to be relevant.
(9)
The court may itself ask a local authority to conduct such an investigation and prepare such a report, and the local authority must do so.
(10)
The local authority may make such arrangements as they see fit for any person to act on their behalf in connection with conducting an investigation or preparing a report referred to in subsection (8) or (9).
(11)
The court may not make a special guardianship order unless it has received a report dealing with the matters referred to in subsection (8).
(12)
Subsections (8) and (9) of section 10 apply in relation to special guardianship orders as they apply in relation to section 8 orders.
(13)
This section is subject to section 29(5) and (6) of the Adoption and Children Act 2002.
F6414B Special guardianship orders: making
(1)
Before making a special guardianship order, the court must consider whether, if the order were made—
(a)
a contact order should also be made with respect to the child, F65. . .
(b)
any section 8 order in force with respect to the child should be varied or discharged.
F66(c)
where a contact order made with respect to the child is not discharged, any enforcement order relating to that contact order should be revoked, and
(d)
where a contact activity direction has been made as regards contact with the child and is in force, that contact activity direction should be discharged.
(2)
On making a special guardianship order, the court may also—
(a)
give leave for the child to be known by a new surname;
(b)
grant the leave required by section 14C(3)(b), either generally or for specified purposes.
F6714C Special guardianship orders: effect
(1)
The effect of a special guardianship order is that while the order remains in force—
(a)
a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and
(b)
subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).
(2)
Subsection (1) does not affect—
(a)
the operation of any enactment or rule of law which requires the consent of more than one person with parental responsibility in a matter affecting the child; or
(b)
any rights which a parent of the child has in relation to the child’s adoption or placement for adoption.
(3)
While a special guardianship order is in force with respect to a child, no person may—
(a)
cause the child to be known by a new surname; or
(b)
remove him from the United Kingdom,
without either the written consent of every person who has parental responsibility for the child or the leave of the court.
(4)
Subsection (3)(b) does not prevent the removal of a child, for a period of less than three months, by a special guardian of his.
(5)
If the child with respect to whom a special guardianship order is in force dies, his special guardian must take reasonable steps to give notice of that fact to—
(a)
each parent of the child with parental responsibility; and
(b)
each guardian of the child,
but if the child has more than one special guardian, and one of them has taken such steps in relation to a particular parent or guardian, any other special guardian need not do so as respects that parent or guardian.
(6)
This section is subject to section 29(7) of the Adoption and Children Act 2002.
F6814D Special guardianship orders: variation and discharge
(1)
The court may vary or discharge a special guardianship order on the application of—
(a)
the special guardian (or any of them, if there are more than one);
(b)
any parent or guardian of the child concerned;
(c)
any individual in whose favour a residence order is in force with respect to the child;
(d)
any individual not falling within any of paragraphs (a) to (c) who has, or immediately before the making of the special guardianship order had, parental responsibility for the child;
(e)
the child himself; or
(f)
a local authority designated in a care order with respect to the child.
(2)
In any family proceedings in which a question arises with respect to the welfare of a child with respect to whom a special guardianship order is in force, the court may also vary or discharge the special guardianship order if it considers that the order should be varied or discharged, even though no application has been made under subsection (1).
(3)
The following must obtain the leave of the court before making an application under subsection (1)—
(a)
the child;
(b)
any parent or guardian of his;
(c)
any step-parent of his who has acquired, and has not lost, parental responsibility for him by virtue of section 4A;
(d)
any individual falling within subsection (1)(d) who immediately before the making of the special guardianship order had, but no longer has, parental responsibility for him.
(4)
Where the person applying for leave to make an application under subsection (1) is the child, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application under subsection (1).
(5)
The court may not grant leave to a person falling within subsection (3)(b)(c) or (d) unless it is satisfied that there has been a significant change in circumstances since the making of the special guardianship order.
F6914E Special guardianship orders: supplementary
(1)
In proceedings in which any question of making, varying or discharging a special guardianship order arises, the court shall (in the light of any rules made by virtue of subsection (3))—
(a)
draw up a timetable with a view to determining the question without delay; and
(b)
give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that the timetable is adhered to.
(2)
Subsection (1) applies also in relation to proceedings in which any other question with respect to a special guardianship order arises.
(3)
The power to make rules in subsection (2) of section 11 applies for the purposes of this section as it applies for the purposes of that.
(4)
A special guardianship order, or an order varying one, may contain provisions which are to have effect for a specified period.
(5)
Section 11(7) (apart from paragraph (c)) applies in relation to special guardianship orders and orders varying them as it applies in relation to section 8 orders.
F7014F Special guardianship support services
(1)
Each local authority must make arrangements for the provision within their area of special guardianship support services, which means—
(a)
counselling, advice and information; and
(b)
such other services as are prescribed,
in relation to special guardianship.
(2)
The power to make regulations under subsection (1)(b) is to be exercised so as to secure that local authorities provide financial support.
(3)
At the request of any of the following persons—
(a)
a child with respect to whom a special guardianship order is in force;
(b)
a special guardian;
(c)
a parent;
(d)
any other person who falls within a prescribed description,
a local authority may carry out an assessment of that person’s needs for special guardianship support services (but, if the Secretary of State so provides in regulations, they must do so if he is a person of a prescribed description, or if his case falls within a prescribed description, or if both he and his case fall within prescribed descriptions).
(4)
A local authority may, at the request of any other person, carry out an assessment of that person’s needs for special guardianship support services.
(5)
Where, as a result of an assessment, a local authority decide that a person has needs for special guardianship support services, they must then decide whether to provide any such services to that person.
(6)
If—
(a)
a local authority decide to provide any special guardianship support services to a person, and
(b)
the circumstances fall within a prescribed description,
the local authority must prepare a plan in accordance with which special guardianship support services are to be provided to him, and keep the plan under review.
(7)
The Secretary of State may by regulations make provision about assessments, preparing and reviewing plans, the provision of special guardianship support services in accordance with plans and reviewing the provision of special guardianship support services.
(8)
The regulations may in particular make provision—
(a)
about the type of assessment which is to be carried out, or the way in which an assessment is to be carried out;
(b)
about the way in which a plan is to be prepared;
(c)
about the way in which, and the time at which, a plan or the provision of special guardianship support services is to be reviewed;
(d)
about the considerations to which a local authority are to have regard in carrying out an assessment or review or preparing a plan;
(e)
as to the circumstances in which a local authority may provide special guardianship support services subject to conditions (including conditions as to payment for the support or the repayment of financial support);
(f)
as to the consequences of conditions imposed by virtue of paragraph (e) not being met (including the recovery of any financial support provided);
(g)
as to the circumstances in which this section may apply to a local authority in respect of persons who are outside that local authority’s area;
(h)
as to the circumstances in which a local authority may recover from another local authority the expenses of providing special guardianship support services to any person.
(9)
A local authority may provide special guardianship support services (or any part of them) by securing their provision by—
(a)
another local authority; or
(b)
a person within a description prescribed in regulations of persons who may provide special guardianship support services,
and may also arrange with any such authority or person for that other authority or that person to carry out the local authority’s functions in relation to assessments under this section.
(10)
A local authority may carry out an assessment of the needs of any person for the purposes of this section at the same time as an assessment of his needs is made under any other provision of this Act or under any other enactment.
(11)
Section 27 (co-operation between authorities) applies in relation to the exercise of functions of a local authority under this section as it applies in relation to the exercise of functions of a local authority under Part 3.
F7114G Special guardianship support services: representations
F72(1)
Every local authority shall establish a procedure for considering representations (including complaints) made to them by any person to whom they may provide special guardianship support services about the discharge of their functions under section 14F in relation to him.
(2)
Regulations may be made by the Secretary of State imposing time limits on the making of representations under subsection (1).
(3)
In considering representations under subsection (1), a local authority shall comply with regulations (if any) made by the Secretary of State for the purposes of this subsection.
Financial relief
15 Orders for financial relief with respect to children.
(1)
Schedule 1 (which consists primarily of the re-enactment, with consequential amendments and minor modifications, of provisions of F73section 6 of Family Law Reform Act 1969the Guardianship of Minors Acts 1971 and 1973, the M9Children Act 1975 and of sections 15 and 16 of the M10Family Law Reform Act 1987) makes provision in relation to financial relief for children.
(2)
The powers of a magistrates’ court under section 60 of the Magistrates’ Courts Act 1980 to revoke, revive or vary an order for the periodical payment of money F74and the power of the clerk of a magistrates’ court to vary such an order shall not apply in relation to an order made under Schedule 1.
Family assistance orders
16 Family assistance orders.
(1)
Where, in any family proceedings, the court has power to make an order under this Part with respect to any child, it may (whether or not it makes such an order) make an order requiring—
(b)
a local authority to make an officer of the authority available,
to advise, assist and (where appropriate) befriend any person named in the order.
(2)
The persons who may be named in an order under this section (“a family assistance order”) are—
(a)
any parent F77, guardian or special guardian of the child;
(b)
any person with whom the child is living or in whose favour a contact order is in force with respect to the child;
(c)
the child himself.
(3)
No court may make a family assistance order unless—
(a)
F78. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)
it has obtained the consent of every person to be named in the order other than the child.
(4)
A family assistance order may direct—
(a)
the person named in the order; or
(b)
such of the persons named in the order as may be specified in the order,
to take such steps as may be so specified with a view to enabling the officer concerned to be kept informed of the address of any person named in the order and to be allowed to visit any such person.
F79(4A)
If the court makes a family assistance order with respect to a child and the order is to be in force at the same time as a contact order made with respect to the child, the family assistance order may direct the officer concerned to give advice and assistance as regards establishing, improving and maintaining contact to such of the persons named in the order as may be specified in the order.
(5)
Unless it specifies a shorter period, a family assistance order shall have effect for a period of F80twelve months beginning with the day on which it is made.
F81(6)
If the court makes a family assistance order with respect to a child and the order is to be in force at the same time as a section 8 order made with respect to the child, the family assistance order may direct the officer concerned to report to the court on such matters relating to the section 8 order as the court may require (including the question whether the section 8 order ought to be varied or discharged).
(7)
A family assistance order shall not be made so as to require a local authority to make an officer of theirs available unless—
(a)
the authority agree; or
(b)
the child concerned lives or will live within their area.
F82(8)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F82(9)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8316ARisk assessments
(1)
This section applies to the following functions of officers of the Service or Welsh family proceedings officers—
(a)
any function in connection with family proceedings in which the court has power to make an order under this Part with respect to a child or in which a question with respect to such an order arises;
(b)
any function in connection with an order made by the court in such proceedings.
(2)
If, in carrying out any function to which this section applies, an officer of the Service or a Welsh family proceedings officer is given cause to suspect that the child concerned is at risk of harm, he must—
(a)
make a risk assessment in relation to the child, and
(b)
provide the risk assessment to the court.
(3)
A risk assessment, in relation to a child who is at risk of suffering harm of a particular sort, is an assessment of the risk of that harm being suffered by the child.
Part III Local Authority Support for Children and Families
Provision of services for children and their families
17 Provision of services for children in need, their families and others.
(1)
It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—
(a)
to safeguard and promote the welfare of children within their area who are in need; and
(b)
so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children’s needs.
(2)
For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.
(3)
Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare.
(4)
The F84appropriate national authority may by order amend any provision of Part I of Schedule 2 or add any further duty or power to those for the time being mentioned there.
F85(4A)
Before determining what (if any) services to provide for a particular child in need in the exercise of functions conferred on them by this section, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare—
(a)
ascertain the child’s wishes and feelings regarding the provision of those services; and
(b)
give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.
(5)
Every local authority—
(a)
(b)
may make such arrangements as they see fit for any person to act on their behalf in the provision of any such service.
(6)
(7)
Assistance may be unconditional or subject to conditions as to the repayment of the assistance or of its value (in whole or in part).
(8)
Before giving any assistance or imposing any conditions, a local authority shall have regard to the means of the child concerned and of each of his parents.
(9)
No person shall be liable to make any repayment of assistance or of its value at any time when he is in receipt of income support F91underF92 Part VII of the Social Security Contributions and Benefits Act 1992,F93 of any element of child tax credit other than the family element, of working tax creditF94, of an income-based jobseeker's allowance or of an income-related employment and support allowance.
(10)
For the purposes of this Part a child shall be taken to be in need if—
(a)
he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b)
his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c)
he is disabled,
and “family”, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
(11)
For the purposes of this Part, a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed; and in this Part—
“development” means physical, intellectual, emotional, social or behavioural development; and
“health” means physical or mental health.
F95(12)
The Treasury may by regulations prescribe circumstances in which a person is to be treated for the purposes of this Part (or for such of those purposes as are prescribed) as in receipt of any element of child tax credit other than the family element or of working tax credit.
F9617A Direct payments
(1)
The F97“appropriate national authority may by regulations make provision for and in connection with requiring or authorising the responsible authority in the case of a person of a prescribed description who falls within subsection (2) to make, with that person’s consent, such payments to him as they may determine in accordance with the regulations in respect of his securing the provision of the service mentioned in that subsection.
(2)
A person falls within this subsection if he is—
(a)
a person with parental responsibility for a disabled child,
(b)
a disabled person with parental responsibility for a child, or
(c)
a disabled child aged 16 or 17,
and a local authority (“the responsible authority”) have decided for the purposes of section 17 that the child’s needs (or, if he is such a disabled child, his needs) call for the provision by them of a service in exercise of functions conferred on them under that section.
(3)
Subsections (3) to (5) and (7) of section 57 of the 2001 Act shall apply, with any necessary modifications, in relation to regulations under this section as they apply in relation to regulations under that section.
(4)
Regulations under this section shall provide that, where payments are made under the regulations to a person falling within subsection (5)—
(a)
the payments shall be made at the rate mentioned in subsection (4)(a) of section 57 of the 2001 Act (as applied by subsection (3)); and
(b)
subsection (4)(b) of that section shall not apply.
(5)
A person falls within this subsection if he is—
(a)
a person falling within subsection (2)(a) or (b) and the child in question is aged 16 or 17, or
(b)
a person who is in receipt of income support F98. . . under Part 7 of the Social Security Contributions and Benefits Act 1992 (c. 4) , of any element of child tax credit other than the family element, of working tax credit F99, of an income-based jobseeker's allowance or of an income-related employment and support allowance .
(6)
In this section—
“the 2001 Act” means the Health and Social Care Act 2001;
“disabled” in relation to an adult has the same meaning as that given by section 17(11) in relation to a child;
“prescribed” means specified in or determined in accordance with regulations under this section (and has the same meaning in the provisions of the 2001 Act mentioned in subsection (3) as they apply by virtue of that subsection).
F10017B Vouchers for persons with parental responsibility for disabled children.
(1)
The F101appropriate national authority may by regulations make provision for the issue by a local authority of vouchers to a person with parental responsibility for a disabled child.
(2)
“Voucher” means a document whereby, if the local authority agrees with the person with parental responsibility that it would help him care for the child if the person with parental responsibility had a break from caring, that person may secure the temporary provision of services for the child under section 17.
(3)
The regulations may, in particular, provide—
(a)
for the value of a voucher to be expressed in terms of money, or of the delivery of a service for a period of time, or both;
(b)
for the person who supplies a service against a voucher, or for the arrangement under which it is supplied, to be approved by the local authority;
(c)
for a maximum period during which a service (or a service of a prescribed description) can be provided against a voucher.
18 Day care for pre-school and other children.
(1)
Every local authority shall provide such day care for children in need within their area who are—
(a)
aged five or under; and
(b)
not yet attending schools,
as is appropriate.
(2)
A local authority F102in Wales may provide day care for children within their area who satisfy the conditions mentioned in subsection (1)(a) and (b) even though they are not in need.
(3)
A local authority may provide facilities (including training, advice, guidance and counselling) for those—
(a)
caring for children in day care; or
(b)
who at any time accompany such children while they are in day care.
(4)
In this section “day care” means any form of care or supervised activity provided for children during the day (whether or not it is provided on a regular basis).
(5)
Every local authority shall provide for children in need within their area who are attending any school such care or supervised activities as is appropriate—
(a)
outside school hours; or
(b)
during school holidays.
(6)
A local authority F103in Wales may provide such care or supervised activities for children within their area who are attending any school even though those children are not in need.
(7)
In this section “supervised activity” means an activity supervised by a responsible person.
F10419 Review of provision for day care, child minding etc.
F105(1)
Every local authority in England and Wales shall review—
(a)
the provision which they make under section 18;
(b)
the extent to which the services of child minders are available within their area with respect to children under the age of eight; and
(c)
the provision for day care within their area made for children under the age of eight by persons other, than the authority, required to register under F106Part XA.
(2)
A review under subsection (1) shall be conducted—
(a)
together with the appropriate local education authority; and
(b)
at least once in every review period.
(3)
Every local authority in Scotland shall, at least once in every review period, review—
(a)
the provision for day care within their area made for children under the age of eight by the local authority and by persons required to register under section 71(1)(b); and
(b)
the extent to which the services of child minders are available within their area with respect to children under the age of eight.
(4)
In conducting any such review, F107the two authorities or, in Scotland,the authority shall have regard to the provision made with respect to children under the age of eight in relevant establishments within their area.
(5)
In this section—
F108“relevant establishment” means—
(a)
in relation to Scotland, any establishment which is mentioned in paragraphs 3 and 4 of Schedule 9 (establishments exempt from the registration requirements which apply in relation to the provision of day care in Scotland); and
(b)
in relation to England and Wales, any establishment which is mentioned in paragraphs 1 and 2 of Schedule 9A (establishments exempt from the registration requirements which apply in relation to the provision of day care in England and Wales);
“review period” means the period of one year beginning with the commencement of this section and each subsequent period of three years beginning with an anniversary of that commencement.
(6)
Where a local authority have conducted a review under this section they shall publish the result of the review—
(a)
as soon as is reasonably practicable;
(b)
in such form as they consider appropriate; and
(c)
together with any proposals they may have with respect to the matters reviewed.
(7)
The authorities conducting any review under this section shall have regard to—
(a)
(b)
any other representations which they consider to be relevant.
(8)
In the application of this section to Scotland, “day care” has the same meaning as in section 79 and “health board” has the same meaning as in the M11National Health Service (Scotland) Act 1978.
Provision of accommodation for children
20 Provision of accommodation for children: general.
(1)
Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
(a)
there being no person who has parental responsibility for him;
(b)
his being lost or having been abandoned; or
(c)
the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
(2)
Where a local authority provide accommodation under subsection (1) for a child who is ordinarily resident in the area of another local authority, that other local authority may take over the provision of accommodation for the child within—
(a)
three months of being notified in writing that the child is being provided with accommodation; or
(b)
such other longer period as may be prescribed.
(3)
Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.
(4)
A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare.
(5)
A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.
(6)
Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare—
(a)
ascertain the child’s wishes F111and feelings regarding the provision of accommodation; and
(b)
give due consideration (having regard to his age and understanding) to such wishes F111and feelings of the child as they have been able to ascertain.
(7)
A local authority may not provide accommodation under this section for any child if any person who—
(a)
has parental responsibility for him; and
(b)
is willing and able to—
(i)
provide accommodation for him; or
(ii)
arrange for accommodation to be provided for him,
objects.
(8)
Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.
(9)
Subsections (7) and (8) do not apply while any person—
(a)
in whose favour a residence order is in force with respect to the child; F112. . .
F113(aa)
who is a special guardian of the child; or
(b)
who has care of the child by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children,
agrees to the child being looked after in accommodation provided by or on behalf of the local authority.
(10)
Where there is more than one such person as is mentioned in subsection (9), all of them must agree.
(11)
Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section.
21 Provision of accommodation for children in police protection or detention or on remand, etc.
(1)
Every local authority shall make provision for the reception and accommodation of children who are removed or kept away from home under Part V.
(2)
Every local authority shall receive, and provide accommodation for, children—
(a)
in police protection whom they are requested to receive under section 46(3)(f);
(b)
whom they are requested to receive under section 38(6) of the M12Police and Criminal Evidence Act 1984;
(c)
who are—
(i)
F116(ia)
remanded to accommodation provided by or on behalf of a local authority by virtue of paragraph 4 of Schedule 1 or paragraph 6 of Schedule 8 to the Powers of Criminal Courts (Sentencing) Act 2000 (breach etc. of referral orders and reparation orders);
F117(ii)
remanded to accommodation provided by or on behalf of a local authority by virtue of paragraph 21 of Schedule 2 to the Criminal Justice and Immigration Act 2008 (breach etc. of youth rehabilitation orders); F118. . .
F119(iia)
remanded to accommodation provided by or on behalf of a local authority by virtue of paragraph 10 of the Schedule to the Street Offences Act 1959 (breach of orders under section 1(2A) of that Act);
F120(iii)
the subject of a youth rehabilitation order imposing a local authority residence requirement or a youth rehabilitation order with fostering,
and with respect to whom they are the designated authority.
F121(2A)
In subsection (2)(c)(iii), the following terms have the same meanings as in Part 1 of the Criminal Justice and Immigration Act 2008 (see section 7 of that Act)—
“local authority residence requirement”;
“youth rehabilitation order”;
“youth rehabilitation order with fostering”.
(3)
Where a child has been—
(a)
removed under Part V; or
(b)
detained under section 38 of the Police and Criminal Evidence Act 1984,
and he is not being provided with accommodation by a local authority or in a hospital vested in the Secretary of State F122“, the Welsh MinistersF123or a Primary Care Trust,F124or otherwise made available pursuant to arrangements made by a F125Health AuthorityF126Local Health Board or a Primary Care Trust, any reasonable expenses of accommodating him shall be recoverable from the local authority in whose area he is ordinarily resident.
Duties of local authorities in relation to children looked after by them
22 General duty of local authority in relation to children looked after by them.
(1)
In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is—
(a)
in their care; or
(2)
In subsection (1) “accommodation” means accommodation which is provided for a continuous period of more than 24 hours.
(3)
It shall be the duty of a local authority looking after any child—
(a)
to safeguard and promote his welfare; and
(b)
to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case.
F130(3A)
The duty of a local authority under subsection (3)(a) to safeguard and promote the welfare of a child looked after by them includes in particular a duty to promote the child’s educational achievement.
(4)
Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of—
(a)
the child;
(b)
his parents;
(c)
any person who is not a parent of his but who has parental responsibility for him; and
(d)
any other person whose wishes and feelings the authority consider to be relevant,
regarding the matter to be decided.
(5)
In making any such decision a local authority shall give due consideration—
(a)
having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain;
(b)
to such wishes and feelings of any person mentioned in subsection (4)(b) to (d) as they have been able to ascertain; and
(c)
to the child’s religious persuasion, racial origin and cultural and linguistic background.
(6)
If it appears to a local authority that it is necessary, for the purpose of protecting members of the public from serious injury, to exercise their powers with respect to a child whom they are looking after in a manner which may not be consistent with their duties under this section, they may do so.
(7)
If the F131appropriate national authority considers it necessary, for the purpose of protecting members of the public from serious injury, to give directions to a local authority with respect to the exercise of their powers with respect to a child whom they are looking after, F132the appropriate national authority may give such directions to F133the local authority .
(8)
Where any such directions are given to an authority they shall comply with them even though doing so is inconsistent with their duties under this section.
F13423 Provision of accommodation and maintenance by local authority for children whom they are looking after.
(1)
It shall be the duty of any local authority looking after a child—
(a)
when he is in their care, to provide accommodation for him; and
(b)
to maintain him in other respects apart from providing accommodation for him.
(2)
A local authority shall provide accommodation and maintenance for any child whom they are looking after by—
(a)
placing him (subject to subsection (5) and any regulations made by the F135appropriate national authority ) with—
(i)
a family;
(ii)
a relative of his; or
(iii)
any other suitable person,
on such terms as to payment by the authority and otherwise as the authority may determine F136(subject to section 49 of the Children Act 2004);
F137(aa)
maintaining him in an appropriate children’s home;
(f)
making such other arrangements as—
(i)
seem appropriate to them; and
(ii)
comply with any regulations made by the F138appropriate national authority .
F139(2A)
(3)
Any person with whom a child has been placed under subsection (2)(a) is referred to in this Act as a local authority foster parent unless he falls within subsection (4).
(4)
A person falls within this subsection if he is—
(a)
a parent of the child;
(b)
a person who is not a parent of the child but who has parental responsibility for him; or
(c)
where the child is in care and there was a residence order in force with respect to him immediately before the care order was made, a person in whose favour the residence order was made.
(5)
Where a child is in the care of a local authority, the authority may only allow him to live with a person who falls within subsection (4) in accordance with regulations made by the F142appropriate national authority .
F143(5A)
For the purposes of subsection (5) a child shall be regarded as living with a person if he stays with that person for a continuous period of more than 24 hours
(6)
Subject to any regulations made by the F144appropriate national authority for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with—
(a)
a person falling within subsection (4); or
(b)
a relative, friend or other person connected with him,
unless that would not be reasonably practicable or consistent with his welfare.
(7)
Where a local authority provide accommodation for a child whom they are looking after, they shall, subject to the provisions of this Part and so far as is reasonably practicable and consistent with his welfare, secure that—
(a)
the accommodation is near his home; and
(b)
where the authority are also providing accommodation for a sibling of his, they are accommodated together.
(8)
Where a local authority provide accommodation for a child whom they are looking after and who is disabled, they shall, so far as is reasonably practicable, secure that the accommodation is not unsuitable to his particular needs.
(9)
Part II of Schedule 2 shall have effect for the purposes of making further provision as to children looked after by local authorities and in particular as to the regulations that may be made under subsections (2)(a) and (f) and (5).
F145(10)
In this Act—
“appropriate children’s home” means a children’s home in respect of which a person is registered under Part II of the Care Standards Act 2000; and
“children’s home” has the same meaning as in that Act.
F14622AProvision of accommodation for children in care
When a child is in the care of a local authority, it is their duty to provide the child with accommodation.
22BMaintenance of looked after children
It is the duty of a local authority to maintain a child they are looking after in other respects apart from the provision of accommodation.
22CWays in which looked after children are to be accommodated and maintained
(1)
This section applies where a local authority are looking after a child (“C”).
(2)
The local authority must make arrangements for C to live with a person who falls within subsection (3) (but subject to subsection (4)).
(3)
A person (“P”) falls within this subsection if—
(a)
P is a parent of C;
(b)
P is not a parent of C but has parental responsibility for C; or
(c)
in a case where C is in the care of the local authority and there was a residence order in force with respect to C immediately before the care order was made, P was a person in whose favour the residence order was made.
(4)
Subsection (2) does not require the local authority to make arrangements of the kind mentioned in that subsection if doing so—
(a)
would not be consistent with C's welfare; or
(b)
would not be reasonably practicable.
(5)
If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.
(6)
In subsection (5) “placement” means—
(a)
placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent;
(b)
placement with a local authority foster parent who does not fall within paragraph (a);
(c)
placement in a children's home in respect of which a person is registered under Part 2 of the Care Standards Act 2000; or
(d)
subject to section 22D, placement in accordance with other arrangements which comply with any regulations made for the purposes of this section.
(7)
In determining the most appropriate placement for C, the local authority must, subject to the other provisions of this Part (in particular, to their duties under section 22)—
(a)
give preference to a placement falling within paragraph (a) of subsection (6) over placements falling within the other paragraphs of that subsection;
(b)
comply, so far as is reasonably practicable in all the circumstances of C's case, with the requirements of subsection (8); and
(c)
comply with subsection (9) unless that is not reasonably practicable.
(8)
The local authority must ensure that the placement is such that—
(a)
it allows C to live near C's home;
(b)
it does not disrupt C's education or training;
(c)
if C has a sibling for whom the local authority are also providing accommodation, it enables C and the sibling to live together;
(d)
if C is disabled, the accommodation provided is suitable to C's particular needs.
(9)
The placement must be such that C is provided with accommodation within the local authority's area.
(10)
The local authority may determine—
(a)
the terms of any arrangements they make under subsection (2) in relation to C (including terms as to payment); and
(b)
the terms on which they place C with a local authority foster parent (including terms as to payment but subject to any order made under section 49 of the Children Act 2004).
(11)
The appropriate national authority may make regulations for, and in connection with, the purposes of this section.
(12)
In this Act “local authority foster parent” means a person who is approved as a local authority foster parent in accordance with regulations made by virtue of paragraph 12F of Schedule 2.
22DReview of child's case before making alternative arrangements for accommodation
(1)
Where a local authority are providing accommodation for a child (“C”) other than by arrangements under section 22C(6)(d), they must not make such arrangements for C unless they have decided to do so in consequence of a review of C's case carried out in accordance with regulations made under section 26.
(2)
But subsection (1) does not prevent a local authority making arrangements for C under section 22C(6)(d) if they are satisfied that in order to safeguard C's welfare it is necessary—
(a)
to make such arrangements; and
(b)
to do so as a matter of urgency.
22EChildren's homes provided by appropriate national authority
Where a local authority place a child they are looking after in a children's home provided, equipped and maintained by an appropriate national authority under section 82(5), they must do so on such terms as that national authority may from time to time determine.
22FRegulations as to children looked after by local authorities
Part 2 of Schedule 2 has effect for the purposes of making further provision as to children looked after by local authorities and in particular as to the regulations which may be made under section 22C(11).
F14722GGeneral duty of local authority to secure sufficient accommodation for looked after children
(1)
It is the general duty of a local authority to take steps that secure, so far as reasonably practicable, the outcome in subsection (2).
(2)
The outcome is that the local authority are able to provide the children mentioned in subsection (3) with accommodation that—
(a)
is within the authority's area; and
(b)
meets the needs of those children.
(3)
The children referred to in subsection (2) are those—
(a)
that the local authority are looking after,
(b)
in respect of whom the authority are unable to make arrangements under section 22C(2), and
(c)
whose circumstances are such that it would be consistent with their welfare for them to be provided with accommodation that is in the authority's area.
(4)
In taking steps to secure the outcome in subsection (2), the local authority must have regard to the benefit of having—
(a)
a number of accommodation providers in their area that is, in their opinion, sufficient to secure that outcome; and
(b)
a range of accommodation in their area capable of meeting different needs that is, in their opinion, sufficient to secure that outcome.
(5)
In this section “accommodation providers” means—
local authority foster parents; and
children's homes in respect of which a person is registered under Part 2 of the Care Standards Act 2000.
F148Visiting
23ZADuty of local authority to ensure visits to, and contact with, looked after children and others
(1)
This section applies to—
(a)
a child looked after by a local authority;
(b)
a child who was looked after by a local authority but who has ceased to be looked after by them as a result of prescribed circumstances.
(2)
It is the duty of the local authority—
(a)
to ensure that a person to whom this section applies is visited by a representative of the authority (“a representative”);
(b)
to arrange for appropriate advice, support and assistance to be available to a person to whom this section applies who seeks it from them.
(3)
The duties imposed by subsection (2)—
(a)
are to be discharged in accordance with any regulations made for the purposes of this section by the appropriate national authority;
(b)
are subject to any requirement imposed by or under an enactment applicable to the place in which the person to whom this section applies is accommodated.
(4)
Regulations under this section for the purposes of subsection (3)(a) may make provision about—
(a)
the frequency of visits;
(b)
circumstances in which a person to whom this section applies must be visited by a representative; and
(c)
the functions of a representative.
(5)
In choosing a representative a local authority must satisfy themselves that the person chosen has the necessary skills and experience to perform the functions of a representative.
F14923ZBIndependent visitors for children looked after by a local authority
(1)
A local authority looking after a child must appoint an independent person to be the child's visitor if—
(a)
the child falls within a description prescribed in regulations made by the appropriate national authority; or
(b)
in any other case, it appears to them that it would be in the child's interests to do so.
(2)
A person appointed under this section must visit, befriend and advise the child.
(3)
A person appointed under this section is entitled to recover from the appointing authority any reasonable expenses incurred by that person for the purposes of that person's functions under this section.
(4)
A person's appointment as a visitor in pursuance of this section comes to an end if—
(a)
the child ceases to be looked after by the local authority;
(b)
the person resigns the appointment by giving notice in writing to the appointing authority; or
(c)
the authority give him notice in writing that they have terminated it.
(5)
The ending of such an appointment does not affect any duty under this section to make a further appointment.
(6)
Where a local authority propose to appoint a visitor for a child under this section, the appointment shall not be made if—
(a)
the child objects to it; and
(b)
the authority are satisfied that the child has sufficient understanding to make an informed decision.
(7)
Where a visitor has been appointed for a child under this section, the local authority shall terminate the appointment if—
(a)
the child objects to its continuing; and
(b)
the authority are satisfied that the child has sufficient understanding to make an informed decision.
(8)
If the local authority give effect to a child's objection under subsection (6) or (7) and the objection is to having anyone as the child's visitor, the authority does not have to propose to appoint another person under subsection (1) until the objection is withdrawn.
(9)
The appropriate national authority may make regulations as to the circumstances in which a person is to be regarded for the purposes of this section as independent of the appointing authority.
Advice and assistance for certain children F150 and young persons
F15123A The responsible authority and relevant children.
(1)
The responsible local authority shall have the functions set out in section 23B in respect of a relevant child.
(2)
In subsection (1) “relevant child” means (subject to subsection (3)) a child who—
(a)
is not being looked after by any local authority;
(b)
was, before last ceasing to be looked after, an eligible child for the purposes of paragraph 19B of Schedule 2; and
(c)
is aged sixteen or seventeen.
(3)
The F152appropriate national authority may prescribe—
(a)
additional categories of relevant children; and
(b)
categories of children who are not to be relevant children despite falling within subsection (2).
(4)
In subsection (1) the “responsible local authority” is the one which last looked after the child.
(5)
If under subsection (3)(a) the F153appropriate national authority prescribes a category of relevant children which includes children who do not fall within subsection (2)(b) (for example, because they were being looked after by a local authority in Scotland), F154the appropriate national authority may in the regulations also provide for which local authority is to be the responsible local authority for those children.
F15523B Additional functions of the responsible authority in respect of relevant children.
(1)
It is the duty of each local authority to take reasonable steps to keep in touch with a relevant child for whom they are the responsible authority, whether he is within their area or not.
(2)
It is the duty of each local authority to appoint a personal adviser for each relevant child (if they have not already done so under paragraph 19C of Schedule 2).
(3)
It is the duty of each local authority, in relation to any relevant child who does not already have a pathway plan prepared for the purposes of paragraph 19B of Schedule 2—
(a)
to carry out an assessment of his needs with a view to determining what advice, assistance and support it would be appropriate for them to provide him under this Part; and
(b)
to prepare a pathway plan for him.
(4)
F156The local authority may carry out such an assessment at the same time as any assessment of his needs is made under any enactment referred to in sub-paragraphs (a) to (c) of paragraph 3 of Schedule 2, or under any other enactment.
(5)
(6)
F156The regulations may in particular make provision about—
(a)
who is to be consulted in relation to an assessment;
(b)
the way in which an assessment is to be carried out, by whom and when;
(c)
the recording of the results of an assessment;
(d)
the considerations to which the local authority are to have regard in carrying out an assessment.
(7)
(8)
The responsible local authority shall safeguard and promote the child’s welfare and, unless they are satisfied that his welfare does not require it, support him by—
(a)
maintaining him;
(b)
providing him with or maintaining him in suitable accommodation; and
(c)
providing support of such other descriptions as may be prescribed.
(9)
Support under subsection (8) may be in cash.
(10)
The F159appropriate national authority may by regulations make provision about the meaning of “suitable accommodation” and in particular about the suitability of landlords or other providers of accommodation.
(11)
If the local authority have lost touch with a relevant child, despite taking reasonable steps to keep in touch, they must without delay—
(a)
consider how to re-establish contact; and
(b)
take reasonable steps to do so,
and while the child is still a relevant child must continue to take such steps until they succeed.
(12)
Subsections (7) to (9) of section 17 apply in relation to support given under this section as they apply in relation to assistance given under that section.
(13)
Subsections (4) and (5) of section 22 apply in relation to any decision by a local authority for the purposes of this section as they apply in relation to the decisions referred to in that section.
F16023C Continuing functions in respect of former relevant children.
(1)
Each local authority shall have the duties provided for in this section towards—
(a)
a person who has been a relevant child for the purposes of section 23A (and would be one if he were under eighteen), and in relation to whom they were the last responsible authority; and
(b)
a person who was being looked after by them when he attained the age of eighteen, and immediately before ceasing to be looked after was an eligible child,
and in this section such a person is referred to as a “former relevant child”.
(2)
It is the duty of the local authority to take reasonable steps—
(a)
to keep in touch with a former relevant child whether he is within their area or not; and
(b)
if they lose touch with him, to re-establish contact.
(3)
It is the duty of the local authority—
(a)
to continue the appointment of a personal adviser for a former relevant child; and
(b)
to continue to keep his pathway plan under regular review.
(4)
It is the duty of the local authority to give a former relevant child—
(a)
assistance of the kind referred to in section 24B(1), to the extent that his welfare requires it;
(b)
assistance of the kind referred to in section 24B(2), to the extent that his welfare and his educational or training needs require it;
(c)
other assistance, to the extent that his welfare requires it.
(5)
The assistance given under subsection (4)(c) may be in kind or, in exceptional circumstances, in cash.
F161(5A)
It is the duty of the local authority to pay the relevant amount to a former relevant child who pursues higher education in accordance with a pathway plan prepared for that person.
(5B)
The appropriate national authority may by regulations—
(a)
prescribe the relevant amount for the purposes of subsection (5A);
(b)
prescribe the meaning of “higher education” for those purposes;
(c)
make provision as to the payment of the relevant amount;
(d)
make provision as to the circumstances in which the relevant amount (or any part of it) may be recovered by the local authority from a former relevant child to whom a payment has been made.
(5C)
The duty set out in subsection (5A) is without prejudice to that set out in subsection (4)(b).
(6)
Subject to subsection (7), the duties set out in subsections (2), (3) and (4) subsist until the former relevant child reaches the age of twenty-one.
(7)
If the former relevant child’s pathway plan sets out a programme of education or training which extends beyond his twenty-first birthday—
(a)
the duty set out in subsection (4)(b) continues to subsist for so long as the former relevant child continues to pursue that programme; and
(b)
the duties set out in subsections (2) and (3) continue to subsist concurrently with that duty.
(8)
For the purposes of subsection (7)(a) there shall be disregarded any interruption in a former relevant child’s pursuance of a programme of education or training if the local authority are satisfied that he will resume it as soon as is reasonably practicable.
(9)
Section 24B(5) applies in relation to a person being given assistance under subsection (4)(b) F162or who is in receipt of a payment under subsection (5A) as it applies in relation to a person to whom section 24B(3) applies.
(10)
Subsections (7) to (9) of section 17 apply in relation to assistance given under this section as they apply in relation to assistance given under that section.
F16323CAFurther assistance to pursue education or training
(1)
This section applies to a person if—
(a)
he is under the age of twenty-five or of such lesser age as may be prescribed by the appropriate national authority;
(b)
he is a former relevant child (within the meaning of section 23C) towards whom the duties imposed by subsections (2), (3) and (4) of that section no longer subsist; and
(c)
he has informed the responsible local authority that he is pursuing, or wishes to pursue, a programme of education or training.
(2)
It is the duty of the responsible local authority to appoint a personal adviser for a person to whom this section applies.
(3)
It is the duty of the responsible local authority—
(a)
to carry out an assessment of the needs of a person to whom this section applies with a view to determining what assistance (if any) it would be appropriate for them to provide to him under this section; and
(b)
to prepare a pathway plan for him.
(4)
It is the duty of the responsible local authority to give assistance of a kind referred to subsection (5) to a person to whom this section applies to the extent that his educational or training needs require it.
(5)
The kinds of assistance are—
(a)
contributing to expenses incurred by him in living near the place where he is, or will be, receiving education or training; or
(b)
making a grant to enable him to meet expenses connected with his education and training.
(6)
If a person to whom this section applies pursues a programme of education or training in accordance with the pathway plan prepared for him, the duties of the local authority under this section (and under any provision applicable to the pathway plan prepared under this section for that person) subsist for as long as he continues to pursue that programme.
(7)
For the purposes of subsection (6), the local authority may disregard any interruption in the person's pursuance of a programme of education or training if they are satisfied that he will resume it as soon as is reasonably practicable.
(8)
Subsections (7) to (9) of section 17 apply to assistance given to a person under this section as they apply to assistance given to or in respect of a child under that section, but with the omission in subsection (8) of the words “and of each of his parents”.
(9)
Subsection (5) of section 24B applies to a person to whom this section applies as it applies to a person to whom subsection (3) of that section applies.
(10)
Nothing in this section affects the duty imposed by subsection (5A) of section 23C to the extent that it subsists in relation to a person to whom this section applies; but the duty to make a payment under that subsection may be taken into account in the assessment of the person's needs under subsection (3)(a).
(11)
In this section “the responsible local authority” means, in relation to a person to whom this section applies, the local authority which had the duties provided for in section 23C towards him.
F164 Personal advisers and pathway plans
F16523D Personal advisers.
(1)
The F166appropriate national authority may by regulations require local authorities to appoint a personal adviser for children or young persons of a prescribed description who have reached the age of sixteen but not the age of F167twenty-five who are not—
(a)
children who are relevant children for the purposes of section 23A;
(b)
the young persons referred to in section 23C; or
(c)
the children referred to in paragraph 19C of Schedule 2.F168; or
“(d)
persons to whom section 23CA applies.
(2)
Personal advisers appointed under or by virtue of this Part shall (in addition to any other functions) have such functions as the F169appropriate national authority prescribes.
F17023E Pathway plans.
(1)
In this Part, a reference to a “pathway plan” is to a plan setting out—
(a)
in the case of a plan prepared under paragraph 19B of Schedule 2—
(i)
the advice, assistance and support which the local authority intend to provide a child under this Part, both while they are looking after him and later; and
(ii)
when they might cease to look after him; and
(b)
in the case of a plan prepared under section 23B F171or 23CA , the advice, assistance and support which the local authority intend to provide under this Part,
and dealing with such other matters (if any) as may be prescribed.
F172(1A)
A local authority may carry out an assessment under section 23B(3) or 23CA(3) of a person's needs at the same time as any assessment of his needs is made under—
(a)
the Chronically Sick and Disabled Persons Act 1970;
(b)
Part 4 of the Education Act 1996 (in the case of an assessment under section 23B(3));
(c)
the Disabled Persons (Services, Consultation and Representation) Act 1986; or
(d)
any other enactment.
(1B)
The appropriate national authority may by regulations make provision as to assessments for the purposes of section 23B(3) or 23CA.
(1C)
Regulations under subsection (1B) may in particular make provision about—
(a)
who is to be consulted in relation to an assessment;
(b)
the way in which an assessment is to be carried out, by whom and when;
(c)
the recording of the results of an assessment;
(d)
the considerations to which a local authority are to have regard in carrying out an assessment.
(1D)
A local authority shall keep each pathway plan prepared by them under section 23B or 23CA under review.
(2)
The F173appropriate national authority may by regulations make provision about pathway plans and their review.
F17424 Persons qualifying for advice and assistance.
F175(1)
In this Part “a person qualifying for advice and assistance” means a person to whom subsection (1A) or (1B) applies.
(1A)
This subsection applies to a person—
(a)
who has reached the age of sixteen but not the age of twenty-one;
(b)
with respect to whom a special guardianship order is in force (or, if he has reached the age of eighteen, was in force when he reached that age); and
(c)
who was, immediately before the making of that order, looked after by a local authority.
(1B)
This subsection applies to a person to whom subsection (1A) does not apply, and who—
(a)
is under twenty-one; and
(b)
at any time after reaching the age of sixteen but while still a child was, but is no longer, looked after, accommodated or fostered.
(2)
In F176subsection (1B)(b), “looked after, accommodated or fostered” means—
(a)
looked after by a local authority;
(b)
accommodated by or on behalf of a voluntary organisation;
(c)
accommodated in a private children’s home;
(d)
accommodated for a consecutive period of at least three months—
(i)
(ii)
in any care home or independent hospital or in any accommodation provided by a National Health Service trust F179or an NHS foundation trust ; or
(e)
privately fostered.
(3)
Subsection (2)(d) applies even if the period of three months mentioned there began before the child reached the age of sixteen.
(4)
In the case of a person qualifying for advice and assistance by virtue of subsection (2)(a), it is the duty of the local authority which last looked after him to take such steps as they think appropriate to contact him at such times as they think appropriate with a view to discharging their functions under sections 24A and 24B.
(5)
In each of sections 24A and 24B, the local authority under the duty or having the power mentioned there (“the relevant authority”) is—
F180(za)
in the case of a person to whom subsection (1A) applies, a local authority determined in accordance with regulations made by the F181appropriate national authority ;
(a)
in the case of a person qualifying for advice and assistance by virtue of subsection (2)(a), the local authority which last looked after him; or
(b)
in the case of any other person qualifying for advice and assistance, the local authority within whose area the person is (if he has asked for help of a kind which can be given under section 24A or 24B).
F18224A Advice and assistance.
(1)
The relevant authority shall consider whether the conditions in subsection (2) are satisfied in relation to a person qualifying for advice and assistance.
(2)
The conditions are that—
(a)
he needs help of a kind which they can give under this section or section 24B; and
(b)
in the case of a person F183to whom section 24(1A) applies, or to whom section 24(1B) applies and who was not being looked after by any local authority, they are satisfied that the person by whom he was being looked after does not have the necessary facilities for advising or befriending him.
(3)
If the conditions are satisfied—
(a)
they shall advise and befriend him if F184he is a person to whom section 24(1A) applies, or he is a person to whom section 24(1B) applies and he was being looked after by a local authority or was accommodated by or on behalf of a voluntary organisation; and
(b)
in any other case they may do so.
(4)
Where as a result of this section a local authority are under a duty, or are empowered, to advise and befriend a person, they may also give him assistance.
(5)
The assistance may be in kind F185and, in exceptional circumstances, assistance may be given—
(a)
by providing accommodation, if in the circumstances assistance may not be given in respect of the accommodation under section 24B, or
(b)
in cash.
(6)
Subsections (7) to (9) of section 17 apply in relation to assistance given under this section or section 24B as they apply in relation to assistance given under that section.
F18624B Employment, education and training.
(1)
The relevant local authority may give assistance to any person who qualifies for advice and assistance by virtue of F187section 24(1A) or section 24(2)(a) by contributing to expenses incurred by him in living near the place where he is, or will be, employed or seeking employment.
(2)
The relevant local authority may give assistance to a person to whom subsection (3) applies by—
(a)
contributing to expenses incurred by the person in question in living near the place where he is, or will be, receiving education or training; or
(b)
making a grant to enable him to meet expenses connected with his education or training.
(3)
This subsection applies to any person who—
(a)
is under F188twenty-five ; and
(b)
qualifies for advice and assistance by virtue of F187section 24(1A) or section 24(2)(a), or would have done so if he were under twenty-one.
(4)
Where a local authority are assisting a person under subsection (2) they may disregard any interruption in his attendance on the course if he resumes it as soon as is reasonably practicable.
(5)
Where the local authority are satisfied that a person to whom subsection (3) applies who is in full-time further or higher education needs accommodation during a vacation because his term-time accommodation is not available to him then, they shall give him assistance by—
(a)
providing him with suitable accommodation during the vacation; or
(b)
paying him enough to enable him to secure such accommodation himself.
(6)
The F189appropriate national authority may prescribe the meaning of “full-time”, “further education”, “higher education” and “vacation” for the purposes of subsection (5).
F19024CInformation.
(1)
Where it appears to a local authority that a person—
(a)
with whom they are under a duty to keep in touch under section 23B, 23C or 24; or
(b)
whom they have been advising and befriending under section 24A; or
(c)
to whom they have been giving assistance under section 24B,
proposes to live, or is living, in the area of another local authority, they must inform that other authority.
(2)
Where a child who is accommodated—
(a)
by a voluntary organisation or in a private children’s home;
(b)
(c)
in any care home or independent hospital or any accommodation provided by a National Health Service trust F193or an NHS foundation trust ,
ceases to be so accommodated, after reaching the age of sixteen, the organisation, authority or (as the case may be) person carrying on the home shall inform the local authority within whose area the child proposes to live.
(3)
Subsection (2) only applies, by virtue of paragraph (b) or (c), if the accommodation has been provided for a consecutive period of at least three months.
F194(4)
In a case where a child was accommodated by a local authority in the exercise of education functions, subsection (2) applies only if the local authority who accommodated the child are different from the local authority within whose area the child proposes to live.
F19524D Representations: sections 23A to 24B.
(1)
Every local authority shall establish a procedure for considering representations (including complaints) made to them by—
(a)
a relevant child for the purposes of section 23A or a young person falling within section 23C;
(b)
a person qualifying for advice and assistance; or
(c)
a person falling within section 24B(2),
about the discharge of their functions under this Part in relation to him.
F196(1A)
Regulations may be made by the F197appropriate national authority imposing time limits on the making of representations under subsection (1).
(2)
In considering representations under subsection (1), a local authority shall comply with regulations (if any) made by the F198appropriate national authority for the purposes of this subsection.
Secure accommodation
25 Use of accommodation for restricting liberty.
(1)
Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty (“secure accommodation”) unless it appears—
(a)
that—
(i)
he has a history of absconding and is likely to abscond from any other description of accommodation; and
(ii)
if he absconds, he is likely to suffer significant harm; or
(b)
that if he is kept in any other description of accommodation he is likely to injure himself or other persons.
(2)
The F199appropriate national authority may by regulations—
(a)
specify a maximum period—
(i)
beyond which a child may not be kept in secure accommodation without the authority of the court; and
(ii)
for which the court may authorise a child to be kept in secure accommodation;
(b)
empower the court from time to time to authorise a child to be kept in secure accommodation for such further period as the regulations may specify; and
(c)
provide that applications to the court under this section shall be made only by local authorities.
(3)
It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied in his case.
(4)
If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept.
(5)
On any adjournment of the hearing of an application under this section, a court may make an interim order permitting the child to be kept during the period of the adjournment in secure accommodation.
(6)
No court shall exercise the powers conferred by this section in respect of a child who is not legally represented in that court unless, having been informed of his right to apply for F200representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service and having had the opportunity to do so, he refused or failed to apply.
(7)
The F199appropriate national authority may by regulations provide that—
(a)
this section shall or shall not apply to any description of children specified in the regulations;
(b)
this section shall have effect in relation to children of a description specified in the regulations subject to such modifications as may be so specified;
(c)
such other provisions as may be so specified shall have effect for the purpose of determining whether a child of a description specified in the regulations may be placed or kept in secure accommodation.
(8)
The giving of an authorisation under this section shall not prejudice any power of any court in England and Wales or Scotland to give directions relating to the child to whom the authorisation relates.
(9)
This section is subject to section 20(8).
F201Independent reviewing officers
25AAppointment of independent reviewing officer
(1)
If a local authority are looking after a child, they must appoint an individual as the independent reviewing officer for that child's case.
(2)
The initial appointment under subsection (1) must be made before the child's case is first reviewed in accordance with regulations made under section 26.
(3)
If a vacancy arises in respect of a child's case, the local authority must make another appointment under subsection (1) as soon as is practicable.
(4)
An appointee must be of a description prescribed in regulations made by the appropriate national authority.
25BFunctions of the independent reviewing officer
(1)
The independent reviewing officer must—
(a)
monitor the performance by the local authority of their functions in relation to the child's case;
(b)
participate, in accordance with regulations made by the appropriate national authority, in any review of the child's case;
(c)
ensure that any ascertained wishes and feelings of the child concerning the case are given due consideration by the local authority;
(d)
perform any other function which is prescribed in regulations made by the appropriate national authority.
(2)
An independent reviewing officer's functions must be performed—
(a)
in such manner (if any) as may be prescribed in regulations made by the appropriate national authority; and
(b)
having regard to such guidance as that authority may issue in relation to the discharge of those functions.
(3)
If the independent reviewing officer considers it appropriate to do so, the child's case may be referred by that officer to—
(a)
an officer of the Children and Family Court Advisory and Support Service; or
(b)
a Welsh family proceedings officer.
(4)
If the independent reviewing officer is not an officer of the local authority, it is the duty of the authority—
(a)
to co-operate with that individual; and
(b)
to take all such reasonable steps as that individual may require of them to enable that individual's functions under this section to be performed satisfactorily.
F20225CReferred cases
(1)
In relation to children whose cases are referred to officers under section 25B(3), the Lord Chancellor may by regulations—
(a)
extend any functions of the officers in respect of family proceedings (within the meaning of section 12 of the Criminal Justice and Court Services Act 2000) to other proceedings;
(b)
require any functions of the officers to be performed in the manner prescribed by the regulations.
(2)
The power to make regulations in this section is exercisable in relation to functions of Welsh family proceedings officers only with the consent of the Welsh Ministers.
26 Review of cases and inquiries into representations.
(1)
The F203appropriate national authority may make regulations requiring the case of each child who is being looked after by a local authority to be reviewed in accordance with the provisions of the regulations.
(2)
The regulations may, in particular, make provision—
(a)
as to the manner in which each case is to be reviewed;
(b)
as to the considerations to which the local authority are to have regard in reviewing each case;
(c)
as to the time when each case is first to be reviewed and the frequency of subsequent reviews;
(d)
requiring the authority, before conducting any review, to seek the views of—
(i)
the child;
(ii)
his parents;
(iii)
any person who is not a parent of his but who has parental responsibility for him; and
(iv)
any other person whose views the authority consider to be relevant,
including, in particular, the views of those persons in relation to any particular matter which is to be considered in the course of the review;
(e)
requiring the authority F204. . . , in the case of a child who is in their care
F205(i)
to keep the section 31A plan for the child under review and, if they are of the opinion that some change is required, to revise the plan, or make a new plan, accordingly,
(ii)
to consider, whether an application should be made to discharge the care order;
(f)
requiring the authority F206. . . , in the case of a child in accommodation provided by the authority
F207(i)
if there is no plan for the future care of the child, to prepare one,
(ii)
if there is such a plan for the child, to keep it under review and, if they are of the opinion that some change is required, to revise the plan or make a new plan, accordingly,
(iii)
to consider, whether the accommodation accords with the requirements of this Part;
(g)
requiring the authority to inform the child, so far as is reasonably practicable, of any steps he may take under this Act;
(h)
requiring the authority to make arrangements, including arrangements with such other bodies providing services as it considers appropriate, to implement any decision which they propose to make in the course, or as a result, of the review;
(i)
requiring the authority to notify details of the result of the review and of any decision taken by them in consequence of the review to—
(i)
the child;
(ii)
his parents;
(iii)
any person who is not a parent of his but who has parental responsibility for him; and
(iv)
any other person whom they consider ought to be notified;
(j)
requiring the authority to monitor the arrangements which they have made with a view to ensuring that they comply with the regulations.
F210(2A)
F211The functions referred to in subsection (2)(k) are—
(a)
participating in the review of the case in question,
(b)
monitoring the performance of the authority’s functions in respect of the review,
(c)
referring the case to an officer of the Children and Family Court Advisory and Support Service F212or a Welsh family proceedings officer, if the person appointed under subsection (2)(k) considers it appropriate to do so.
(2B)
F211A person appointed under subsection (2)(k) must be a person of a prescribed description.
(2C)
F211In relation to children whose cases are referred to officers under subsection (2A)(c), the Lord Chancellor may by regulations—
(a)
extend any functions of the officers in respect of family proceedings (within the meaning of section 12 of the Criminal Justice and Court Services Act 2000) to other proceedings,
(b)
require any functions of the officers to be performed in the manner prescribed by the regulations.
F213(2D)
(3)
Every local authority shall establish a procedure for considering any representations (including any complaint) made to them by—
(a)
any child who is being looked after by them or who is not being looked after by them but is in need;
(b)
a parent of his;
(c)
any person who is not a parent of his but who has parental responsibility for him;
(d)
any local authority foster parent;
(e)
such other person as the authority consider has a sufficient interest in the child’s welfare to warrant his representations being considered by them,
about the discharge by the authority of any of their F215qualifying functions in relation to the child.
F216(3A)
The following are qualifying functions for the purposes of subsection (3)—
(a)
functions under this Part,
(b)
such functions under Part 4 or 5 as are specified by the F217appropriate national authority in regulations.
(3B)
The duty under subsection (3) extends to representations (including complaints) made to the authority by—
(a)
any person mentioned in section 3(1) of the Adoption and Children Act 2002 (persons for whose needs provision is made by the Adoption Service) and any other person to whom arrangements for the provision of adoption support services (within the meaning of that Act) extend,
(b)
such other person as the authority consider has sufficient interest in a child who is or may be adopted to warrant his representations being considered by them,
about the discharge by the authority of such functions under the Adoption and Children Act 2002 as are specified by the F218appropriate national authority in regulations.
F219(3C)
The duty under subsection (3) extends to any representations (including complaints) which are made to the authority by—
(a)
a child with respect to whom a special guardianship order is in force,
(b)
a special guardian or a parent of such a child,
(c)
any other person the authority consider has a sufficient interest in the welfare of such a child to warrant his representations being considered by them, or
(d)
any person who has applied for an assessment under section 14F(3) or (4),
about the discharge by the authority of such functions under section 14F as may be specified by the F220appropriate national authority in regulations.
(4)
The procedure shall ensure that at least one person who is not a member or officer of the authority takes part in—
(a)
the consideration; and
(b)
any discussions which are held by the authority about the action (if any) to be taken in relation to the child in the light of the consideration
F221but this subsection is subject to subsection (5A).
F222(4A)
Regulations may be made by the F223appropriate national authority imposing time limits on the making of representations under this section.
(5)
In carrying out any consideration of representations under this section a local authority shall comply with any regulations made by the F224appropriate national authority for the purpose of regulating the procedure to be followed.
F225(5A)
Regulations under subsection (5) may provide that subsection (4) does not apply in relation to any consideration or discussion which takes place as part of a procedure for which provision is made by the regulations for the purpose of resolving informally the matters raised in the representations.
(6)
The F226appropriate national authority may make regulations requiring local authorities to monitor the arrangements that they have made with a view to ensuring that they comply with any regulations made for the purposes of subsection (5).
(7)
Where any representation has been considered under the procedure established by a local authority under this section, the authority shall—
(a)
have due regard to the findings of those considering the representation; and
(b)
take such steps as are reasonably practicable to notify (in writing)—
(i)
the person making the representation;
(ii)
the child (if the authority consider that he has sufficient understanding); and
(iii)
such other persons (if any) as appear to the authority to be likely to be affected,
of the authority’s decision in the matter and their reasons for taking that decision and of any action which they have taken, or propose to take.
(8)
Every local authority shall give such publicity to their procedure for considering representations under this section as they consider appropriate.
F22726ZARepresentations: further consideration
F228. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F22926ZBRepresentations: further consideration (Wales)
(1)
The F230Welsh Ministers may by regulations make provision for the further consideration of representations which have been considered by a local authority in Wales under section 24D or section 26.
(2)
The regulations may in particular make provision—
(a)
for the further consideration of a representation by an independent panel established under the regulations;
(b)
about the procedure to be followed on the further consideration of a representation;
(c)
for the making of recommendations about the action to be taken as the result of a representation;
(d)
about the making of reports about a representation;
(e)
about the action to be taken by the local authority concerned as a result of the further consideration of a representation;
(f)
for a representation to be referred back to the local authority concerned for reconsideration by the authority.
(3)
The regulations may require—
(a)
the making of a payment, in relation to the further consideration of a representation under this section, by any local authority in respect of whose functions the representation is made;
(b)
any such payment to be—
(i)
made to such person or body as may be specified in the regulations;
(ii)
of such amount as may be specified in, or calculated or determined under, the regulations; and
(c)
for an independent panel to review the amount chargeable under paragraph (a) in any particular case and, if the panel thinks fit, to substitute a lesser amount.
(4)
The regulations may also—
(a)
provide for different parts or aspects of a representation to be treated differently;
(b)
require the production of information or documents in order to enable a representation to be properly considered;
(c)
authorise the disclosure of information or documents relevant to a representation to a person or body who is further considering a representation under the regulations;
and any such disclosure may be authorised notwithstanding any rule of common law that would otherwise prohibit or restrict the disclosure.
F23126A Advocacy services
(1)
Every local authority shall make arrangements for the provision of assistance to—
(a)
persons who make or intend to make representations under section 24D; and
(b)
children who make or intend to make representations under section 26.
(2)
The assistance provided under the arrangements shall include assistance by way of representation.
F232(2A)
The duty under subsection (1) includes a duty to make arrangements for the provision of assistance where representations under section 24D or 26 are further considered under section F233. . . 26ZB.
(3)
The arrangements—
(a)
shall secure that a person may not provide assistance if he is a person who is prevented from doing so by regulations made by the F234appropriate national authority; and
(b)
shall comply with any other provision made by the regulations in relation to the arrangements.
(4)
The F235appropriate national authority may make regulations requiring local authorities to monitor the steps that they have taken with a view to ensuring that they comply with regulations made for the purposes of subsection (3).
(5)
Every local authority shall give such publicity to their arrangements for the provision of assistance under this section as they consider appropriate.
27 Co-operation between authorities.
(1)
(2)
An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.
(3)
The F237authorities are—
(a)
any local authority;
(b)
F238. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)
any local housing authority;
(d)
(e)
any person authorised by the F243appropriate national authority for the purposes of this section.
F244(4)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28 Consultation with local education authorities.
F245. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
29 Recoupment of cost of providing services etc.
(1)
Where a local authority provide any service under section 17 or 18, other than advice, guidance or counselling, they may recover from a person specified in subsection (4) such charge for the service as they consider reasonable.
(2)
Where the authority are satisfied that that person’s means are insufficient for it to be reasonably practicable for him to pay the charge, they shall not require him to pay more than he can reasonably be expected to pay.
(3)
No person shall be liable to pay any charge under subsection (1) F246for a service provided under section 17 or section 18(1) or (5) at any time when he is in receipt of income support F247underF248Part VII of the Social Security Contributions and Benefits Act 1992F249, of any element of child tax credit other than the family element, of working tax creditF250, of an income-based jobseeker's allowance or of an income-related employment and support allowance.
F251(3A)
No person shall be liable to pay any charge under subsection (1) for a service provided under section 18(2) or (6) at any time when he is in receipt of income support under Part VII of the Social Security Contributions and Benefits Act 1992 F250, of an income-based jobseeker's allowance or of an income-related employment and support allowance.
F252(3B)
No person shall be liable to pay any charge under subsection (1) for a service provided under section 18(2) or (6) at any time when—
(a)
he is in receipt of guarantee state pension credit under section 1(3)(a) of the State Pension Credit Act 2002, or
(b)
he is a member of a F253couple (within the meaning of that Act) the other member of which is in receipt of guarantee state pension credit.
(4)
The persons are—
(a)
where the service is provided for a child under sixteen, each of his parents;
(b)
where it is provided for a child who has reached the age of sixteen, the child himself; and
(c)
where it is provided for a member of the child’s family, that member.
(5)
Any charge under subsection (1) may, without prejudice to any other method of recovery, be recovered summarily as a civil debt.
(6)
Part III of Schedule 2 makes provision in connection with contributions towards the maintenance of children who are being looked after by local authorities and consists of the re-enactment with modifications of provisions in Part V of the M15Child Care Act 1980.
(7)
Where a local authority provide any accommodation under section 20(1) for a child who was (immediately before they began to look after him) ordinarily resident within the area of another local authority, they may recover from that other authority any reasonable expenses incurred by them in providing the accommodation and maintaining him.
(8)
Where a local authority provide accommodation under section 21(1) or (2)(a) or (b) for a child who is ordinarily resident within the area of another local authority and they are not maintaining him in—
(a)
a community home provided by them;
(b)
a controlled community home; or
(c)
they may recover from that other authority any reasonable expenses incurred by them in providing the accommodation and maintaining him.
(9)
F259Except where subsection (10) applies, Where a local authority comply with any request under section 27(2) in relation to a child or other person who is not ordinarily resident within their area, they may recover from the local authority in whose area the child or person is ordinarily resident any F260reasonable expenses incurred by them in respect of that person.
F261(10)
Where a local authority (“authority A”) comply with any request under section 27(2) from another local authority (“authority B”) in relation to a child or other person—
(a)
whose responsible authority is authority B for the purposes of section 23B or 23C; or
(b)
whom authority B are advising or befriending or to whom they are giving assistance by virtue of section 24(5)(a),
authority A may recover from authority B any reasonable expenses incurred by them in respect of that person.
30 Miscellaneous.
(1)
Nothing in this Part shall affect any duty imposed on a local authority by or under any other enactment.
(2)
Any question arising under section 20(2), 21(3) or 29(7) to (9) as to the ordinary residence of a child shall be determined by agreement between the local authorities concerned or, in default of agreement, by the F262determining authority.
F263(2A)
For the purposes of subsection (2) “the determining authority” is—
(a)
in a case where all the local authorities concerned are in Wales, the Welsh Ministers;
(b)
in any other case, the Secretary of State.
(2B)
In a case where—
(a)
the determining authority is the Secretary of State, and
(b)
one or more of the local authorities concerned are in Wales,
the Secretary of State must consult the Welsh Ministers before making a determination for the purposes of subsection (2).
(3)
F264. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)
The F265appropriate national authority may make regulations for determining, as respects any F266education functions specified in the regulations, whether a child who is being looked after by a local authority is to be treated, for purposes so specified, as a child of parents of sufficient resources or as a child of parents without resources.
F26730AMeaning of appropriate national authority
In this Part “the appropriate national authority” means—
(a)
in relation to England, the Secretary of State; and
(b)
in relation to Wales, the Welsh Ministers.
Part IV Care and Supervision
General
31 Care and Supervision
(1)
On the application of any local authority or authorised person, the court may make an order—
(a)
placing the child with respect to whom the application is made in the care of a designated local authority; or
(b)
putting him under the supervision of a designated local authority F268. . ..
(2)
A court may only make a care order or supervision order if it is satisfied—
(a)
that the child concerned is suffering, or is likely to suffer, significant harm; and
(b)
that the harm, or likelihood of harm, is attributable to—
(i)
the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii)
the child’s being beyond parental control.
(3)
No care order or supervision order may be made with respect to a child who has reached the age of seventeen (or sixteen, in the case of a child who is married).
F269(3A)
No care order may be made with respect to a child until the court has considered a section 31A plan.
(4)
An application under this section may be made on its own or in any other family proceedings.
(5)
The court may—
(a)
on an application for a care order, make a supervision order;
(b)
on an application for a supervision order, make a care order.
(6)
Where an authorised person proposes to make an application under this section he shall—
(a)
if it is reasonably practicable to do so; and
(b)
before making the application,
consult the local authority appearing to him to be the authority in whose area the child concerned is ordinarily resident.
(7)
An application made by an authorised person shall not be entertained by the court if, at the time when it is made, the child concerned is—
(a)
the subject of an earlier application for a care order, or supervision order, which has not been disposed of; or
(8)
The local authority designated in a care order must be—
(a)
the authority within whose area the child is ordinarily resident; or
(b)
where the child does not reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order is being made.
(9)
In this section—
“authorised person” means—
(a)
the National Society for the Prevention of Cruelty to Children and any of its officers; and
(b)
any person authorised by order of the Secretary of State to bring proceedings under this section and any officer of a body which is so authorised;
“harm” means ill-treatment or the impairment of health or development F272including, for example, impairment suffered from seeing or hearing the ill-treatment of another;
“development” means physical, intellectual, emotional, social or behavioural development;
“health” means physical or mental health; and
“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.
(10)
Where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.
(11)
In this Act—
“a care order” means (subject to section 105(1)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38; and
“a supervision order” means an order under subsection (1)(b) and (except where express provision to the contrary is made) includes an interim supervision order made under section 38.
F27331A Care orders: care plans
(1)
Where an application is made on which a care order might be made with respect to a child, the appropriate local authority must, within such time as the court may direct, prepare a plan (“a care plan”) for the future care of the child.
(2)
While the application is pending, the authority must keep any care plan prepared by them under review and, if they are of the opinion some change is required, revise the plan, or make a new plan, accordingly.
(3)
A care plan must give any prescribed information and do so in the prescribed manner.
(4)
For the purposes of this section, the appropriate local authority, in relation to a child in respect of whom a care order might be made, is the local authority proposed to be designated in the order.
(5)
In section 31(3A) and this section, references to a care order do not include an interim care order.
(6)
A plan prepared, or treated as prepared, under this section is referred to in this Act as a “section 31A plan”.
32 Period within which application for order under this Part must be disposed of.
(1)
A court hearing an application for an order under this Part shall (in the light of any rules made by virtue of subsection (2))—
(a)
draw up a timetable with a view to disposing of the application without delay; and
(b)
give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to.
(2)
Rules of court may—
(a)
specify periods within which specified steps must be taken in relation to such proceedings; and
(b)
make other provision with respect to such proceedings for the purpose of ensuring, so far as is reasonably practicable, that they are disposed of without delay.
Care orders
33 Effect of care order.
(1)
Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force.
(2)
Where—
(a)
a care order has been made with respect to a child on the application of an authorised person; but
(b)
the local authority designated by the order was not informed that that person proposed to make the application,
the child may be kept in the care of that person until received into the care of the authority.
(3)
While a care order is in force with respect to a child, the local authority designated by the order shall—
(a)
have parental responsibility for the child; and
(b)
have the power (subject to the following provisions of this section) to determine the extent to which F274—
(i)
a parent, guardian or special guardian of the child; or
(ii)
a person who by virtue of section 4A has parental responsibility for the child,
may meet his parental responsibility for him.
(4)
The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.
(5)
Nothing in subsection (3)(b) shall prevent F275a person mentioned in that provision who has care of the child from doing what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting his welfare.
(6)
While a care order is in force with respect to a child, the local authority designated by the order shall not—
(a)
cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made; or
(7)
While a care order is in force with respect to a child, no person may—
(a)
cause the child to be known by a new surname; or
(b)
remove him from the United Kingdom,
without either the written consent of every person who has parental responsibility for the child or the leave of the court.
(8)
Subsection (7)(b) does not—
(a)
prevent the removal of such a child, for a period of less than one month, by the authority in whose care he is; or
(b)
apply to arrangements for such a child to live outside England and Wales (which are governed by paragraph 19 of Schedule 2).
(9)
The power in subsection (3)(b) is subject (in addition to being subject to the provisions of this section) to any right, duty, power, responsibility or authority which F278a person mentioned in that provision has in relation to the child and his property by virtue of any other enactment.
34 Parental contact etc. with children in care.
(1)
Where a child is in the care of a local authority, the authority shall (subject to the provisions of this section) allow the child reasonable contact with—
(a)
his parents;
(b)
any guardian F279or special guardian of his;
F280(ba)
any person who by virtue of section 4A has parental responsibility for him;
(c)
where there was a residence order in force with respect to the child immediately before the care order was made, the person in whose favour the order was made; and
(d)
where, immediately before the care order was made, a person had care of the child by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children, that person.
(2)
On an application made by the authority or the child, the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and any named person.
(3)
On an application made by—
(a)
any person mentioned in paragraphs (a) to (d) of subsection (1); or
(b)
any person who has obtained the leave of the court to make the application,
the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person.
(4)
On an application made by the authority or the child, the court may make an order authorising the authority to refuse to allow contact between the child and any person who is mentioned in paragraphs (a) to (d) of subsection (1) and named in the order.
(5)
When making a care order with respect to a child, or in any family proceedings in connection with a child who is in the care of a local authority, the court may make an order under this section, even though no application for such an order has been made with respect to the child, if it considers that the order should be made.
(6)
An authority may refuse to allow the contact that would otherwise be required by virtue of subsection (1) or an order under this section if—
(a)
they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare; and
(b)
the refusal—
(i)
is decided upon as a matter of urgency; and
(ii)
does not last for more than seven days.
(7)
An order under this section may impose such conditions as the court considers appropriate.
(8)
The Secretary of State may by regulations make provision as to—
(a)
the steps to be taken by a local authority who have exercised their powers under subsection (6);
(b)
the circumstances in which, and conditions subject to which, the terms of any order under this section may be departed from by agreement between the local authority and the person in relation to whom the order is made;
(c)
notification by a local authority of any variation or suspension of arrangements made (otherwise than under an order under this section) with a view to affording any person contact with a child to whom this section applies.
(9)
The court may vary or discharge any order made under this section on the application of the authority, the child concerned or the person named in the order.
(10)
An order under this section may be made either at the same time as the care order itself or later.
(11)
Before making a care order with respect to any child the court shall—
(a)
consider the arrangements which the authority have made, or propose to make, for affording any person contact with a child to whom this section applies; and
(b)
invite the parties to the proceedings to comment on those arrangements.
Supervision orders
35Supervision orders.
(1)
While a supervision order is in force it shall be the duty of the supervisor—
(a)
to advise, assist and befriend the supervised child;
(b)
to take such steps as are reasonably necessary to give effect to the order; and
(c)
where—
(i)
the order is not wholly complied with; or
(ii)
the supervisor considers that the order may no longer be necessary,
to consider whether or not to apply to the court for its variation or discharge.
(2)
Parts I and II of Schedule 3 make further provision with respect to supervision orders.
36 Education supervision orders.
(1)
(2)
In this Act “an education supervision order” means an order under subsection (1).
(3)
A court may only make an education supervision order if it is satisfied that the child concerned is of compulsory school age and is not being properly educated.
(4)
For the purposes of this section, a child is being properly educated only if he is receiving efficient full-time education suitable to his age, ability and aptitude and any special educational needs he may have.
(5)
Where a child is—
(a)
the subject of a school attendance order which is in force under F282section 437 of the Education Act 1996 and which has not been complied with; or
F283(b)
is not attending regularly within the meaning of section 444 of that Act—
(i)
a school at which he is a registered pupil,
(ii)
any place at which education is provided for him in the circumstances mentioned in subsection (1) F284or (1A) of section 444ZA of that Act, or
(iii)
any place which he is required to attend in the circumstances mentioned in subsection F285(1B) or (2) of that section,
then, unless it is proved that he is being properly educated, it shall be assumed that he is not.
(6)
An education supervision order may not be made with respect to a child who is in the care of a local authority.
(7)
The F286local authority designated in an education supervision order must be—
(a)
the authority within whose area the child concerned is living or will live; or
(b)
where—
(i)
the child is a registered pupil at a school; and
(ii)
the authority mentioned in paragraph (a) and the authority within whose area the school is situated agree,
the latter authority.
(8)
(9)
The appropriate local authority is—
(a)
in the case of a child who is being provided with accommodation by, or on behalf of, a local authority, that authority; and
(b)
in any other case, the local authority within whose area the child concerned lives, or will live.
(10)
Part III of Schedule 3 makes further provision with respect to education supervision orders.
Powers of court
37 Powers of court in certain family proceedings.
(1)
Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child’s circumstances.
(2)
Where the court gives a direction under this section the local authority concerned shall, when undertaking the investigation, consider whether they should—
(a)
apply for a care order or for a supervision order with respect to the child;
(b)
provide services or assistance for the child or his family; or
(c)
take any other action with respect to the child.
(3)
Where a local authority undertake an investigation under this section, and decide not to apply for a care order or supervision order with respect to the child concerned, they shall inform the court of—
(a)
their reasons for so deciding;
(b)
any service or assistance which they have provided, or intend to provide, for the child and his family; and
(c)
any other action which they have taken, or propose to take, with respect to the child.
(4)
The information shall be given to the court before the end of the period of eight weeks beginning with the date of the direction, unless the court otherwise directs.
(5)
The local authority named in a direction under subsection (1) must be—
(a)
the authority in whose area the child is ordinarily resident; or
(b)
where the child F290is not ordinarily resident in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the direction is being given.
(6)
If, on the conclusion of any investigation or review under this section, the authority decide not to apply for a care order or supervision order with respect to the child—
(a)
they shall consider whether it would be appropriate to review the case at a later date; and
(b)
if they decide that it would be, they shall determine the date on which that review is to begin.
38 Interim orders.
(1)
Where—
(a)
in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or
(b)
the court gives a direction under section 37(1),
the court may make an interim care order or an interim supervision order with respect to the child concerned.
(2)
A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2).
(3)
Where, in any proceedings on an application for a care order or supervision order, a court makes a residence order with respect to the child concerned, it shall also make an interim supervision order with respect to him unless satisfied that his welfare will be satisfactorily safeguarded without an interim order being made.
(4)
An interim order made under or by virtue of this section shall have effect for such period as may be specified in the order, but shall in any event cease to have effect on whichever of the following events first occurs—
(a)
the expiry of the period of eight weeks beginning with the date on which the order is made;
(b)
if the order is the second or subsequent such order made with respect to the same child in the same proceedings, the expiry of the relevant period;
(c)
in a case which falls within subsection (1)(a), the disposal of the application;
(d)
in a case which falls within subsection (1)(b), the disposal of an application for a care order or supervision order made by the authority with respect to the child;
(e)
in a case which falls within subsection (1)(b) and in which—
(i)
the court has given a direction under section 37(4), but
(ii)
no application for a care order or supervision order has been made with respect to the child,
the expiry of the period fixed by that direction.
(5)
In subsection (4)(b) “the relevant period” means—
(a)
the period of four weeks beginning with the date on which the order in question is made; or
(b)
the period of eight weeks beginning with the date on which the first order was made if that period ends later than the period mentioned in paragraph (a).
(6)
Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment.
(7)
A direction under subsection (6) may be to the effect that there is to be—
(a)
no such examination or assessment; or
(b)
no such examination or assessment unless the court directs otherwise.
(8)
A direction under subsection (6) may be—
(a)
given when the interim order is made or at any time while it is in force; and
(b)
varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection.
(9)
Paragraphs 4 and 5 of Schedule 3 shall not apply in relation to an interim supervision order.
(10)
Where a court makes an order under or by virtue of this section it shall, in determining the period for which the order is to be in force, consider whether any party who was, or might have been, opposed to the making of the order was in a position to argue his case against the order in full.
F29138APower to include exclusion requirement in interim care order.
(1)
Where—
(a)
on being satisfied that there are reasonable grounds for believing that the circumstances with respect to a child are as mentioned in section 31(2)(a) and (b)(i), the court makes an interim care order with respect to a child, and
(b)
the conditions mentioned in subsection (2) are satisfied,
the court may include an exclusion requirement in the interim care order.
(2)
The conditions are—
(a)
that there is reasonable cause to believe that, if a person (“the relevant person”) is excluded from a dwelling-house in which the child lives, the child will cease to suffer, or cease to be likely to suffer, significant harm, and
(b)
that another person living in the dwelling-house (whether a parent of the child or some other person)—
(i)
is able and willing to give to the child the care which it would be reasonable to expect a parent to give him, and
(ii)
consents to the inclusion of the exclusion requirement.
(3)
For the purposes of this section an exclusion requirement is any one or more of the following—
(a)
a provision requiring the relevant person to leave a dwelling-house in which he is living with the child,
(b)
a provision prohibiting the relevant person from entering a dwelling-house in which the child lives, and
(c)
a provision excluding the relevant person from a defined area in which a dwelling-house in which the child lives is situated.
(4)
The court may provide that the exclusion requirement is to have effect for a shorter period than the other provisions of the interim care order.
(5)
Where the court makes an interim care order containing an exclusion requirement, the court may attach a power of arrest to the exclusion requirement.
(6)
Where the court attaches a power of arrest to an exclusion requirement of an interim care order, it may provide that the power of arrest is to have effect for a shorter period than the exclusion requirement.
(7)
Any period specified for the purposes of subsection (4) or (6) may be extended by the court (on one or more occasions) on an application to vary or discharge the interim care order.
(8)
Where a power of arrest is attached to an exclusion requirement of an interim care order by virtue of subsection (5), a constable may arrest without warrant any person whom he has reasonable cause to believe to be in breach of the requirement.
(9)
Sections 47(7), (11) and (12) and 48 of, and Schedule 5 to, the Family Law Act 1996 shall have effect in relation to a person arrested under subsection (8) of this section as they have effect in relation to a person arrested under section 47(6) of that Act.
(10)
If, while an interim care order containing an exclusion requirement is in force, the local authority have removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours, the interim care order shall cease to have effect in so far as it imposes the exclusion requirement.
F29238B Undertakings relating to interim care orders.
(1)
In any case where the court has power to include an exclusion requirement in an interim care order, the court may accept an undertaking from the relevant person.
(2)
No power of arrest may be attached to any undertaking given under subsection (1).
(3)
An undertaking given to a court under subsection (1)—
(a)
shall be enforceable as if it were an order of the court, and
(b)
shall cease to have effect if, while it is in force, the local authority have removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours.
(4)
This section has effect without prejudice to the powers of the High Court and county court apart from this section.
(5)
In this section “exclusion requirement” and “relevant person” have the same meaning as in section 38A.
39 Discharge and variation etc. of care orders and supervision orders.
(1)
A care order may be discharged by the court on the application of—
(a)
any person who has parental responsibility for the child;
(b)
the child himself; or
(c)
the local authority designated by the order.
(2)
A supervision order may be varied or discharged by the court on the application of—
(a)
any person who has parental responsibility for the child;
(b)
the child himself; or
(c)
the supervisor.
(3)
On the application of a person who is not entitled to apply for the order to be discharged, but who is a person with whom the child is living, a supervision order may be varied by the court in so far as it imposes a requirement which affects that person.
F293(3A)
On the application of a person who is not entitled to apply for the order to be discharged, but who is a person to whom an exclusion requirement contained in the order applies, an interim care order may be varied or discharged by the court in so far as it imposes the exclusion requirement.
(3B)
Where a power of arrest has been attached to an exclusion requirement of an interim care order, the court may, on the application of any person entitled to apply for the discharge of the order so far as it imposes the exclusion requirement, vary or discharge the order in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).
(4)
Where a care order is in force with respect to a child the court may, on the application of any person entitled to apply for the order to be discharged, substitute a supervision order for the care order.
(5)
When a court is considering whether to substitute one order for another under subsection (4) any provision of this Act which would otherwise require section 31(2) to be satisfied at the time when the proposed order is substituted or made shall be disregarded.
40 Orders pending appeals in cases about care or supervision orders.
(1)
Where—
(a)
a court dismisses an application for a care order; and
(b)
at the time when the court dismisses the application, the child concerned is the subject of an interim care order,
the court may make a care order with respect to the child to have effect subject to such directions (if any) as the court may see fit to include in the order.
(2)
Where—
(a)
a court dismisses an application for a care order, or an application for a supervision order; and
(b)
at the time when the court dismisses the application, the child concerned is the subject of an interim supervision order,
the court may make a supervision order with respect to the child to have effect subject to such directions (if any) as the court may see fit to include in the order.
(3)
Where a court grants an application to discharge a care order or supervision order, it may order that—
(a)
its decision is not to have effect; or
(b)
the care order, or supervision order, is to continue to have effect but subject to such directions as the court sees fit to include in the order.
(4)
An order made under this section shall only have effect for such period, not exceeding the appeal period, as may be specified in the order.
(5)
Where—
(a)
an appeal is made against any decision of a court under this section; or
(b)
any application is made to the appellate court in connection with a proposed appeal against that decision,
the appellate court may extend the period for which the order in question is to have effect, but not so as to extend it beyond the end of the appeal period.
(6)
In this section “the appeal period” means—
(a)
where an appeal is made against the decision in question, the period between the making of that decision and the determination of the appeal; and
(b)
otherwise, the period during which an appeal may be made against the decision.
Guardians ad litem
41F294Representation of child
(1)
(2)
(a)
be appointed in accordance with rules of court; and
(b)
be under a duty to safeguard the interests of the child in the manner prescribed by such rules.
(3)
Where—
(a)
the child concerned is not represented by a solicitor; and
(b)
any of the conditions mentioned in subsection (4) is satisfied,
the court may appoint a solicitor to represent him.
(4)
The conditions are that—
(a)
(b)
the child has sufficient understanding to instruct a solicitor and wishes to do so;
(c)
it appears to the court that it would be in the child’s best interests for him to be represented by a solicitor.
(5)
Any solicitor appointed under or by virtue of this section shall be appointed, and shall represent the child, in accordance with rules of court.
(6)
In this section “specified proceedings” means any proceedings—
(a)
on an application for a care order or supervision order;
(b)
in which the court has given a direction under section 37(1) and has made, or is considering whether to make, an interim care order;
(c)
on an application for the discharge of a care order or the variation or discharge of a supervision order;
(d)
on an application under section 39(4);
(e)
in which the court is considering whether to make a residence order with respect to a child who is the subject of a care order;
(f)
with respect to contact between a child who is the subject of a care order and any other person;
(g)
under Part V;
(h)
on an appeal against—
(i)
the making of, or refusal to make, a care order, supervision order or any order under section 34;
(ii)
the making of, or refusal to make, a residence order with respect to a child who is the subject of a care order; or
(iii)
the variation or discharge, or refusal of an application to vary or discharge, an order of a kind mentioned in sub-paragraph (i) or (ii);
(iv)
the refusal of an application under section 39(4); or
(v)
the making of, or refusal to make, an order under Part V; or
F298(hh)
on an application for the making or revocation of a placement order (within the meaning of section 21 of the Adoption and Children Act 2002);
(i)
which are specified for the time being, for the purposes of this section, by rules of court.
F299(6A)
The proceedings which may be specified under subsection (6)(i) include (for example) proceedings for the making, varying or discharging of a section 8 order.
F300(7)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F300(8)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F300(9)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(10)
Rules of court may make provision as to—
(a)
(b)
(11)
Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take account of—
(a)
(b)
any evidence given in respect of the matters referred to in the report,
in so far as the statement or evidence is, in the opinion of the court, relevant to the question which the court is considering.
F300(12)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
42F304Right of officer of the Service to have access to local authority records
(1)
Where F305an officer of the ServiceF306or Welsh family proceedings officer has been appointed F307under section 41 he shall have the right at all reasonable times to examine and take copies of—
(a)
F311; or
(c)
any records of, or held by, an authorised person which were compiled in connection with the activities of that person, so far as those records relate to that child.
(2)
Where F312an officer of the ServiceF306or Welsh family proceedings officer takes a copy of any record which he is entitled to examine under this section, that copy or any part of it shall be admissible as evidence of any matter referred to in any—
(a)
report which he makes to the court in the proceedings in question; or
(b)
evidence which he gives in those proceedings.
(3)
Subsection (2) has effect regardless of any enactment or rule of law which would otherwise prevent the record in question being admissible in evidence.
F313(4)
In this section “authorised person” has the same meaning as in section 31.
Part V Protection of Children
43 Child assessment orders.
(1)
On the application of a local authority or authorised person for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—
(a)
the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm;
(b)
an assessment of the state of the child’s health or development, or of the way in which he has been treated, is required to enable the applicant to determine whether or not the child is suffering, or is likely to suffer, significant harm; and
(c)
it is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section.
(2)
In this Act “a child assessment order” means an order under this section.
(3)
A court may treat an application under this section as an application for an emergency protection order.
(4)
No court shall make a child assessment order if it is satisfied—
(a)
that there are grounds for making an emergency protection order with respect to the child; and
(b)
that it ought to make such an order rather than a child assessment order.
(5)
A child assessment order shall—
(a)
specify the date by which the assessment is to begin; and
(b)
have effect for such period, not exceeding 7 days beginning with that date, as may be specified in the order.
(6)
Where a child assessment order is in force with respect to a child it shall be the duty of any person who is in a position to produce the child—
(a)
to produce him to such person as may be named in the order; and
(b)
to comply with such directions relating to the assessment of the child as the court thinks fit to specify in the order.
(7)
A child assessment order authorises any person carrying out the assessment, or any part of the assessment, to do so in accordance with the terms of the order.
(8)
Regardless of subsection (7), if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment.
(9)
The child may only be kept away from home—
(a)
in accordance with directions specified in the order;
(b)
if it is necessary for the purposes of the assessment; and
(c)
for such period or periods as may be specified in the order.
(10)
Where the child is to be kept away from home, the order shall contain such directions as the court thinks fit with regard to the contact that he must be allowed to have with other persons while away from home.
(11)
Any person making an application for a child assessment order shall take such steps as are reasonably practicable to ensure that notice of the application is given to—
(a)
the child’s parents;
(b)
any person who is not a parent of his but who has parental responsibility for him;
(c)
any other person caring for the child;
(d)
any person in whose favour a contact order is in force with respect to the child;
(e)
any person who is allowed to have contact with the child by virtue of an order under section 34; and
(f)
the child,
before the hearing of the application.
(12)
Rules of court may make provision as to the circumstances in which—
(a)
any of the persons mentioned in subsection (11); or
(b)
such other person as may be specified in the rules,
may apply to the court for a child assessment order to be varied or discharged.
(13)
In this section “authorised person” means a person who is an authorised person for the purposes of section 31.
44 Orders for emergency protection of children.
(1)
Where any person (“the applicant”) applies to the court for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—
(a)
there is reasonable cause to believe that the child is likely to suffer significant harm if—
(i)
he is not removed to accommodation provided by or on behalf of the applicant; or
(ii)
he does not remain in the place in which he is then being accommodated;
(b)
in the case of an application made by a local authority—
(i)
enquiries are being made with respect to the child under section 47(1)(b); and
(ii)
those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and that the applicant has reasonable cause to believe that access to the child is required as a matter of urgency; or
(c)
in the case of an application made by an authorised person—
(i)
the applicant has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm;
(ii)
the applicant is making enquiries with respect to the child’s welfare; and
(iii)
those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and the applicant has reasonable cause to believe that access to the child is required as a matter of urgency.
(2)
In this section—
(a)
“authorised person” means a person who is an authorised person for the purposes of section 31; and
(b)
“a person authorised to seek access” means—
(i)
in the case of an application by a local authority, an officer of the local authority or a person authorised by the authority to act on their behalf in connection with the enquiries; or
(ii)
in the case of an application by an authorised person, that person.
(3)
Any person—
(a)
seeking access to a child in connection with enquiries of a kind mentioned in subsection (1); and
(b)
purporting to be a person authorised to do so,
shall, on being asked to do so, produce some duly authenticated document as evidence that he is such a person.
(4)
While an order under this section (“an emergency protection order”) is in force it—
(a)
operates as a direction to any person who is in a position to do so to comply with any request to produce the child to the applicant;
(b)
authorises—
(i)
the removal of the child at any time to accommodation provided by or on behalf of the applicant and his being kept there; or
(ii)
the prevention of the child’s removal from any hospital, or other place, in which he was being accommodated immediately before the making of the order; and
(c)
gives the applicant parental responsibility for the child.
(5)
Where an emergency protection order is in force with respect to a child, the applicant—
(a)
shall only exercise the power given by virtue of subsection (4)(b) in order to safeguard the welfare of the child;
(b)
shall take, and shall only take, such action in meeting his parental responsibility for the child as is reasonably required to safeguard or promote the welfare of the child (having regard in particular to the duration of the order); and
(c)
shall comply with the requirements of any regulations made by the Secretary of State for the purposes of this subsection.
(6)
Where the court makes an emergency protection order, it may give such directions (if any) as it considers appropriate with respect to—
(a)
the contact which is, or is not, to be allowed between the child and any named person;
(b)
the medical or psychiatric examination or other assessment of the child.
(7)
Where any direction is given under subsection (6)(b), the child may, if he is of sufficient understanding to make an informed decision, refuse to submit to the examination or other assessment.
(8)
A direction under subsection (6)(a) may impose conditions and one under subsection (6)(b) may be to the effect that there is to be—
(a)
no such examination or assessment; or
(b)
no such examination or assessment unless the court directs otherwise.
(9)
A direction under subsection (6) may be—
(a)
given when the emergency protection order is made or at any time while it is in force; and
(b)
varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection.
(10)
Where an emergency protection order is in force with respect to a child and—
(a)
the applicant has exercised the power given by subsection (4)(b)(i) but it appears to him that it is safe for the child to be returned; or
(b)
the applicant has exercised the power given by subsection (4)(b)(ii) but it appears to him that it is safe for the child to be allowed to be removed from the place in question,
he shall return the child or (as the case may be) allow him to be removed.
(11)
Where he is required by subsection (10) to return the child the applicant shall—
(a)
return him to the care of the person from whose care he was removed; or
(b)
if that is not reasonably practicable, return him to the care of—
(i)
a parent of his;
(ii)
any person who is not a parent of his but who has parental responsibility for him; or
(iii)
such other person as the applicant (with the agreement of the court) considers appropriate.
(12)
Where the applicant has been required by subsection (10) to return the child, or to allow him to be removed, he may again exercise his powers with respect to the child (at any time while the emergency protection order remains in force) if it appears to him that a change in the circumstances of the case makes it necessary for him to do so.
(13)
Where an emergency protection order has been made with respect to a child, the applicant shall, subject to any direction given under subsection (6), allow the child reasonable contact with—
(a)
his parents;
(b)
any person who is not a parent of his but who has parental responsibility for him;
(c)
any person with whom he was living immediately before the making of the order;
(d)
any person in whose favour a contact order is in force with respect to him;
(e)
any person who is allowed to have contact with the child by virtue of an order under section 34; and
(f)
any person acting on behalf of any of those persons.
(14)
Wherever it is reasonably practicable to do so, an emergency protection order shall name the child; and where it does not name him it shall describe him as clearly as possible.
(15)
A person shall be guilty of an offence if he intentionally obstructs any person exercising the power under subsection (4)(b) to remove, or prevent the removal of, a child.
(16)
A person guilty of an offence under subsection (15) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
F31444APower to include exclusion requirement in emergency protection order.
(1)
Where—
(a)
on being satisfied as mentioned in section 44(1)(a), (b) or (c), the court makes an emergency protection order with respect to a child, and
(b)
the conditions mentioned in subsection (2) are satisfied,
the court may include an exclusion requirement in the emergency protection order.
(2)
The conditions are—
(a)
that there is reasonable cause to believe that, if a person (“the relevant person”) is excluded from a dwelling-house in which the child lives, then—
(i)
in the case of an order made on the ground mentioned in section 44(1)(a), the child will not be likely to suffer significant harm, even though the child is not removed as mentioned in section 44(1)(a)(i) or does not remain as mentioned in section 44(1)(a)(ii), or
(ii)
in the case of an order made on the ground mentioned in paragraph (b) or (c) of section 44(1), the enquiries referred to in that paragraph will cease to be frustrated, and
(b)
that another person living in the dwelling-house (whether a parent of the child or some other person)—
(i)
is able and willing to give to the child the care which it would be reasonable to expect a parent to give him, and
(ii)
consents to the inclusion of the exclusion requirement.
(3)
For the purposes of this section an exclusion requirement is any one or more of the following—
(a)
a provision requiring the relevant person to leave a dwelling-house in which he is living with the child,
(b)
a provision prohibiting the relevant person from entering a dwelling-house in which the child lives, and
(c)
a provision excluding the relevant person from a defined area in which a dwelling-house in which the child lives is situated.
(4)
The court may provide that the exclusion requirement is to have effect for a shorter period than the other provisions of the order.
(5)
Where the court makes an emergency protection order containing an exclusion requirement, the court may attach a power of arrest to the exclusion requirement.
(6)
Where the court attaches a power of arrest to an exclusion requirement of an emergency protection order, it may provide that the power of arrest is to have effect for a shorter period than the exclusion requirement.
(7)
Any period specified for the purposes of subsection (4) or (6) may be extended by the court (on one or more occasions) on an application to vary or discharge the emergency protection order.
(8)
Where a power of arrest is attached to an exclusion requirement of an emergency protection order by virtue of subsection (5), a constable may arrest without warrant any person whom he has reasonable cause to believe to be in breach of the requirement.
(9)
Sections 47(7), (11) and (12) and 48 of, and Schedule 5 to, the Family Law Act 1996 shall have effect in relation to a person arrested under subsection (8) of this section as they have effect in relation to a person arrested under section 47(6) of that Act.
(10)
If, while an emergency protection order containing an exclusion requirement is in force, the applicant has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours, the order shall cease to have effect in so far as it imposes the exclusion requirement.
F31544B Undertakings relating to emergency protection orders.
(1)
In any case where the court has power to include an exclusion requirement in an emergency protection order, the court may accept an undertaking from the relevant person.
(2)
No power of arrest may be attached to any undertaking given under subsection (1).
(3)
An undertaking given to a court under subsection (1)—
(a)
shall be enforceable as if it were an order of the court, and
(b)
shall cease to have effect if, while it is in force, the applicant has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours.
(4)
This section has effect without prejudice to the powers of the High Court and county court apart from this section.
(5)
In this section “exclusion requirement” and “relevant person” have the same meaning as in section 44A.
45 Duration of emergency protection orders and other supplemental provisions.
(1)
An emergency protection order shall have effect for such period, not exceeding eight days, as may be specified in the order.
(2)
Where—
(a)
the court making an emergency protection order would, but for this subsection, specify a period of eight days as the period for which the order is to have effect; but
(b)
the last of those eight days is a public holiday (that is to say, Christmas Day, Good Friday, a bank holiday or a Sunday),
the court may specify a period which ends at noon on the first later day which is not such a holiday.
(3)
Where an emergency protection order is made on an application under section 46(7), the period of eight days mentioned in subsection (1) shall begin with the first day on which the child was taken into police protection under section 46.
(4)
Any person who—
(a)
has parental responsibility for a child as the result of an emergency protection order; and
(b)
is entitled to apply for a care order with respect to the child,
may apply to the court for the period during which the emergency protection order is to have effect to be extended.
(5)
On an application under subsection (4) the court may extend the period during which the order is to have effect by such period, not exceeding seven days, as it thinks fit, but may do so only if it has reasonable cause to believe that the child concerned is likely to suffer significant harm if the order is not extended.
(6)
An emergency protection order may only be extended once.
(7)
Regardless of any enactment or rule of law which would otherwise prevent it from doing so, a court hearing an application for, or with respect to, an emergency protection order may take account of—
(a)
any statement contained in any report made to the court in the course of, or in connection with, the hearing; or
(b)
any evidence given during the hearing,
which is, in the opinion of the court, relevant to the application.
(8)
Any of the following may apply to the court for an emergency protection order to be discharged—
(a)
the child;
(b)
a parent of his;
(c)
any person who is not a parent of his but who has parental responsibility for him; or
(d)
any person with whom he was living immediately before the making of the order.
F316(8A)
On the application of a person who is not entitled to apply for the order to be discharged, but who is a person to whom an exclusion requirement contained in the order applies, an emergency protection order may be varied or discharged by the court in so far as it imposes the exclusion requirement.
(8B)
Where a power of arrest has been attached to an exclusion requirement of an emergency protection order, the court may, on the application of any person entitled to apply for the discharge of the order so far as it imposes the exclusion requirement, vary or discharge the order in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).
(9)
F317. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F318F319(10)
No appeal may be made against—
(a)
the making of, or refusal to make, an emergency protection order;
(b)
the extension of, or refusal to extend, the period during which such an order is to have effect;
(c)
the discharge of, or refusal to discharge, such an order; or
(d)
the giving of, or refusal to give, any direction in connection with such an order.
(11)
Subsection (8) does not apply—
(a)
where the person who would otherwise be entitled to apply for the emergency protection order to be discharged—
(i)
was given notice (in accordance with rules of court) of the hearing at which the order was made; and
(ii)
was present at that hearing; or
(b)
to any emergency protection order the effective period of which has been extended under subsection (5).
(12)
A court making an emergency protection order may direct that the applicant may, in exercising any powers which he has by virtue of the order, be accompanied by a registered medical practitioner, registered nurse or F320registered midwife, if he so chooses.
F318(13)
The reference in subsection (12) to a registered midwife is to such a midwife who is also registered in the Specialist Community Public Health Nurses' Part of the register maintained under article 5 of the Nursing and Midwifery Order 2001.
46 Removal and accommodation of children by police in cases of emergency.
(1)
Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may—
(a)
remove the child to suitable accommodation and keep him there; or
(b)
take such steps as are reasonable to ensure that the child’s removal from any hospital, or other place, in which he is then being accommodated is prevented.
(2)
For the purposes of this Act, a child with respect to whom a constable has exercised his powers under this section is referred to as having been taken into police protection.
(3)
As soon as is reasonably practicable after taking a child into police protection, the constable concerned shall—
(a)
inform the local authority within whose area the child was found of the steps that have been, and are proposed to be, taken with respect to the child under this section and the reasons for taking them;
(b)
give details to the authority within whose area the child is ordinarily resident (“the appropriate authority”) of the place at which the child is being accommodated;
(c)
inform the child (if he appears capable of understanding)—
(i)
of the steps that have been taken with respect to him under this section and of the reasons for taking them; and
(ii)
of the further steps that may be taken with respect to him under this section;
(d)
take such steps as are reasonably practicable to discover the wishes and feelings of the child;
(e)
secure that the case is inquired into by an officer designated for the purposes of this section by the chief officer of the police area concerned; and
(f)
where the child was taken into police protection by being removed to accommodation which is not provided—
(i)
by or on behalf of a local authority; or
(ii)
as a refuge, in compliance with the requirements of section 51,secure that he is moved to accommodation which is so provided.
(4)
As soon as is reasonably practicable after taking a child into police protection, the constable concerned shall take such steps as are reasonably practicable to inform—
(a)
the child’s parents;
(b)
every person who is not a parent of his but who has parental responsibility for him; and
(c)
any other person with whom the child was living immediately before being taken into police protection,
of the steps that he has taken under this section with respect to the child, the reasons for taking them and the further steps that may be taken with respect to him under this section.
(5)
On completing any inquiry under subsection (3)(e), the officer conducting it shall release the child from police protection unless he considers that there is still reasonable cause for believing that the child would be likely to suffer significant harm if released.
(6)
No child may be kept in police protection for more than 72 hours.
(7)
While a child is being kept in police protection, the designated officer may apply on behalf of the appropriate authority for an emergency protection order to be made under section 44 with respect to the child.
(8)
An application may be made under subsection (7) whether or not the authority know of it or agree to its being made.
(9)
While a child is being kept in police protection—
(a)
neither the constable concerned nor the designated officer shall have parental responsibility for him; but
(b)
the designated officer shall do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare (having regard in particular to the length of the period during which the child will be so protected).
(10)
Where a child has been taken into police protection, the designated officer shall allow—
(a)
the child’s parents;
(b)
any person who is not a parent of the child but who has parental responsibility for him;
(c)
any person with whom the child was living immediately before he was taken into police protection;
(d)
any person in whose favour a contact order is in force with respect to the child;
(e)
any person who is allowed to have contact with the child by virtue of an order under section 34; and
(f)
any person acting on behalf of any of those persons,
to have such contact (if any) with the child as, in the opinion of the designated officer, is both reasonable and in the child’s best interests.
(11)
Where a child who has been taken into police protection is in accommodation provided by, or on behalf of, the appropriate authority, subsection (10) shall have effect as if it referred to the authority rather than to the designated officer.
47 Local authority’s duty to investigate.
(1)
Where a local authority—
(a)
are informed that a child who lives, or is found, in their area—
(i)
is the subject of an emergency protection order; or
(ii)
is in police protection; F321. . .
(iii)
F321. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)
have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,
the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare. F322. . .
(2)
Where a local authority have obtained an emergency protection order with respect to a child, they shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide what action they should take to safeguard or promote the child’s welfare.
(3)
The enquiries shall, in particular, be directed towards establishing—
(a)
whether the authority should make any application to the court, or exercise any of their other powers under this Act F323or section 11 of the Crime and Disorder Act 1998 (child safety orders), with respect to the child;
(b)
whether, in the case of a child—
(i)
with respect to whom an emergency protection order has been made; and
(ii)
who is not in accommodation provided by or on behalf of the authority,
it would be in the child’s best interests (while an emergency protection order remains in force) for him to be in such accommodation; and
(c)
whether, in the case of a child who has been taken into police protection, it would be in the child’s best interests for the authority to ask for an application to be made under section 46(7).
(4)
Where enquiries are being made under subsection (1) with respect to a child, the local authority concerned shall (with a view to enabling them to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable—
(a)
to obtain access to him; or
(b)
to ensure that access to him is obtained, on their behalf, by a person authorised by them for the purpose,
unless they are satisfied that they already have sufficient information with respect to him.
(5)
Where, as a result of any such enquiries, it appears to the authority that there are matters connected with the child’s education which should be investigated, they shall consult F324the local authority (as defined in section 579(1) of the Education 1996), if different, specified in subsection (5ZA).
(5ZA)
The local authority referred to in subsection (5) is—
(a)
the local authority who —
(i)
maintain any school at which the child is a pupil, or
(i)
make arrangements for the provision of education for the child otherwise than at school pursuant to section 19 of the Education Act 1996, or
(b)
in a case where the child is a pupil at a school which is not maintained by a local authority, the local authority in whose area the school is situated.
F325(5A)
For the purposes of making a determination under this section as to the action to be taken with respect to a child, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare—
(a)
ascertain the child’s wishes and feelings regarding the action to be taken with respect to him; and
(b)
give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.
(6)
Where, in the course of enquiries made under this section—
(a)
any officer of the local authority concerned; or
(b)
any person authorised by the authority to act on their behalf in connection with those enquiries—
(i)
is refused access to the child concerned; or
(ii)
is denied information as to his whereabouts,
the authority shall apply for an emergency protection order, a child assessment order, a care order or a supervision order with respect to the child unless they are satisfied that his welfare can be satisfactorily safeguarded without their doing so.
(7)
If, on the conclusion of any enquiries or review made under this section, the authority decide not to apply for an emergency protection order, a child assessment order, a care order or a supervision order they shall—
(a)
consider whether it would be appropriate to review the case at a later date; and
(b)
if they decide that it would be, determine the date on which that review is to begin.
(8)
Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child’s welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so).
(9)
Where a local authority are conducting enquiries under this section, it shall be the duty of any person mentioned in subsection (11) to assist them with those enquiries (in particular by providing relevant information and advice) if called upon by the authority to do so.
(10)
Subsection (9) does not oblige any person to assist a local authority where doing so would be unreasonable in all the circumstances of the case.
(11)
The persons are—
(a)
any local authority;
(b)
F326. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)
any local housing authority;
(d)
(e)
any person authorised by the Secretary of State for the purposes of this section.
(12)
Where a local authority are making enquiries under this section with respect to a child who appears to them to be ordinarily resident within the area of another authority, they shall consult that other authority, who may undertake the necessary enquiries in their place.
48 Powers to assist in discovery of children who may be in need of emergency protection.
(1)
Where it appears to a court making an emergency protection order that adequate information as to the child’s whereabouts—
(a)
is not available to the applicant for the order; but
(b)
is available to another person,
it may include in the order a provision requiring that other person to disclose, if asked to do so by the applicant, any information that he may have as to the child’s whereabouts.
(2)
No person shall be excused from complying with such a requirement on the ground that complying might incriminate him or his spouse F331or civil partner of an offence; but a statement or admission made in complying shall not be admissible in evidence against either of them in proceedings for any offence other than perjury.
(3)
An emergency protection order may authorise the applicant to enter premises specified by the order and search for the child with respect to whom the order is made.
(4)
Where the court is satisfied that there is reasonable cause to believe that there may be another child on those premises with respect to whom an emergency protection order ought to be made, it may make an order authorising the applicant to search for that other child on those premises.
(5)
Where—
(a)
an order has been made under subsection (4);
(b)
the child concerned has been found on the premises; and
(c)
the applicant is satisfied that the grounds for making an emergency protection order exist with respect to him,
the order shall have effect as if it were an emergency protection order.
(6)
Where an order has been made under subsection (4), the applicant shall notify the court of its effect.
(7)
A person shall be guilty of an offence if he intentionally obstructs any person exercising the power of entry and search under subsection (3) or (4).
(8)
A person guilty of an offence under subsection (7) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(9)
Where, on an application made by any person for a warrant under this section, it appears to the court—
(a)
that a person attempting to exercise powers under an emergency protection order has been prevented from doing so by being refused entry to the premises concerned or access to the child concerned; or
(b)
that any such person is likely to be so prevented from exercising any such powers,
it may issue a warrant authorising any constable to assist the person mentioned in paragraph (a) or (b) in the exercise of those powers using reasonable force if necessary.
(10)
Every warrant issued under this section shall be addressed to, and executed by, a constable who shall be accompanied by the person applying for the warrant if—
(a)
that person so desires; and
(b)
the court by whom the warrant is issued does not direct otherwise.
(11)
A court granting an application for a warrant under this section may direct that the constable concerned may, in executing the warrant, be accompanied by a registered medical practitioner, registered nurse or F332registered midwife if he so chooses.
F333(11A)
The reference in subsection (11) to a registered midwife is to such a midwife who is also registered in the Specialist Community Public Health Nurses' Part of the register maintained under article 5 of the Nursing and Midwifery Order 2001.
(12)
An application for a warrant under this section shall be made in the manner and form prescribed by rules of court.
(13)
Wherever it is reasonably practicable to do so, an order under subsection (4), an application for a warrant under this section and any such warrant shall name the child; and where it does not name him it shall describe him as clearly as possible.
49 Abduction of children in care etc.
(1)
A person shall be guilty of an offence if, knowingly and without lawful authority or reasonable excuse, he—
(a)
takes a child to whom this section applies away from the responsible person;
(b)
keeps such a child away from the responsible person; or
(c)
induces, assists or incites such a child to run away or stay away from the responsible person.
(2)
This section applies in relation to a child who is—
(a)
in care;
(b)
the subject of an emergency protection order; or
(c)
in police protection,
and in this section “the responsible person” means any person who for the time being has care of him by virtue of the care order, the emergency protection order, or section 46, as the case may be.
(3)
A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding level 5 on the standard scale, or to both.
50 Recovery of abducted children etc.
(1)
Where it appears to the court that there is reason to believe that a child to whom this section applies—
(a)
has been unlawfully taken away or is being unlawfully kept away from the responsible person;
(b)
has run away or is staying away from the responsible person; or
(c)
is missing,
the court may make an order under this section (“a recovery order”).
(2)
This section applies to the same children to whom section 49 applies and in this section “the responsible person” has the same meaning as in section 49.
(3)
A recovery order—
(a)
operates as a direction to any person who is in a position to do so to produce the child on request to any authorised person;
(b)
authorises the removal of the child by any authorised person;
(c)
requires any person who has information as to the child’s whereabouts to disclose that information, if asked to do so, to a constable or an officer of the court;
(d)
authorises a constable to enter any premises specified in the order and search for the child using reasonable force if necessary.
(4)
The court may make a recovery order only on the application of—
(a)
any person who has parental responsibility for the child by virtue of a care order or emergency protection order; or
(b)
where the child is in police protection, the designated officer.
(5)
A recovery order shall name the child and—
(a)
any person who has parental responsibility for the child by virtue of a care order or emergency protection order; or
(b)
where the child is in police protection, the designated officer.
(6)
Premises may only be specified under subsection (3)(d) if it appears to the court that there are reasonable grounds for believing the child to be on them.
(7)
In this section—
“an authorised person” means—
(a)
any person specified by the court;
(b)
any constable;
(c)
any person who is authorised—
(i)
after the recovery order is made; and
(ii)
by a person who has parental responsibility for the child by virtue of a care order or an emergency protection order,
to exercise any power under a recovery order; and
“the designated officer” means the officer designated for the purposes of section 46.
(8)
Where a person is authorised as mentioned in subsection (7)(c)—
(a)
the authorisation shall identify the recovery order; and
(b)
any person claiming to be so authorised shall, if asked to do so, produce some duly authenticated document showing that he is so authorised.
(9)
A person shall be guilty of an offence if he intentionally obstructs an authorised person exercising the power under subsection (3)(b) to remove a child.
(10)
A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(11)
No person shall be excused from complying with any request made under subsection (3)(c) on the ground that complying with it might incriminate him or his spouse F334or civil partner of an offence; but a statement or admission made in complying shall not be admissible in evidence against either of them in proceedings for an offence other than perjury.
(12)
Where a child is made the subject of a recovery order whilst being looked after by a local authority, any reasonable expenses incurred by an authorised person in giving effect to the order shall be recoverable from the authority.
(13)
A recovery order shall have effect in Scotland as if it had been made by the Court of Session and as if that court had had jurisdiction to make it.
(14)
In this section “the court”, in relation to Northern Ireland, means a magistrates’ court within the meaning of the M17Magistrates’ Courts (Northern Ireland) Order 1981.
51 Refuges for children at risk.
(1)
Where it is proposed to use a voluntary home or F335private children’s home to provide a refuge for children who appear to be at risk of harm, the Secretary of State may issue a certificate under this section with respect to that home.
(2)
Where a local authority or voluntary organisation arrange for a foster parent to provide such a refuge, the Secretary of State may issue a certificate under this section with respect to that foster parent.
(3)
In subsection (2) “foster parent” means a person who is, or who from time to time is, a local authority foster parent or a foster parent with whom children are placed by a voluntary organisation.
(4)
The Secretary of State may by regulations—
(a)
make provision as to the manner in which certificates may be issued;
(b)
impose requirements which must be complied with while any certificate is in force; and
(c)
provide for the withdrawal of certificates in prescribed circumstances.
(5)
Where a certificate is in force with respect to a home, none of the provisions mentioned in subsection (7) shall apply in relation to any person providing a refuge for any child in that home.
(6)
Where a certificate is in force with respect to a foster parent, none of those provisions shall apply in relation to the provision by him of a refuge for any child in accordance with arrangements made by the local authority or voluntary organisation.
(7)
The provisions are—
(a)
section 49;
F336(b)
sections 82 (recovery of certain fugitive children) and 83 (harbouring) of the Children (Scotland) Act 1995, so far as they apply in relation to anything done in England and Wales;
(c)
section 32(3) of the M18Children and Young Persons Act 1969 (compelling, persuading, inciting or assisting any person to be absent from detention, etc.), so far as it applies in relation to anything done in England and Wales;
(d)
section 2 of the M19Child Abduction Act 1984.
52 Rules and regulations.
(1)
Without prejudice to section 93 or any other power to make such rules, rules of court may be made with respect to the procedure to be followed in connection with proceedings under this Part.
(2)
The rules may, in particular make provision—
(a)
as to the form in which any application is to be made or direction is to be given;
(b)
prescribing the persons who are to be notified of—
(i)
the making, or extension, of an emergency protection order; or
(ii)
the making of an application under section 45(4) or (8) or 46(7); and
(c)
as to the content of any such notification and the manner in which, and person by whom, it is to be given.
(3)
The Secretary of State may by regulations provide that, where—
(a)
an emergency protection order has been made with respect to a child;
(b)
the applicant for the order was not the local authority within whose area the child is ordinarily resident; and
(c)
that local authority are of the opinion that it would be in the child’s best interests for the applicant’s responsibilities under the order to be transferred to them,
that authority shall (subject to their having complied with any requirements imposed by the regulations) be treated, for the purposes of this Act, as though they and not the original applicant had applied for, and been granted, the order.
(4)
Regulations made under subsection (3) may, in particular, make provision as to—
(a)
the considerations to which the local authority shall have regard in forming an opinion as mentioned in subsection (3)(c); and
(b)
the time at which responsibility under any emergency protection order is to be treated as having been transferred to a local authority.
Part VI Community Homes
53 Provision of community homes by local authorities.
(1)
Every local authority shall make such arrangements as they consider appropriate for securing that homes (“community homes”) are available—
(a)
for the care and accommodation of children looked after by them; and
(b)
for purposes connected with the welfare of children (whether or not looked after by them),
and may do so jointly with one or more other local authorities.
(2)
In making such arrangements, a local authority shall have regard to the need for ensuring the availability of accommodation—
(a)
of different descriptions; and
(b)
which is suitable for different purposes and the requirements of different descriptions of children.
(3)
A community home may be a home—
(a)
provided, F337equipped, maintained and (subject to subsection (3A)) managed by a local authority; or
(b)
provided by a voluntary organisation but in respect of which a local authority and the organisation—
(i)
propose that, in accordance with an instrument of management, the F338equipment, maintenance and (subject to subsection (3B)) management of the home shall be the responsibility of the local authority; or
(ii)
so propose that the management, equipment and maintenance of the home shall be the responsibility of the voluntary organisation.
F339(3A)
A local authority may make arrangements for the management by another person of accommodation provided by the local authority for the purpose of restricting the liberty of children.
(3B)
Where a local authority are to be responsible for the management of a community home provided by a voluntary organisation, the local authority may, with the consent of the body of managers constituted by the instrument of management for the home, make arrangements for the management by another person of accommodation provided for the purpose of restricting the liberty of children.
(4)
Where a local authority are to be responsible for the management of a community home provided by a voluntary organisation, the authority shall designate the home as a controlled community home.
(5)
Where a voluntary organisation are to be responsible for the management of a community home provided by the organisation, the local authority shall designate the home as an assisted community home.
(6)
Schedule 4 shall have effect for the purpose of supplementing the provisions of this Part.
F34054. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
55 Determination of disputes relating to controlled and assisted community homes.
(1)
Where any dispute relating to a controlled community home arises between the local authority specified in the home’s instrument of management and—
(a)
the voluntary organisation by which the home is provided; or
(b)
any other local authority who have placed, or desire or are required to place, in the home a child who is looked after by them,
the dispute may be referred by either party to the Secretary of State for his determination.
(2)
Where any dispute relating to an assisted community home arises between the voluntary organisation by which the home is provided and any local authority who have placed, or desire to place, in the home a child who is looked after by them, the dispute may be referred by either party to the Secretary of State for his determination.
(3)
Where a dispute is referred to the Secretary of State under this section he may, in order to give effect to his determination of the dispute, give such directions as he thinks fit to the local authority or voluntary organisation concerned.
(4)
This section applies even though the matter in dispute may be one which, under or by virtue of Part II of Schedule 4, is reserved for the decision, or is the responsibility, of—
(a)
the local authority specified in the home’s instrument of management; or
(b)
(as the case may be) the voluntary organisation by which the home is provided.
(5)
Where any trust deed relating to a controlled or assisted community home contains provision whereby a bishop or any other ecclesiastical or denominational authority has power to decide questions relating to religious instruction given in the home, no dispute which is capable of being dealt with in accordance with that provision shall be referred to the Secretary of State under this section.
(6)
In this Part “trust deed”, in relation to a voluntary home, means any instrument (other than an instrument of management) regulating—
(a)
the maintenance, management or conduct of the home; or
(b)
the constitution of a body of managers or trustees of the home.
56 Discontinuance by voluntary organisation of controlled or assisted community home.
(1)
The voluntary organisation by which a controlled or assisted community home is provided shall not cease to provide the home except after giving to the Secretary of State and the local authority specified in the home’s instrument of management not less than two years’ notice in writing of their intention to do so.
(2)
A notice under subsection (1) shall specify the date from which the voluntary organisation intend to cease to provide the home as a community home.
(3)
Where such a notice is given and is not withdrawn before the date specified in it, the home’s instrument of management shall cease to have effect on that date and the home shall then cease to be a controlled or assisted community home.
(4)
Where a notice is given under subsection (1) and the home’s managers give notice in writing to the Secretary of State that they are unable or unwilling to continue as its managers until the date specified in the subsection (1) notice, the Secretary of State may by order—
(a)
revoke the home’s instrument of management; and
(b)
require the local authority who were specified in that instrument to conduct the home until—
(i)
the date specified in the subsection (1) notice; or
(ii)
such earlier date (if any) as may be specified for the purposes of this paragraph in the order,
as if it were a community home provided by the local authority.
(5)
Where the Secretary of State imposes a requirement under subsection (4)(b)—
(a)
nothing in the trust deed for the home shall affect the conduct of the home by the local authority;
(b)
the Secretary of State may by order direct that for the purposes of any provision specified in the direction and made by or under any enactment relating to community homes (other than this section) the home shall, until the date or earlier date specified as mentioned in subsection (4)(b), be treated as a controlled or assisted community home;
(c)
except in so far as the Secretary of State so directs, the home shall until that date be treated for the purposes of any such enactment as a community home provided by the local authority; and
(d)
on the date or earlier date specified as mentioned in subsection (4)(b) the home shall cease to be a community home.
57 Closure by local authority of controlled or assisted community home.
(1)
The local authority specified in the instrument of management for a controlled or assisted community home may give—
(a)
the Secretary of State; and
(b)
the voluntary organisation by which the home is provided,
not less than two years’ notice in writing of their intention to withdraw their designation of the home as a controlled or assisted community home.
(2)
A notice under subsection (1) shall specify the date (“the specified date”) on which the designation is to be withdrawn.
(3)
Where—
(a)
a notice is given under subsection (1) in respect of a controlled or assisted community home;
(b)
the home’s managers give notice in writing to the Secretary of State that they are unable or unwilling to continue as managers until the specified date; and
(c)
the managers’ notice is not withdrawn,
the Secretary of State may by order revoke the home’s instrument of management from such date earlier than the specified date as may be specified in the order.
(4)
Before making an order under subsection (3), the Secretary of State shall consult the local authority and the voluntary organisation.
(5)
Where a notice has been given under subsection (1) and is not withdrawn, the home’s instrument of management shall cease to have effect on—
(a)
the specified date; or
(b)
where an earlier date has been specified under subsection (3), that earlier date,
and the home shall then cease to be a community home.
58 Financial provisions applicable on cessation of controlled or assisted community home or disposal etc. of premises.
(1)
Where—
(a)
the instrument of management for a controlled or assisted community home is revoked or otherwise ceases to have effect under section F341. . . , 56(3) or (4)(a) or 57(3) or (5); or
(b)
any premises used for the purposes of such a home are (at any time after 13th January 1987) disposed of, or put to use otherwise than for those purposes,
the proprietor shall become liable to pay compensation (“the appropriate compensation”) in accordance with this section.
(2)
Where the instrument of management in force at the relevant time relates—
(a)
to a controlled community home; or
(b)
to an assisted community home which, at any time before the instrument came into force, was a controlled community home,
the appropriate compensation is a sum equal to that part of the value of any premises which is attributable to expenditure incurred in relation to the premises, while the home was a controlled community home, by the authority who were then the responsible authority.
(3)
Where the instrument of management in force at the relevant time relates—
(a)
to an assisted community home; or
(b)
to a controlled community home which, at any time before the instrument came into force, was an assisted community home,
the appropriate compensation is a sum equal to that part of the value of the premises which is attributable to the expenditure of money provided by way of grant under section 82, section 65 of the M20Children and Young Persons Act 1969 or section 82 of the M21Child Care Act 1980.
(4)
Where the home is, at the relevant time, conducted in premises which formerly were used as an approved school or were an approved probation hostel or home, the appropriate compensation is a sum equal to that part of the value of the premises which is attributable to the expenditure—
(a)
of sums paid towards the expenses of the managers of an approved school under section 104 of the M22Children and Young Persons Act 1933; F342. . .
(b)
F344(c)
of sums paid under section 3, 5 or 9 of the Criminal Justice and Court Services Act 2000 in relation to expenditure on approved premises (within the meaning of Part I of that Act).
(5)
The appropriate compensation shall be paid—
(a)
in the case of compensation payable under subsection (2), to the authority who were the responsible authority at the relevant time; and
(b)
in any other case, to the Secretary of State.
(6)
In this section—
“disposal” includes the grant of a tenancy and any other conveyance, assignment, transfer, grant, variation or extinguishment of an interest in or right over land, whether made by instrument or otherwise;
“premises” means any premises or part of premises (including land) used for the purposes of the home and belonging to the proprietor;
“the proprietor” means—
(a)
the voluntary organisation by which the home is, at the relevant time, provided; or
(b)
if the premises are not, at the relevant time, vested in that organisation, the persons in whom they are vested;
“the relevant time” means the time immediately before the liability to pay arises under subsection (1); and
“the responsible authority” means the local authority specified in the instrument of management in question.
(7)
For the purposes of this section an event of a kind mentioned in subsection (1)(b) shall be taken to have occurred—
(a)
in the case of a disposal, on the date on which the disposal was completed or, in the case of a disposal which is effected by a series of transactions, the date on which the last of those transactions was completed;
(b)
in the case of premises which are put to different use, on the date on which they first begin to be put to their new use.
(8)
The amount of any sum payable under this section shall be determined in accordance with such arrangements—
(a)
as may be agreed between the voluntary organisation by which the home is, at the relevant time, provided and the responsible authority or (as the case may be) the Secretary of State; or
(b)
in default of agreement, as may be determined by the Secretary of State.
(9)
With the agreement of the responsible authority or (as the case may be) the Secretary of State, the liability to pay any sum under this section may be discharged, in whole or in part, by the transfer of any premises.
(10)
This section has effect regardless of—
(a)
anything in any trust deed for a controlled or assisted community home;
(b)
the provisions of any enactment or instrument governing the disposition of the property of a voluntary organisation.
Part VII Voluntary Homes and Voluntary Organisations
59` Provision of accommodation by voluntary organisations.
(1)
Where a voluntary organisation provide accommodation for a child, they shall do so by—
(a)
placing him (subject to subsection (2)) with —
(i)
a family;
(ii)
a relative of his; or
(iii)
any other suitable person,
on such terms as to payment by the organisation and otherwise as the organisation may determine F345(subject to section 49 of the Children Act 2004);
F346(aa)
maintaining him in F347“a children's home in respect of which a person is registered under Part 2 of the Care Standards Act 2000 ;
(f)
making such other arrangements (subject to subsection (3)) as seem appropriate to them.
F348(1A)
(2)
The F352appropriate national authority may make regulations as to the placing of children with foster parents by voluntary organisations F353and the regulations may, in particular, make provision which (with any necessary modifications) is similar to the provision that may be made under section 23(2)(a) .
(3)
F355(3A)
Regulations under subsection (2) or (3) may in particular make provision which (with any necessary modifications) is similar to that which may be made under section 22C by virtue of any of paragraphs 12B, 12E and 12F of Schedule 2.
(4)
The F356appropriate national authority may make regulations requiring any voluntary organisation who are providing accommodation for a child—
(a)
to review his case; and
(b)
to consider any representations (including any complaint) made to them by any person falling within a prescribed class of person,
in accordance with the provisions of the regulations.
F357(5A)
Regulations under subsection (4) may, in particular—
(a)
apply with modifications any provision of section 25A or 25B;
(b)
make provision which (with any necessary modifications) is similar to any provision which may be made under section 25A, 25B or 26.
(6)
Regulations under subsections (2) to (4) may provide that any person who, without reasonable excuse, contravenes or fails to comply with a regulation shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
F358(7)
In this Part “appropriate national authority” means—
(a)
in relation to England, the Secretary of State; and
(b)
in relation to Wales, the Welsh Ministers.
60F359Voluntary homes.
F360(1)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F360(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F361(3)
In this Act “voluntary home” means a children’s home which is carried on by a voluntary organisation but does not include a community home.
(4)
Schedule 5 shall have effect for the purpose of supplementing the provisions of this Part.
61 Duties of voluntary organisations.
(1)
Where a child is accommodated by or on behalf of a voluntary organisation, it shall be the duty of the organisation—
(a)
to safeguard and promote his welfare;
(b)
to make such use of the services and facilities available for children cared for by their own parents as appears to the organisation reasonable in his case; and
(c)
to advise, assist and befriend him with a view to promoting his welfare when he ceases to be so accommodated.
(2)
Before making any decision with respect to any such child the organisation shall, so far as is reasonably practicable, ascertain the wishes and feelings of—
(a)
the child;
(b)
his parents;
(c)
any person who is not a parent of his but who has parental responsibility for him; and
(d)
any other person whose wishes and feelings the organisation consider to be relevant,
regarding the matter to be decided.
(3)
In making any such decision the organisation shall give due consideration—
(a)
having regard to the child’s age and understanding, to such wishes and feelings of his as they have been able to ascertain;
(b)
to such other wishes and feelings mentioned in subsection (2) as they have been able to ascertain; and
(c)
to the child’s religious persuasion, racial origin and cultural and linguistic background.
62 Duties of local authorities.
(1)
Every local authority shall satisfy themselves that any voluntary organisation providing accommodation—
(a)
within the authority’s area for any child; or
(b)
outside that area for any child on behalf of the authority,
are satisfactorily safeguarding and promoting the welfare of the children so provided with accommodation.
(2)
Every local authority shall arrange for children who are accommodated within their area by or on behalf of voluntary organisations to be visited, from time to time, in the interests of their welfare.
(3)
The F362appropriate national authority may make regulations—
(a)
requiring every child who is accommodated within a local authority’s area, by or on behalf of a voluntary organisation, to be visited by an officer of the authority—
(i)
in prescribed circumstances; and
(ii)
on specified occasions or within specified periods; and
(b)
imposing requirements which must be met by any local authority, or officer of a local authority, carrying out functions under this section.
(4)
Subsection (2) does not apply in relation to community homes.
(5)
Where a local authority are not satisfied that the welfare of any child who is accommodated by or on behalf of a voluntary organisation is being satisfactorily safeguarded or promoted they shall—
(a)
unless they consider that it would not be in the best interests of the child, take such steps as are reasonably practicable to secure that the care and accommodation of the child is undertaken by—
(i)
a parent of his;
(ii)
any person who is not a parent of his but who has parental responsibility for him; or
(iii)
a relative of his; and
(b)
consider the extent to which (if at all) they should exercise any of their functions with respect to the child.
(6)
Any person authorised by a local authority may, for the purpose of enabling the authority to discharge their duties under this section—
(a)
enter, at any reasonable time, and inspect any premises in which children are being accommodated as mentioned in subsection (1) or (2);
(b)
inspect any children there;
(c)
require any person to furnish him with such records of a kind required to be kept by regulations made under F363section 22 of the Care Standards Act 2000F364or section 20 of the Health and Social Care Act 2008 (in whatever form they are held), or allow him to inspect such records, as he may at any time direct.
(7)
Any person exercising the power conferred by subsection (6) shall, if asked to do so, produce some duly authenticated document showing his authority to do so.
(8)
Any person authorised to exercise the power to inspect records conferred by subsection (6)—
(a)
shall be entitled at any reasonable time to have access to, and inspect and check the operation of, any computer and any associated apparatus or material which is or has been in use in connection with the records in question; and
(b)
may require—
(i)
the person by whom or on whose behalf the computer is or has been so used; or
(ii)
any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material,
to afford him such assistance as he may reasonably require.
(9)
Any person who intentionally obstructs another in the exercise of any power conferred by subsection (6) or (8) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
F365(10)
This section does not apply in relation to any voluntary organisation which is an institution within the further education sector, as defined in section 91 of the M24Further and Higher Education Act 1992, or a school.
Part VIII Registered Children’s Homes
63F366 Private children’s homes etc.
F367(1)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F367(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F367(3)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F367(4)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F367(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F367(6)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F367(7)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F367(8)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F367(9)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F367(10)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(11)
Schedule 6 shall have effect with respect to F368private children’s homes.
(12)
Schedule 7 shall have effect for the purpose of setting out the circumstances in which a person may foster more than three children without being treated F369, for the purposes of this Act and the Care Standards Act 2000, as carrying on a children’s home.
64 Welfare of children in children’s homes.
(1)
Where a child is accommodated in a F370private children’s home, it shall be the duty of the person carrying on the home to—
(a)
safeguard and promote the child’s welfare;
(b)
make such use of the services and facilities available for children cared for by their own parents as appears to that person reasonable in the case of the child; and
(c)
advise, assist and befriend him with a view to promoting his welfare when he ceases to be so accommodated.
(2)
Before making any decision with respect to any such child the person carrying on the home shall, so far as is reasonably practicable, ascertain the wishes and feelings of—
(a)
the child;
(b)
his parents;
(c)
any other person who is not a parent of his but who has parental responsibility for him; and
(d)
any person whose wishes and feelings the person carrying on the home considers to be relevant,
regarding the matter to be decided.
(3)
In making any such decision the person concerned shall give due consideration—
(a)
having regard to the child’s age and understanding, to such wishes and feelings of his as he has been able to ascertain;
(b)
to such other wishes and feelings mentioned in subsection (2) as he has been able to ascertain; and
(c)
to the child’s religious persuasion, racial origin and cultural and linguistic background.
(4)
Section 62, except subsection (4), shall apply in relation to any person who is carrying on a F370private children’s home as it applies in relation to any voluntary organisation.
652 Persons disqualified from carrying on, or being employed in children’s homes.
(1)
A person who is disqualified (under section 68) from fostering a child privately shall not carry on, or be otherwise concerned in the management of, or have any financial interest in a children’s home unless he has—
(a)
disclosed to F371the appropriate authority the fact that he is so disqualified; and
(b)
obtained F371its written consent.
(2)
No person shall employ a person who is so disqualified in a children’s home unless he has—
(a)
disclosed to F371the appropriate authority the fact that that person is so disqualified; and
(b)
obtained F371its written consent.
(3)
Where F372the appropriate authority refuses to give its consent under this section, it shall inform the applicant by a written notice which states—
(a)
the reason for the refusal;
F373(b)
the applicant’s right to appeal under section 65A against the refusal to the F374First-tier Tribunal
(c)
the time within which he may do so.
(4)
Any person who contravenes subsection (1) or (2) shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.
(5)
Where a person contravenes subsection (2) he shall not be guilty of an offence if he proves that he did not know, and had no reasonable grounds for believing, that the person whom he was employing was disqualified under section 68.
F375(6)
In this section and section 65A “appropriate authority” means—
(a)
in relation to England, the F376Her Majesty's Chief Inspector of Education, Children's Services and Skills ; and
(b)
in relation to Wales, the National Assembly for Wales.
F37765A Appeal against refusal of authority to give consent under section 65.
(1)
An appeal against a decision of an appropriate authority under section 65 shall lie to the F378First-tier Tribunal .
(2)
On an appeal the Tribunal may confirm the authority’s decision or direct it to give the consent in question.
PART IX PRIVATE ARRANGEMENTS FOR FOSTERING CHILDREN
66 Privately fostered children.
(1)
In this Part—
(a)
“a privately fostered child” means a child who is under the age of sixteen and who is cared for, and provided with accommodation F379in their own home by, someone other than—
(i)
a parent of his;
(ii)
a person who is not a parent of his but who has parental responsibility for him; or
(iii)
a relative of his; and
(b)
“to foster a child privately” means to look after the child in circumstances in which he is a privately fostered child as defined by this section.
(2)
A child is not privately fostered child if the person caring for and accommodating him—
(a)
has done so for a period a period of less than 28 days; and
(b)
does not intend to do so for any longer period.
(3)
Subsection (1) is subject to —
(a)
the provisions of section 63; and
(b)
the exceptions made by paragraph 1 to 5 of Schedule 8.
(4)
In the case of a child who is disabled, subsection (1)(a) shall have effect as if for “sixteen”there were substituted “eighteen”.
F380(4A)
The Secretary of State may by regulations make provision as to the circumstances in which a person who provides accommodation to a child is, or is not, to be treated as providing him with accommodation in the person’s own home.
(5)
Schedule 8 shall have effect for the purposes of supplementing the provision made by this Part.
67 Welfare of privately fostered children.
(1)
It shall be the duty of every local authority to satisfy themselves that the welfare of children who are F381or are proposed to be privately fostered within their area is being F382or will be satisfactorily safeguarded and promoted and to secure that such advice is given to those F383concerned with them as appears to the authority to be needed.
(2)
The Secretary of State may make regulations—
(a)
requiring every child who is privately fostered within a local authority’s area to be visited by an officer of the authority—
(i)
in prescribed circumstances; and
(ii)
on specified occasions or within specified periods; and
(b)
imposing requirements which are to be met by any local authority, or officer of a local authority, in carrying out functions under this section.
F384(2A)
Regulations under subsection (2)(b) may impose requirements as to the action to be taken by a local authority for the purposes of discharging their duty under subsection (1) where they have received notification of a proposal that a child be privately fostered.
(3)
Where any person who is authorised by a local authority to visit F385for the purpose has reasonable cause to believe that—
(a)
any privately fostered child is being accommodated in premises within the authority’s area; or
(b)
it is proposed to accommodate any such child in any such premises,
he may at any reasonable time inspect those premises and any children there.
(4)
Any person exercising the power under subsection (3) shall, if so required, produce some duly authenticated document showing his authority to do so.
(5)
Where a local authority are not satisfied that the welfare of any child who is F386or is proposed to be privately fostered within their area is being F387or will be satisfactorily safeguarded or promoted they shall—
(a)
unless they consider that it would not be in the best interests of the child, take such steps as are reasonably practicable to secure that the care and accommodation of the child is undertaken by—
(i)
a parent of his;
(ii)
any person who is not a parent of his but who has
parental responsibility for him; or
(iii)
a relative of his; and
(b)
consider the extent to which (if at all) they should exercise any of their functions under this Act with respect to the child.
F388(6)
The Secretary of State may make regulations requiring a local authority to monitor the way in which the authority discharge their functions under this Part (and the regulations may in particular require the authority to appoint an officer for that purpose).
68 Persons disqualified from being private foster parents.
(1)
Unless he has disclosed the fact to the appropriate local authority and obtained their written consent, a person shall not foster a child privately if he is disqualified from doing so by regulations made by the Secretary of State for the purposes of this section.
(2)
The regulations may, in particular, provide for a person to be so disqualified where—
(a)
an order of a kind specified in the regulations has been made at any time with respect to him;
(b)
an order of a kind so specified has been made at any time with respect to any child who has been in his care;
(c)
a requirement of a kind so specified has been imposed at any time with respect to any such child, under or by virtue of any enactment;
(d)
he has been convicted of any offence of a kind so specified, orF389. . . discharged absolutely or conditionally for any such offence;
(e)
a prohibition has been imposed on him at any time under section 69 or under any other specified enactment;
(f)
his rights and powers with respect to a child have at any time been vested in a specified authority under a specified enactment.
F390(2A)
A conviction in respect of which a probation order was made before 1st October 1992 (which would not otherwise be treated as a conviction) is to be treated as a conviction for the purposes of subsection (2)(d).
(3)
Unless he has disclosed the fact to the appropriate local authority and obtained their written consent, a person shall not foster a child privately if—
(a)
he lives in the same household as a person who is himself prevented from fostering a child by subsection (1); or
(b)
he lives in a household at which any such person is employed.
F391(3A)
A person shall not foster a child privately if—
(a)
he is barred from regulated activity relating to children (within the meaning of section 3(2) of the Safeguarding Vulnerable Groups Act 2006); or
(b)
he lives in the same household as a person who is barred from such activity.
(4)
Where an authority refuse to give their consent under this section, they shall inform the applicant by a written notice which states—
(a)
the reason for the refusal;
(b)
the applicant’s right under paragraph 8 of Schedule 8 to appeal against the refusal; and
(c)
the time within which he may do so.
(5)
In this section—
“the appropriate authority” means the local authority within whose area it is proposed to foster the child in question; and
“enactment” means any enactment having effect, at any time, in any part of the United Kingdom.
69 Power to prohibit private fostering.
(1)
This section applies where a person—
(a)
proposes to foster a child privately; or
(b)
is fostering a child privately.
(2)
Where the local authority for the area within which the child is proposed to be, or is being, fostered are of the opinion that—
(a)
he is not a suitable person to foster a child;
(b)
the premises in which the child will be, or is being, accommodated are not suitable; or
(c)
it would be prejudicial to the welfare of the child for him to be, or continue to be accommodated by that person in those premises,
the authority may impose a prohibition on him under subsection (3).
(3)
A prohibition imposed on any person under this subsection may prohibit him from fostering privately—
(a)
any child in any premises within the area of the local authority; or
(b)
any child in premises specified in the prohibition.
(c)
a child identified in the prohibition, in premises specified in the prohibition.
(4)
A local authority who have imposed a prohibition on any person under subsection (3) may, if they think fit, cancel the prohibition—
(a)
of their own motion; or
(b)
on an application made by that person,
if they are satisfied that the prohibition is no longer justified.
(5)
Where a local authority impose a requirement on any person under paragraph 6 of Schedule 8, they may also impose a prohibition on him under subsection (3).
(6)
Any prohibition imposed by virtue of subsection (5) shall not have effect unless—
(a)
the time specified for compliance with the requirement has expired; and
(b)
the requirement has not been compiled with.
(7)
A prohibition imposed under this section shall be imposed by notice in writing addressed to the person on whom it is imposed and informing him of—
(a)
the reason for imposing the prohibition;
(b)
his right under paragraph 8 of Schedule 8 to appeal against the prohibition; and
(c)
the time within which he may do so.
70 Offences.
(1)
A person shall be guilty of an offence if—
(a)
being required, under any provision made by or under this Part, to give any notice or information—
(i)
he fails without reasonable excuse to give the notice within the time specified in that provision; or
(ii)
he fails without reasonable excuse to give the information within a reasonable time; or
(iii)
he makes, or causes or procures another person to make, any statement in the notice or information which he knows to be false or misleading in a material particular;
(b)
he refuses to allow a privately fostered child to be visited by a duly authorised officer of a local authority;
(c)
he intentionally obstructs another in the exercise of the power conferred by section 67(3);
(d)
he contravenes section 68;
(e)
he fails without reasonable excuse to comply with any requirement imposed by a local authority under this Part;
(f)
he accommodates a privately fostered child in any premises in contravention of a prohibition imposed by a local authority under this Part;
(g)
he knowingly causes to be published, or publishes, an advertisement which he knows contravenes paragraph 10 of Schedule 8.
(2)
Where a person contravenes section 68(3), he shall not be guilty of an offence under this section if he proves that he did not know, and had no reasonable ground for believing, that any person to whom section 68(1) applied was living or employed in the premises in question.
(3)
A person guilty of an offence under subsection (1)(a) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(4)
A person guilty of an offence under subsection (1)(b), (c) or (g) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(5)
A person guilty of an offence under subsection (1)(d) or (f) shall be liable on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding level 5 on the standard scale, or to both.
(6)
A person guilty of an offence under subsection (1)(e) shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(7)
If any person who is required, under any provision of this Part, to give a notice fails to give the notice within the time specified in that provision, proceedings for the offence may be brought at any time within six months from the date when evidence of the offence came to the knowledge of the local authority.
(8)
Subsection (7) is not affected by anything in section 127(1) of the M25Magistrates’ Courts Act 1980 (time limit for proceedings).
F392Part X Child Minding and Day Care for Young Children
F39371. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F39472. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F39573. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F39674. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F39775. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F39876. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F39977. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F40078. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F40179. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F402F402F403Part XA Child Minding and Day Care for Children in F404. . . Wales
Introductory
F40579A Child minders and day care providers.
(1)
This section and section 79B apply for the purposes of this Part.
(2)
“Act as a child minder” means (subject to the following subsections) look after one or more children under the age of eight on domestic premises for reward; and “child minding” shall be interpreted accordingly.
(3)
A person who—
(a)
is the parent, or a relative, of a child;
(b)
has parental responsibility for a child;
(c)
is a local authority foster parent in relation to a child;
(d)
is a foster parent with whom a child has been placed by a voluntary organisation; or
(e)
fosters a child privately,
does not act as a child minder when looking after that child.
(4)
Where a person—
(a)
looks after a child for the parents (“P1”), or
(b)
in addition to that work, looks after another child for different parents (“P2”),
and the work consists (in a case within paragraph (a)) of looking after the child wholly or mainly in P1’s home or (in a case within paragraph (b)) of looking after the children wholly or mainly in P1’s home or P2’s home or both, the work is not to be treated as child minding.
(5)
In subsection (4), “parent”, in relation to a child, includes—
(a)
a person who is not a parent of the child but who has parental responsibility for the child;
(b)
a person who is a relative of the child.
(6)
“Day care” means care provided at any time for children under the age of eight on premises other than domestic premises.
(7)
This Part does not apply in relation to a person who acts as a child minder, or provides day care on any premises, unless the period, or the total of the periods, in any day which he spends looking after children or (as the case may be) during which the children are looked after on the premises exceeds two hours.
(8)
In determining whether a person is required to register under this Part for child minding, any day on which he does not act as a child minder at any time between 2 am and 6 pm is to be disregarded.
F40679B Other definitions, etc.
(1)
F407. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F408(2)
In this Act “the Assembly” means the National Assembly for Wales.
(3)
A person is qualified for registration for child minding if—
(a)
he, and every other person looking after children on any premises on which he is or is likely to be child minding, is suitable to look after children under the age of eight;
(b)
every person living or employed on the premises in question is suitable to be in regular contact with children under the age of eight;
(c)
the premises in question are suitable to be used for looking after children under the age of eight, having regard to their condition and the condition and appropriateness of any equipment on the premises and to any other factor connected with the situation, construction or size of the premises; and
(d)
he is complying with regulations under section 79C and with any conditions imposed F409under this Part .
(4)
A person is qualified for registration for providing day care on particular premises if—
F410(a)
he has made adequate arrangements to ensure that—
(i)
every person (other than himself and the responsible individual) looking after children on the premises is suitable to look after children under the age of eight; and
(ii)
every person (other than himself and the responsible individual) living or working on the premises is suitable to be in regular contact with children under the age of eight;
(b)
the responsible individual—
(i)
is suitable to look after children under the age of eight, or
(ii)
if he is not looking after such children, is suitable to be in regular contact with them;
(c)
the premises are suitable to be used for looking after children under the age of eight, having regard to their condition and the condition and appropriateness of any equipment on the premises and to any other factor connected with the situation, construction or size of the premises; and
(d)
he is complying with regulations under section 79C and with any conditions imposed F411under this Part .
(5)
For the purposes of subsection F412(4)(a) a person is not treated as working on the premises in question if—
(a)
none of his work is done in the part of the premises in which children are looked after; or
(b)
he does not work on the premises at times when children are looked after there.
F413(5ZA)
For the purposes of subsection (4), “the responsible individual” means—
(a)
in a case of one individual working on the premises in the provision of day care, that person;
(b)
in a case of two or more individuals so working, the individual so working who is in charge.
F414(5A)
Where, for the purposes of determining a person’s qualification for registration under this Part—
(a)
(b)
A does not give his consent (or withdraws it after having given it),
F415the Assembly may, if regulations so provide and it thinks it appropriate to do so, regard A as not suitable to look after children under the age of eight, or not suitable to be in regular contact with such children.
(6)
“Domestic premises” means any premises which are wholly or mainly used as a private dwelling and “premises” includes any area and any vehicle.
F416(7)
“Regulations” means regulations made by the Assembly.
(8)
F417. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9)
Schedule 9A (which supplements the provisions of this Part) shall have effect.
Regulations
F41879C Regulations etc. governing child minders and day care providers.
(1)
F419. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2)
The Assembly may make regulations governing the activities of registered persons who act as child minders, or provide day care, on premises in Wales.
(3)
The regulations under this section may deal with the following matters (among others)—
(a)
the welfare and development of the children concerned;
(b)
suitability to look after, or be in regular contact with, children under the age of eight;
(c)
qualifications and training;
(d)
the maximum number of children who may be looked after and the number of persons required to assist in looking after them;
(e)
the maintenance, safety and suitability of premises and equipment;
(f)
the keeping of records;
(g)
the provision of information.
(4)
F420. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5)
F421. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6)
If the regulations require any person (other than F422the Assembly ) to have regard to or meet factors, standards and other matters prescribed by or referred to in the regulations, they may also provide for any allegation that the person has failed to do so to be taken into account—
(a)
by F422the Assembly in the exercise of its functions under this Part, or
(b)
in any proceedings under this Part.
(7)
Regulations may provide—
(a)
that a registered person who without reasonable excuse contravenes, or otherwise fails to comply with, any requirement of the regulations shall be guilty of an offence; and
(b)
that a person guilty of the offence shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Registration
F42379D Requirement to register.
F424(1)
No person shall act as a child minder in Wales unless he is registered under this Part for child minding by the Assembly.
(2)
(3)
An enforcement notice shall have effect for a period of one year beginning with the date on which it is served.
(4)
If a person in respect of whom an enforcement notice has effect contravenes subsection (1) without reasonable excuse F426. . . , he shall be guilty of an offence.
(5)
(6)
If any person contravenes subsection (5) without reasonable excuse, he shall be guilty of an offence.
(7)
A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
F42879E Applications for registration.
(1)
A person who wishes to be registered under this Part shall make an application to F429the Assembly .
(2)
The application shall—
(a)
give prescribed information about prescribed matters;
(b)
give any other information which F429the Assembly reasonably requires the applicant to give.
F430(c)
be accompanied by the prescribed fee.
(3)
Where a person provides, or proposes to provide, day care on different premises, he shall make a separate application in respect of each of them.
(4)
(5)
A person who, in an application under this section, knowingly makes a statement which is false or misleading in a material particular shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.
F43179F Grant or refusal of registration.
(1)
If, on an application F432under section 79E by a person for registration for child minding—
(a)
(b)
F434. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F433the Assembly shall grant the application; otherwise, it shall refuse it.
(2)
If, on an application F432under section 79E by any person for registration for providing day care on any premises—
(a)
(b)
F434. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F433the Assembly shall grant the application; otherwise, it shall refuse it.
(3)
(4)
F433The Assembly may as it thinks fit vary or remove any condition to which the registration is subject or impose a new condition.
(5)
Any register kept by F433the Assembly of persons who act as child minders or provide day care shall be open to inspection by any person at all reasonable times.
(6)
A registered person who without reasonable excuse contravenes, or otherwise fails to comply with, any condition imposed on his registration shall be guilty of an offence.
(7)
A person guilty of an offence under subsection (6) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
F43579G Cancellation of registration.
(1)
F436the Assembly may cancel the registration of any person if—
(a)
in the case of a person registered for child minding, F436the Assembly is of the opinion that the person has ceased or will cease to be qualified for registration for child minding;
(b)
in the case of a person registered for providing day care on any premises, F436the Assembly is of the opinion that the person has ceased or will cease to be qualified for registration for providing day care on those premises,
or if F437a fee which is due from the person has not been paid.
(2)
Where a requirement to make any changes or additions to any services, equipment or premises has been imposed on a registered person F438. . . , his registration shall not be cancelled on the ground of any defect or insufficiency in the services, equipment or premises if—
(a)
the time set for complying with the requirements has not expired; and
(b)
it is shown that the defect or insufficiency is due to the changes or additions not having been made.
(3)
Any cancellation under this section must be in writing.
F43979H Suspension of registration.
(1)
Regulations may provide for the registration of any person for acting as a child minder or providing day care to be suspended for a prescribed period by F440the Assembly in prescribed circumstances.
(2)
Any regulations made under this section shall include provision conferring on the person concerned a right of appeal to the F441First-tier Tribunal against suspension.
F442(3)
F443. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)
A person registered under this Part for child minding by the Assembly shall not act as a child minder in Wales at a time when that registration is so suspended.
(5)
A person registered under this Part for providing day care on any premises shall not provide day care on those premises at any time when that registration is so suspended.
(6)
If any person contravenes subsection (3), (4) or (5) without reasonable excuse, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
F44479J Resignation of registration.
(1)
A person who is registered for acting as a child minder or providing day care may by notice in writing to F445the Assembly resign his registration.
(2)
But a person may not give a notice under subsection (1)—
(a)
(b)
if F445the Assembly has sent him a notice under section 79L(5) of its decision to cancel the registration and the time within which an appeal may be brought has not expired or, if an appeal has been brought, it has not been determined.
F44679K Protection of children in an emergency.
(1)
If, in the case of any person registered F447under this Part for acting as a child minder or providing day care—
(a)
F448the Assembly applies to a justice of the peace for an order—
(i)
cancelling the registration;
(ii)
varying or removing any condition to which the registration is subject; or
(iii)
imposing a new condition; and
(b)
it appears to the justice that a child who is being, or may be, looked after by that person, or (as the case may be) in accordance with the provision for day care made by that person, is suffering, or is likely to suffer, significant harm,
the justice may make the order.
(2)
The cancellation, variation, removal or imposition shall have effect from the time when the order is made.
(3)
An application under subsection (1) may be made without notice.
(4)
An order under subsection (1) shall be made in writing.
(5)
Where an order is made under this section, F448the Assembly shall serve on the registered person, as soon as is reasonably practicable after the making of the order—
(a)
a copy of the order;
(b)
a copy of any written statement of F448the Assembly’s reasons for making the application for the order which supported that application; and
(c)
notice of any right of appeal conferred by section 79M.
(6)
Where an order has been so made, F448the Assembly shall, as soon as is reasonably practicable after the making of the order, notify the local authority in whose area the person concerned acts or acted as a child minder, or provides or provided day care, of the making of the order.
F44979L Notice of intention to take steps.
(1)
Not less than 14 days before—
(a)
refusing an application for registration;
(b)
cancelling a registration;
(c)
removing or varying any condition to which a registration is subject or imposing a new condition; or
(d)
refusing to grant an application for the removal or variation of any condition to which a registration is subject,
F450the Assembly shall send to the applicant, or (as the case may be) registered person, notice in writing of its intention to take the step in question.
(2)
Every such notice shall—
(a)
give F450the Assembly’s reasons for proposing to take the step; and
(b)
inform the person concerned of his rights under this section.
(3)
(4)
Any objection made under subsection (3) may be made orally or in writing, by the recipient of the notice or a representative.
(5)
If F450the Assembly , after giving the person concerned an opportunity to object to the step being taken, decides nevertheless to take it, it shall send him written notice of its decision.
(6)
A step of a kind mentioned in subsection (1)(b) or (c) shall not take effect until the expiry of the time within which an appeal may be brought under section 79M or, where such an appeal is brought, before its determination.
(7)
Subsection (6) does not prevent a step from taking effect before the expiry of the time within which an appeal may be brought under section 79M if the person concerned notifies F450the Assembly in writing that he does not intend to appeal.
F45179M Appeals.
(1)
An appeal against—
(a)
the taking of any step mentioned in section 79L(1); F452. . .
(b)
an order under section 79K, F453or
(c)
a determination made by F454the Assembly under this Part (other than one falling within paragraph (a) or (b)) which is of a prescribed description,
shall lie to the F455First-tier Tribunal.
(2)
On an appeal, the F455First-tier Tribunal may—
(a)
confirm the taking of the step or the making of the order F456or determination or direct that it shall not have, or shall cease to have, effect; and
(b)
impose, vary or cancel any condition.
Inspection: England
F45779N General functions of the Chief Inspector.
F458. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
79P Early years child care inspectorate.
F459. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F46079Q Inspection of provision of child minding and day care in England.
F461. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F46279R Reports of inspections.
F463. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Inspection: Wales
F46479S General functions of the Assembly.
(1)
The Assembly may secure the provision of training for persons who provide or assist in providing child minding or day care, or intend to do so.
(2)
In relation to child minding and day care provided in Wales, the Assembly shall have any additional function specified in regulations made by the Assembly; F465. . .
F46679T Inspection: Wales.
(1)
The Assembly may at any time require any registered person to provide it with any information connected with the person’s activities as a child minder or provision of day care which the Assembly considers it necessary to have for the purposes of its functions under this Part.
(2)
The Assembly may by regulations make provision—
(a)
for the inspection of F467. . . child minding provided in Wales by registered persons and of day care provided by registered persons on premises in Wales;
(b)
for the publication of reports of the inspections in such manner as the Assembly considers appropriate.
(3)
The regulations may provide for the inspections to be organised by—
(a)
the Assembly; or
(b)
Her Majesty’s Chief Inspector of Education and Training in Wales, or any other person, under arrangements made with the Assembly.
(4)
The regulations may provide for subsections (2) to (4) of F468section 29 of the Education Act 2005 to apply with modifications in relation to the publication of reports under the regulations.
Supplementary
F46979U Rights of entry etc.
(1)
(2)
F474(2A)
Authorisation under subsection (1) or (2)—
(a)
may be given for a particular occasion or period;
(b)
may be given subject to conditions.
(3)
F475A person entering premises under this section may (subject to any conditions imposed under subsection (2A)(b))—
(a)
inspect the premises;
(b)
inspect, and take copies of—
(i)
any records kept by the person providing the child minding or day care; and
(ii)
any other documents containing information relating to its provision;
(c)
seize and remove any document or other material or thing found there which he has reasonable grounds to believe may be evidence of a failure to comply with any condition or requirement imposed by or under this Part;
(d)
require any person to afford him such facilities and assistance with respect to matters within the person’s control as are necessary to enable him to exercise his powers under this section;
(e)
take measurements and photographs or make recordings;
(f)
inspect any children being looked after there, and the arrangements made for their welfare;
(g)
interview in private the person providing the child minding or day care; and
(h)
interview in private any person looking after children, or living or working, there who consents to be interviewed.
(4)
F476Section 58 of the Education Act 2005 (inspection of computer records for purposes of Part I of that Act) shall apply for the purposes of subsection (3) as it applies for the purposes of Part I of that Act.
F477(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6)
A person exercising any power conferred by this section shall, if so required, produce some duly authenticated document showing his authority to do so.
(7)
It shall be an offence wilfully to obstruct a person exercising any such power.
(8)
Any person guilty of an offence under subsection (7) shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(9)
In this section—
F478. . .
“documents” and “records” each include information recorded in any form.
F47979V Function of local authorities.
Each local authority F480in Wales shall, in accordance with regulations, secure the provision—
(a)
of information and advice about child minding and day care; and
(b)
of training for persons who provide or assist in providing child minding or day care.
Checks on suitability of persons working with children over the age of seven
F48179W Requirement for certificate of suitability.
(1)
This section applies to any person not required to register under this Part who looks after, or provides care for, children F482in Wales and meets the following conditions.
References in this section to children are to those under the age of 15 or (in the case of disabled children) 17.
(2)
The first condition is that the period, or the total of the periods, in any week which he spends looking after children or (as the case may be) during which the children are looked after exceeds five hours.
(3)
The second condition is that he would be required to register under this Part (or, as the case may be, this Part if it were subject to prescribed modifications) if the children were under the age of eight.
(4)
Regulations may require a person to whom this section applies to hold a certificate issued by F483the Assembly as to his suitability, and the suitability of each prescribed person, to look after children.
(5)
The regulations may make provision about—
(a)
applications for certificates;
(b)
the matters to be taken into account by F483the Assembly in determining whether to issue certificates;
(c)
the information to be contained in certificates;
(d)
the period of their validity.
(6)
The regulations may provide that a person to whom this section applies shall be guilty of an offence—
(a)
if he does not hold a certificate as required by the regulations; or
(b)
if, being a person who holds such a certificate, he fails to produce it when reasonably required to do so by a prescribed person.
(7)
The regulations may provide that a person who, for the purpose of obtaining such a certificate, knowingly makes a statement which is false or misleading in a material particular shall be guilty of an offence.
(8)
The regulations may provide that a person guilty of an offence under the regulations shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Time limit for proceedings
F48479X Time limit for proceedings.
Proceedings for an offence under this Part or regulations made under it may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge; but no such proceedings shall be brought by virtue of this section more than three years after the commission of the offence.
Part XI Secretary of State’s Supervisory Functions and Responsibilities
F48580 Inspection of children’s homes etc. by persons authorised by Secretary of State.
(1)
The Secretary of State may cause to be inspected from time to time any—
(a)
F486private children’s home;
(b)
premises in which a child who is being looked after by a local authority is living;
(c)
premises in which a child who is being accommodated by or on behalf of a F487local authority in the exercise of education functions or a voluntary organisation is living;
(d)
(e)
F492. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f)
F492. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g)
premises in which a privately fostered child, or child who is treated as a foster child by virtue of paragraph 9 of Schedule 8, is living or in which it is proposed that he will live;
(h)
premises on which any person is acting as a child minder;
F495(j)
care home or independent hospital used to accommodate children;
(k)
premises which are provided by a local authority and in which any service is provided by that authority under Part III;
(l)
F496school or college providing accommodation for any child;
(2)
An inspection under this section shall be conducted by a person authorised to do so by the Secretary of State.
(3)
An officer of a local authority shall not be so authorised except with the consent of that authority.
(4)
The Secretary of State may require any person of a kind mentioned in subsection (5) to furnish him with such information, or allow him to inspect such records (in whatever form they are held), relating to—
(a)
any premises to which subsection (1) or, in relation to Scotland, subsection (1)(h) or (i) applies;
(b)
any child who is living in any such premises;
(c)
the discharge by the Secretary of State of any of his functions under this Act; F497or
(d)
the discharge by any local authority of any of their functions under this Act,
as the Secretary of State may at any time direct.
(5)
The persons are any—
(a)
local authority;
(b)
voluntary organisation;
(c)
person carrying on a F486private children’s home;
(d)
proprietor of an independent school F498or governing body of any other school;
F499(da)
governing body of an institution designated under section 28 of the M26Further and Higher Education Act 1992;
(db)
further education corporation;
F500(dc)
sixth form college corporation;
(e)
(f)
F505. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g)
(h)
F508person who is the occupier of any premises in which any person acts as a child minder (within the meaning of Part X) or provides day care for young children (within the meaning of that Part);
F509(hh)
F508person who is the occupier of any premises—
(i)
in which any person required to be registered for child minding under Part XA acts as a child minder (within the meaning of that Part); or
(ii)
with respect to which a person is required to be registered under that Part for providing day care;
(i)
person carrying on any home of a kind mentioned in subsection (1)(j).
F510(j)
person carrying on a fostering agency.
(6)
Any person inspecting any home or other premises under this section may—
(a)
inspect the children there; and
(b)
make such examination into the state and management of the home or premises and the treatment of the children there as he thinks fit.
(7)
Any person authorised by the Secretary of State to exercise the power to inspect records conferred by subsection (4)—
(a)
shall be entitled at any reasonable time to have access to, and inspect and check the operation of, any computer and any associated apparatus or material which is or has been in use in connection with the records in question; and
(b)
may require—
(i)
the person by whom or on whose behalf the computer is or has been so used; or
(ii)
any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material,
to afford him such reasonable assistance as he may require.
(8)
A person authorised to inspect any premises under this section shall have a right to enter the premises for that purpose, and for any purpose specified in subsection (4), at any reasonable time.
(9)
Any person exercising that power shall, if so required, produce some duly authenticated document showing his authority to do so.
(10)
Any person who intentionally obstructs another in the exercise of that power shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(11)
The Secretary of State may by order provide for subsections (1), (4) and (6) not to apply in relation to such homes, or other premises, as may be specified in the order.
(12)
Without prejudice to section 104, any such order may make different provision with respect to each of those subsections.
F511(13)
In this section—
“college” means an institution within the further education sector as defined in section 91 of the M27Further and Higher Education Act 1992;
“fostering agency” has the same meaning as in the Care Standards Act 2000;
“further education corporation” has the same meaning as in the M28Further and Higher Education Act 1992.
F512“sixth form college corporation” has the same meaning as in that Act.
81 Inquiries.
F513. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
82 Financial support by Secretary of State.
(1)
The Secretary of State may (with the consent of the Treasury) defray or contribute towards—
(a)
any fees or expenses incurred by any person undergoing approved child care training;
(b)
any fees charged, or expenses incurred, by any person providing approved child care training or preparing material for use in connection with such training; or
(c)
the cost of maintaining any person undergoing such training.
(2)
The Secretary of State may make grants to local authorities in respect of expenditure incurred by them in providing secure accommodation in community homes other than assisted community homes.
(3)
Where—
(a)
a grant has been made under subsection (2) with respect to any secure accommodation; but
(b)
the grant is not used for the purpose for which it was made or the accommodation is not used as, or ceases to be used as, secure accommodation,
the Secretary of State may (with the consent of the Treasury) require the authority concerned to repay the grant, in whole or in part.
(4)
The Secretary of State may make grants to voluntary organisations towards—
(a)
expenditure incurred by them in connection with the establishment, maintenance or improvement of voluntary homes which, at the time when the expenditure was incurred—
(i)
were assisted community homes; or
(ii)
were designated as such; or
(b)
expenses incurred in respect of the borrowing of money to defray any such expenditure.
(5)
The Secretary of State may arrange for the provision, equipment and maintenance of homes for the accommodation of children who are in need of particular facilities and services which—
(a)
are or will be provided in those homes; and
(b)
in the opinion of the Secretary of State, are unlikely to be readily available in community homes.
(6)
In this Part—
“child care training” means training undergone by any person with a view to, or in the course of—
(a)
his employment for the purposes of any of the functions mentioned in section 83(9) or in connection with the adoption of children or with the accommodation of children in a F514care home or independent hospital; or
(b)
his employment by a voluntary organisation for similar purposes;
“approved child care training” means child care training which is approved by the Secretary of State; and
“secure accommodation” means accommodation provided for the purpose of restricting the liberty of children.
(7)
Any grant made under this section shall be of such amount, and shall be subject to such conditions, as the Secretary of State may (with the consent of the Treasury) determine.
83 Research and returns of information.
(1)
The Secretary of State may conduct, or assist other persons in conducting, research into any matter connected with—
(a)
his functions, or the functions of local authorities, under the enactments mentioned in subsection (9);
F515(aa)
the functions of Local Safeguarding Children Boards;
(b)
the adoption of children; or
(c)
the accommodation of children in a F516care home or independent hospital.
(2)
Any local authority may conduct, or assist other persons in conducting, research into any matter connected with—
(a)
their functions under the enactments mentioned in subsection (9);
F517(aa)
the functions of Local Safeguarding Children Boards;
(b)
the adoption of children; or
(c)
the accommodation of children in a F516care home or independent hospital.
(3)
Every local authority shall, at such times and in such form as the Secretary of State may direct, transmit to him such particulars as he may require with respect to—
(a)
the performance by the local authority of all or any of their functions—
(i)
under the enactments mentioned in subsection (9); or
(ii)
in connection with the accommodation of children in a F516care home or independent hospital; and
(b)
the children in relation to whom the authority have exercised those functions.F518; and
(c)
the performance by the Local Safeguarding Children Board established by them under the Children Act 2004 of all or any of its functions.
(4)
Every voluntary organisation shall, at such times and in such form as the Secretary of State may direct, transmit to him such particulars as he may require with respect to children accommodated by them or on their behalf.
F519(4A)
Particulars required to be transmitted under subsection (3) or (4) may include particulars relating to and identifying individual children.
(5)
The Secretary of State may direct the F520F521designated officer for each magistrates’ court to which the direction is expressed to relate to transmit—
(a)
to such person as may be specified in the direction; and
(b)
at such times and in such form as he may direct,
such particulars as he may require with respect to proceedings of the court which relate to children.
(6)
The Secretary of State shall in each year lay before Parliament a consolidated and classified abstract of the information transmitted to him under subsections (3) to (5).
(7)
The Secretary of State may institute research designed to provide information on which requests for information under this section may be based.
(8)
The Secretary of State shall keep under review the adequacy of the provision of child care training and for that purpose shall receive and consider any information from or representations made by—
(a)
the Central Council for Education and Training in Social Work;
(b)
such representatives of local authorities as appear to him to be appropriate; or
(c)
such other persons or organisations as appear to him to be appropriate,
concerning the provision of such training.
(9)
The enactments are—
(a)
this Act;
(b)
the Children and Young Persons Acts 1933 to 1969;
(c)
section 116 of the M29Mental Health Act 1983 (so far as it relates to children looked after by local authorities);
F522(ca)
Part 1 of the Adoption and Children Act 2002;
(cb)
the Children Act 2004;
(cc)
the Children and Young Persons Act 2008.
(d)
F523. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
84 Local authority failure to comply with statutory duty: default power of Secretary of State.
(1)
If the Secretary of State is satisfied that any local authority has failed, without reasonable excuse, to comply with any of the duties imposed on them by or under this Act he may make an order declaring that authority to be in default with respect to that duty.
(2)
An order under subsection (1) shall give the Secretary of State’s reasons for making it.
(3)
An order under subsection (1) may contain such directions for the purpose of ensuring that the duty is complied with, within such period as may be specified in the order, as appear to the Secretary of State to be necessary.
(4)
Any such direction shall, on the application of the Secretary of State, be enforceable by mandamus.
Part XII Miscellaneous and General
Notification of children accommodated in certain establishments
85 Children accommodated by health authorities and local education authorities.
(1)
Where a child is provided with accommodation by any F524F525Local Health Board , Special Health Authority,F526Primary Care Trust,F527National Health Service trustF528or NHS foundation trust or by a local authority in the exercise of education functions (“the accommodating authority”)—
(a)
for a consecutive period of at least three months; or
(b)
with the intention, on the part of that authority, of accommodating him for such a period,
the accommodating authority shall notify F529the appropriate officer of the responsible authority.
(2)
Where subsection (1) applies with respect to a child, the accommodating authority shall also notify F530the appropriate officer of the responsible authority when they cease to accommodate the child.
F531(2A)
In a case where the child is provided with accommodation by a local authority in the exercise of education functions, subsections (1) and (2) apply only if the local authority providing the accommodation is different from the responsible authority.
(3)
In this section “the responsible authority” means—
(a)
the local authority appearing to the accommodating authority to be the authority within whose area the child was ordinarily resident immediately before being accommodated; or
(b)
where it appears to the accommodating authority that a child was not ordinarily resident within the area of any local authority, the local authority within whose area the accommodation is situated.
F532(3A)
In this section and sections 86 and 86A “ the appropriate officer ” means—
(a)
in relation to a local authority in England, their director of children's services; and
(b)
in relation to a local authority in Wales, their lead director for children and young people's services.
(4)
Where F533the appropriate officer of a local authority has been notified under this section, F534the local authority shall—
(a)
take such steps as are reasonably practicable to enable them to determine whether the child’s welfare is adequately safeguarded and promoted while he is accommodated by the accommodating authority; and
(b)
consider the extent to which (if at all) they should exercise any of their functions under this Act with respect to the child.
F535(5)
For the purposes of subsection (4)(b), if the child is not in the area of the local authority, they must treat him as if he were in that area.
86F536 Children accommodated in care homes or independent hospitals.
(1)
Where a child is provided with accommodation in any F537care home or independent hospital—
(a)
for a consecutive period of at least three months; or
(b)
with the intention, on the part of the person taking the decision to accommodate him, of accommodating him for such period,
(2)
(3)
Where F543the appropriate officer of a local authority has been notified under this section, F544the local authority shall—
(a)
take such steps as are reasonably practicable to enable them to determine whether the child’s welfare is adequately safeguarded and promoted while he is accommodated in F545the establishment in question ; and
(b)
consider the extent to which (if at all) they should exercise any of their functions under this Act with respect to the child.
(4)
If the person carrying on any F546care home or independent hospital fails, without reasonable excuse, to comply with this section he shall be guilty of an offence.
(5)
A person authorised by a local authority may enter any F537care home or independent hospital within the authority’s area for the purpose of establishing whether the requirements of this section have been complied with.
(6)
Any person who intentionally obstructs another in the exercise of the power of entry shall be guilty of an offence.
(7)
Any person exercising the power of entry shall, if so required, produce some duly authenticated document showing his authority to do so.
(8)
Any person committing an offence under this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
F54786AVisitors for children notified to local authority under section 85 or 86
(1)
This section applies if the appropriate officer of a local authority—
(a)
has been notified with respect to a child under section 85(1) or 86(1); and
(b)
has not been notified with respect to that child under section 85(2) or, as the case may be, 86(2).
(2)
The local authority must, in accordance with regulations made under this section, make arrangements for the child to be visited by a representative of the authority (“a representative”).
(3)
It is the function of a representative to provide advice and assistance to the local authority on the performance of their duties under section 85(4) or, as the case may be, 86(3).
(4)
Regulations under this section may make provision about—
(a)
the frequency of visits under visiting arrangements;
(b)
circumstances in which visiting arrangements must require a child to be visited; and
(c)
additional functions of a representative.
(5)
Regulations under this section are to be made by the Secretary of State and the Welsh Ministers acting jointly.
(6)
In choosing a representative a local authority must satisfy themselves that the person chosen has the necessary skills and experience to perform the functions of a representative.
(7)
In this section “ visiting arrangements ” means arrangements made under subsection (2).
87F548Welfare of children in boarding schools and colleges.
F549(1)
Where a school or college provides accommodation for any child, it shall be the duty of the relevant person to safeguard and promote the child’s welfare.
F550(1A)
For the purposes of this section and sections 87A to 87D, a school or college provides accommodation for a child if—
(a)
it provides accommodation for the child on its own premises, or
(b)
it arranges for accommodation for the child to be provided elsewhere (other than in connection with a residential trip away from the school).
(2)
Subsection (1) does not apply in relation to a school or college which is a children’s home or care home.
(3)
Where accommodation is provided for a child by any school or college the appropriate authority shall take such steps as are reasonably practicable to enable them to determine whether the child’s welfare is adequately safeguarded and promoted while F551accommodation for the child is provided by the school or college.
F552(3A)
Where accommodation is provided for a child by a school or college in England, the Secretary of State may at any time (including a time when the duty under subsection (3) is suspended by virtue of section 87A) direct the Chief Inspector for England to take the steps referred to in subsection (3).
(3B)
Where accommodation is provided for a child by a school or college in Wales, the Welsh Ministers may, at any time when the duty under subsection (3) is suspended by virtue of section 87A, take the steps referred to in subsection (3).
(4)
Where F553the Chief Inspector for England is of the opinion that there has been a failure to comply with subsection (1) in relation to a child provided with accommodation by a school or F554college in England, he shall—
(a)
in the case of a school other than an independent school or a special school, notify the F555local authority for the area in which the school is situated;
(b)
in the case of a special school which is maintained by a F555local authority, notify that authority;
(c)
in any other case, notify the Secretary of State.
(4A)
Where the National Assembly for Wales are of the opinion that there has been a failure to comply with subsection (1) in relation to a child provided with accommodation by a school or college F556in Wales , they shall—
(a)
in the case of a school other than an independent school or a special school, notify the F555local authority for the area in which the school is situated;
(b)
in the case of a special school which is maintained by a F555local authority, notify that authority.
(5)
Where accommodation is, or is to be, provided for a child by any school or college, a person authorised by the appropriate authority may, for the purpose of enabling that authority to discharge F557any of its functions under this section, enter at any time premises which are, or are to be, premises of the school or college.
(6)
Any person F558exercising the power conferred by subsection (5) may carry out such inspection of premises, children and records as is prescribed by regulations made by the Secretary of State for the purposes of this section.
(7)
Any person exercising that power shall, if asked to do so, produce some duly authenticated document showing his authority to do so.
(8)
Any person authorised by the regulations to inspect records—
(a)
shall be entitled at any reasonable time to have access to, and inspect and check the operation of, any computer and any associated apparatus or material which is or has been in use in connection with the records in question; and
(b)
may require—
(i)
the person by whom or on whose behalf the computer is or has been so used; or
(ii)
any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material,
to afford him such assistance as he may reasonably require.
(9)
Any person who intentionally obstructs another in the exercise of any power conferred by this section or the regulations shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
F559(9A)
Where F560the Chief Inspector for England or the National Assembly for Wales exercises the power conferred by subsection (5) in relation to a child, F561that authority must publish a report on whether the child’s welfare is adequately safeguarded and promoted while F562accommodation for the child is provided by the school or college.
(9B)
Where F563the Chief Inspector for England or the National Assembly for Wales publishes a report under this section, it must—
(a)
send a copy of the report to the school or college concerned; and
(b)
make copies of the report available for inspection at its offices by any person at any reasonable time.
(9C)
Any person who requests a copy of a report published under this section is entitled to have one on payment of such reasonable fee (if any) as F564the Chief Inspector for England or the National Assembly for Wales (as the case may be) considers appropriate.
F565(10)
In this section and sections 87A to 87D—
“ the 1992 Act ” means the M30 Further and Higher Education Act 1992;
“ appropriate authority ” means—
(a)
in relation to England, F566the Chief Inspector for England ;
(b)
in relation to Wales, the National Assembly for Wales;
F567 “ the Chief Inspector for England ” means Her Majesty's Chief Inspector of Education, Children's Services and Skills;
“ college ” means an institution within the further education sector as defined in section 91 of the 1992 Act;
F568 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“ further education corporation ” has the same meaning as in the 1992 Act;
F555 local authority and “ proprietor ” have the same meanings as in the M31 Education Act 1996
F569 “ sixth form college corporation ” has the same meaning as in the 1992 Act.
(11)
In this section and sections 87A and 87D “ relevant person ” means—
(a)
in relation to an independent school, the proprietor of the school;
(b)
in relation to any other school, or an institution designated under section 28 of the 1992 Act, the governing body of the school or institution;
(c)
in relation to an institution conducted by a further education corporation F570or sixth form college corporation, the corporation.
(12)
Where a person other than the proprietor of an independent school is responsible for conducting the school, references in this section to the relevant person include references to the person so responsible.
F571 87A Suspension of duty under section 87(3).
(1)
The Secretary of State may appoint a person to be an inspector for the purposes of this section if—
(a)
that person already acts as an inspector for other purposes in relation to schools or colleges to which section 87(1) applies, and
(b)
the Secretary of State is satisfied that the person is an appropriate person to determine whether the welfare of children provided with accommodation by such schools or colleges is adequately safeguarded and promoted while F572accommodation for the children is provided by them.
(2)
Where—
(a)
the relevant person enters into an agreement in writing with a person appointed under subsection (1),
(b)
the agreement provides for the person so appointed to have in relation to the school or college the function of determining whether section 87(1) is being complied with, and
(c)
the appropriate authority receive from the person mentioned in paragraph (b) (“the inspector”) notice in writing that the agreement has come into effect,
the appropriate authority’s duty under section 87(3) in relation to the school or college shall be suspended.
(3)
Where the appropriate authority’s duty under section 87(3) in relation to any school or college is suspended under this section, it shall cease to be so suspended if the appropriate authority receive—
(a)
a notice under subsection (4) relating to the inspector, or
(b)
a notice under subsection (5) relating to the relevant agreement.
(4)
The Secretary of State shall terminate a person’s appointment under subsection (1) if—
(a)
that person so requests, or
(b)
the Secretary of State ceases, in relation to that person, to be satisfied that he is such a person as is mentioned in paragraph (b) of that subsection,
and shall give notice of the termination of that person’s appointment to the appropriate authority.
F573(4A)
The Secretary of State may by regulations specify matters that must be taken into account in deciding whether to appoint a person to be an inspector for the purposes of this section in relation to schools or colleges in England, or to terminate the appointment of such a person under subsection (4)(b).
(5)
Where—
(a)
the appropriate authority’s duty under section 87(3) in relation to any school or college is suspended under this section, and
(b)
the relevant agreement ceases to have effect,
the inspector shall give to the appropriate authority notice in writing of the fact that it has ceased to have effect.
(6)
In this section references to the relevant agreement, in relation to the suspension of the appropriate authority’s duty under section 87(3) as regards any school or college, are to the agreement by virtue of which the appropriate authority’s duty under that provision as regards that school or college is suspended.
F57487B Duties of inspectors under section 87A.
(1)
The Secretary of State may impose on a person appointed under section 87A(1) (“an authorised inspector”) such requirements relating to, or in connection with, the carrying out under substitution agreements of the function mentioned in section 87A(2)(b) as the Secretary of State thinks fit.
(2)
Where, in the course of carrying out under a substitution agreement the function mentioned in section 87A(2)(b), it appears to an authorised inspector that there has been a failure to comply with section 87(1) in the case of a child provided with accommodation by the school F575or college to which the agreement relates, the inspector shall give notice of that fact
F576(a)
in the case of a school other than an independent school or a special school, to the F577local authority for the area in which the school is situated;
(b)
in the case of a special school which is maintained by a F577local authority, to that authority;
(c)
in any other case, to the Secretary of State.
(3)
Where, in the course of carrying out under a substitution agreement the function mentioned in section 87A(2)(b), it appears to an authorised inspector that a child provided with accommodation by the school F578or college to which the agreement relates is suffering, or is likely to suffer, significant harm, the inspector shall—
(a)
give notice of that fact to the local authority in whose area the school F578or college is situated, and
(b)
where the inspector is required to make inspection reports to the Secretary of State, supply that local authority with a copy of the latest inspection report to have been made by the inspector to the Secretary of State in relation to the school F578or college.
F579(4)
In this section “substitution agreement” means an agreement by virtue of which the duty of the appropriate authority under section 87(3) in relation to a school or college is suspended.
F58087BAQuality assurance of inspectors under section 87A
(1)
The Chief Inspector for England must, at intervals of no more than a year, prepare and send to the Secretary of State a report about inspectors who are appointed under section 87A in relation to schools or colleges in England.
(2)
In preparing a report under this section the Chief Inspector for England must have regard to such matters as the Secretary of State may direct.
(3)
The Secretary of State may in particular give directions about—
(a)
matters to be taken into account in preparing a report, and
(b)
the form and contents of a report.
F581 87C Boarding schools: national minimum standards.
(1)
The Secretary of State may prepare and publish statements of national minimum standards for safeguarding and promoting the welfare of children for whom accommodation is provided F582by a school or college.
(2)
The Secretary of State shall keep the standards set out in the statements under review and may publish amended statements whenever he considers it appropriate to do so.
(3)
Before issuing a statement, or an amended statement which in the opinion of the Secretary of State effects a substantial change in the standards, the Secretary of State shall consult any persons he considers appropriate.
(4)
The standards shall be taken into account—
(a)
in the making by the appropriate authority of any determination under section 87(4) or (4A);
(b)
in the making by a person appointed under section 87A(1) of any determination under section 87B(2); and
(c)
in any proceedings under any other enactment in which it is alleged that the person has failed to comply with section 87(1).
F58387D Annual fee for boarding school inspections.
(1)
Regulations under subsection (2) may be made in relation to any school or college in respect of which the appropriate authority is required to take steps under section 87(3).
(2)
The Secretary of State may by regulations require the relevant person to pay the appropriate authority an annual fee of such amount, and within such time, as the regulations may specify.
(3)
A fee payable by virtue of this section may, without prejudice to any other method of recovery, be recovered summarily as a civil debt.
Adoption
88 Amendments of adoption legislation.
F584(1)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F585(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Paternity tests
F58689. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criminal care and supervision orders
90 Care and supervision orders in criminal proceedings.
(1)
The power of a court to make an order under subsection (2) of section 1 of the M32Children and Young Persons Act 1969 (care proceedings in F587 youth courts) where it is of the opinion that the condition mentioned in paragraph (f) of that subsection (“the offence condition”) is satisfied is hereby abolished.
(2)
The powers of the court to make care orders—
(a)
under section 7(7)(a) of the Children and Young Persons Act 1969 (alteration in treatment of young offenders etc.); and
(b)
under section 15(1) of that Act, on discharging a supervision order made under section 7(7)(b) of that Act,
are hereby abolished.
(3)
The powers given by that Act to include requirements in supervision orders shall have effect subject to amendments made by Schedule 12.
Effect and duration of orders etc.
91 Effect and duration of orders etc.
(1)
The making of a residence order with respect to a child who is the subject of a care order discharges the care order.
(2)
The making of a care order with respect to a child who is the subject of any section 8 order discharges that order.
F588(2A)
Where a contact activity direction has been made as regards contact with a child, the making of a care order with respect to the child discharges the direction.
(3)
The making of a care order with respect to a child who is the subject of a supervision order discharges that other order.
(4)
The making of a care order with respect to a child who is a ward of court brings that wardship to an end.
(5)
The making of a care order with respect to a child who is the subject of a school attendance order made under F589section 437 of the Education Act 1996 discharges the school attendance order.
F590(5A)
The making of a special guardianship order with respect to a child who is the subject of—
(a)
a care order; or
(b)
an order under section 34,
discharges that order.
(6)
Where an emergency protection order is made with respect to a child who is in care, the care order shall have effect subject to the emergency protection order.
(7)
(8)
Any—
(b)
appointment under section 5(3) or (4),
shall continue in force until the child reaches the age of eighteen, unless it is brought to an end earlier.
(9)
An order under Schedule 1 has effect as specified in that Schedule.
(10)
(11)
Where a section 8 order has effect with respect to a child who has reached the age of sixteen, it shall, if it would otherwise still be in force, cease to have effect when he reaches the age of eighteen.
(12)
Any care order, other than an interim care order, shall continue in force until the child reaches the age of eighteen, unless it is brought to an end earlier.
(13)
Any order made under any other provision of this Act in relation to a child shall, if it would otherwise still be in force, cease to have effect when he reaches the age of eighteen.
(14)
On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.
(15)
Where an application (“the previous application”) has been made for—
(a)
the discharge of a care order;
(b)
the discharge of a supervision order;
(c)
the discharge of an education supervision order;
(d)
the substitution of a supervision order for a care order; or
(e)
a child assessment order,
no further application of a kind mentioned in paragraphs (a) to (e) may be made with respect to the child concerned, without leave of the court, unless the period between the disposal of the previous application and the making of the further application exceeds six months.
(16)
Subsection (15) does not apply to applications made in relation to interim orders.
(17)
Where—
(a)
a person has made an application for an order under section 34;
(b)
the application has been refused; and
(c)
a period of less than six months has elapsed since the refusal,
that person may not make a further application for such an order with respect to the same child, unless he has obtained the leave of the court.
Jurisdiction and procedure etc.
92 Jurisdiction of courts.
(1)
The name “domestic proceedings”, given to certain proceedings in magistrates’ courts, is hereby changed to “family proceedings” and the names “domestic court” and “domestic court panel” are hereby changed to “family proceedings court” and “family panel”, respectively.
(2)
Proceedings under this Act shall be treated as family proceedings in relation to magistrates’ courts.
(3)
Subsection (2) is subject to the provisions of section 65(1) and (2) of the M33Magistrates’ Courts Act 1980 (proceedings which may be treated as not being family proceedings), as amended by this Act.
(4)
A magistrates’ court shall not be competent to entertain any application, or make any order, involving the administration or application of—
(a)
any property belonging to or held in trust for a child; or
(b)
the income of any such property.
(5)
The powers of a magistrates’ court under section 63(2) of the Act of 1980 to suspend or rescind orders shall not apply in relation to any order made under this Act.
(6)
Part I of Schedule 11 makes provision, including provision for the Lord Chancellor to make orders, with respect to the jurisdiction of courts and justices of the peace in relation to—
(a)
proceedings under this Act; and
(b)
proceedings under certain other enactments.
(7)
For the purposes of this Act “the court” means the High Court, a county court or a magistrates’ court.
(8)
Subsection (7) is subject to the provision made by or under Part I of Schedule 11 and to any express provision as to the jurisdiction of any court made by any other provision of this Act.
(9)
The Lord Chancellor may F597, after consulting the Lord Chief Justice, by order make provision for the principal registry of the Family Division of the High Court to be treated as if it were a county court for such purposes of this Act, or of any provision made under this Act, as may be specified in the order.
(10)
Any order under subsection (9) may make such provision as the Lord Chancellor thinks expedient F598, after consulting the Lord Chief Justice, for the purpose of applying (with or without modifications) provisions which apply in relation to the procedure in county courts to the principal registry when it acts as if it were a county court.
F599(10A)
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under subsection (9) or (10).
(11)
Part II of Schedule 11 makes amendments consequential on this section.
93 Rules of court.
(1)
An authority having power to make rules of court may make such provision for giving effect to—
(a)
this Act;
(b)
the provisions of any statutory instrument made under this Act; or
(c)
any amendment made by this Act in any other enactment,
as appears to that authority to be necessary or expedient.
(2)
The rules may, in particular, make provision—
(a)
with respect to the procedure to be followed in any relevant proceedings (including the manner in which any application is to be made or other proceedings commenced);
(b)
as to the persons entitled to participate in any relevant proceedings, whether as parties to the proceedings or by being given the opportunity to make representations to the court;
F600(bb)
for children to be separately represented in relevant proceedings,
(c)
with respect to the documents and information to be furnished, and notices to be given, in connection with any relevant proceedings;
(d)
applying (with or without modification) enactments which govern the procedure to be followed with respect to proceedings brought on a complaint made to a magistrates’ court to relevant proceedings in such a court brought otherwise than on a complaint;
(e)
with respect to preliminary hearings;
(f)
for the service outside F601England and Wales, in such circumstances and in such manner as may be prescribed, of any notice of proceedings in a magistrates’ court;
(g)
for the exercise by magistrates’ courts, in such circumstances as may be prescribed, of such powers as may be prescribed (even though a party to the proceedings in question is F602or resides outside England and Wales);
(h)
enabling the court, in such circumstances as may be prescribed, to proceed on any application even though the respondent has not been given notice of the proceedings;
(i)
authorising a single justice to discharge the functions of a magistrates’ court with respect to such relevant proceedings as may be prescribed;
(j)
authorising a magistrates’ court to order any of the parties to such relevant proceedings as may be prescribed, in such circumstances as may be prescribed, to pay the whole or part of the costs of all or any of the other parties.
(3)
In subsection (2)—
“notice of proceedings” means a summons or such other notice of proceedings as is required; and “given”, in relation to a summons, means “served”;
“prescribed” means prescribed by the rules; and
“relevant proceedings” means any application made, or proceedings brought, under any of the provisions mentioned in paragraphs (a) to (c) of subsection (1) and any part of such proceedings.
(4)
This section and any other power in this Act to make rules of court are not to be taken as in any way limiting any other power of the authority in question to make rules of court.
(5)
When making any rules under this section an authority shall be subject to the same requirements as to consultation (if any) as apply when the authority makes rules under its general rule making power.
94 Appeals.
(1)
F603Subject to any express provisions to the contrary made by or under this Act, an appeal shall lie to F604a county court against—
(a)
the making by a magistrates’ court of any order under this Act F605or the Adoption and Children Act 2002 ; or
(b)
any refusal by a magistrates’ court to make such an order.
(2)
Where a magistrates’ court has power, in relation to any proceedings under this Act F605or the Adoption and Children Act 2002 , to decline jurisdiction because it considers that the case can more conveniently be dealt with by another court, no appeal shall lie against any exercise by that magistrates’ court of that power.
(3)
Subsection (1) does not apply in relation to an interim order for periodical payments made under Schedule 1.
(4)
On an appeal under this section, F604a county court may make such orders as may be necessary to give effect to its determination of the appeal.
(5)
Where an order is made under subsection (4) F604a county court may also make such incidental or consequential orders as appear to it to be just.
(6)
Where an appeal from a magistrates’ court relates to an order for the making of periodical payments, F604a county court may order that its determination of the appeal shall have effect from such date as it thinks fit to specify in the order.
(7)
The date so specified must not be earlier than the earliest date allowed in accordance with rules of court made for the purposes of this section.
(8)
Where, on an appeal under this section in respect of an order requiring a person to make periodical payments, F604a county court reduces the amount of those payments or discharges the order—
(a)
it may order the person entitled to the payments to pay to the person making them such sum in respect of payments already made as F606the county court thinks fit; and
(b)
if any arrears are due under the order for periodical payments, it may remit payment of the whole, or part, of those arrears.
(9)
Any order of F604a county court made on an appeal under this section (other than one directing that an application be re-heard by a magistrates’ court) shall, for the purposes—
(a)
of the enforcement of the order; and
(b)
of any power to vary, revive or discharge orders,
be treated as if it were an order of the magistrates’ court from which the appeal was brought and not an order of F604a county court .
(10)
The Lord Chancellor may F607, after consulting the Lord Chief Justice, by order make provision as to the circumstances in which appeals may be made against decisions taken by courts on questions arising in connection with the transfer, or proposed transfer, of proceedings by virtue of any order under paragraph 2 of Schedule 11.
(11)
Except to the extent provided for in any order made under subsection (10), no appeal may be made against any decision of a kind mentioned in that subsection.
F608(12)
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under subsection (10).
95 Attendance of child at hearing under Part IV or V.
(1)
In any proceedings in which a court is hearing an application for an order under Part IV or V, or is considering whether to make any such order, the court may order the child concerned to attend such stage or stages of the proceedings as may be specified in the order.
(2)
The power conferred by subsection (1) shall be exercised in accordance with rules of court.
(3)
Subsections (4) to (6) apply where—
(a)
an order under subsection (1) has not been complied with; or
(b)
the court has reasonable cause to believe that it will not be complied with.
(4)
The court may make an order authorising a constable, or such person as may be specified in the order—
(a)
to take charge of the child and to bring him to the court; and
(b)
to enter and search any premises specified in the order if he has reasonable cause to believe that the child may be found on the premises.
(5)
The court may order any person who is in a position to do so to bring the child to the court.
(6)
Where the court has reason to believe that a person has information about the whereabouts of the child it may order him to disclose it to the court.
96 Evidence given by, or with respect to, children.
(1)
Subsection (2) applies where a child who is called as a witness in any civil proceedings does not, in the opinion of the court, understand the nature of an oath.
(2)
The child’s evidence may be heard by the court if, in its opinion—
(a)
he understands that it is his duty to speak the truth; and
(b)
he has sufficient understanding to justify his evidence being heard.
(3)
The Lord Chancellor may F609, with the concurrence of the Lord Chief Justice, by order make provision for the admissibility of evidence which would otherwise be inadmissible under any rule of law relating to hearsay.
(4)
An order under subsection (3) may only be made with respect to—
(a)
civil proceedings in general or such civil proceedings, or class of civil proceedings, as may be prescribed; and
(b)
evidence in connection with the upbringing, maintenance or welfare of a child.
(5)
An order under subsection (3)—
(a)
may, in particular, provide for the admissibility of statements which are made orally or in a prescribed form or which are recorded by any prescribed method of recording;
(b)
may make different provision for different purposes and in relation to different descriptions of court; and
(c)
may make such amendments and repeals in any enactment relating to evidence (other than in this Act) as the Lord Chancellor considers necessary or expedient in consequence of the provision made by the order.
(6)
Subsection (5)(b) is without prejudice to section 104(4).
(7)
In this section—
F610“civil proceedings” means civil proceedings, before any tribunal, in relation to which the strict rules of evidence apply, whether as a matter of law or by agreement of the parties, and references to “the court” shall be construed accordingly;
“prescribed” means prescribed by an order under subsection (3).
97 Privacy for children involved in certain proceedings.
(1)
(2)
No person shall publish F613to the public at large or any section of the public any material which is intended, or likely, to identify—
(a)
(b)
an address or school as being that of a child involved in any such proceedings.
(3)
In any proceedings for an offence under this section it shall be a defence for the accused to prove that he did not know, and had no reason to suspect, that the published material was intended, or likely, to identify the child.
(4)
(5)
For the purposes of this section—
“publish” includes—
(a)
F617include in a programme service (within the meaning of the Broadcasting Act 1990);
(b)
cause to be published; and
“material” includes any picture or representation.
(6)
Any person who contravenes this section shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.
(7)
Subsection (1) is without prejudice to—
F618(a)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)
any other power of a magistrates’ court to sit in private.
(8)
F621(9)
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under subsection (4).
98 Self-incrimination.
(1)
In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from—
(a)
giving evidence on any matter; or
(b)
answering any question put to him in the course of his giving evidence,
on the ground that doing so might incriminate him or his spouse F622or civil partner of an offence.
(2)
A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse F622or civil partner in proceedings for an offence other than perjury.
F62399 .
(1)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F623(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F623(3)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F623(4)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F623(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
100 Restrictions on use of wardship jurisdiction.
(1)
Section 7 of the M34Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.
(2)
No court shall exercise the High Court’s inherent jurisdiction with respect to children—
(a)
so as to require a child to be placed in the care, or put under the supervision, of a local authority;
(b)
so as to require a child to be accommodated by or on behalf of a local authority;
(c)
so as to make a child who is the subject of a care order a ward of court; or
(d)
for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.
(3)
No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.
(4)
The court may only grant leave if it is satisfied that—
(a)
the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
(b)
there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.
(5)
This subsection applies to any order—
(a)
made otherwise than in the exercise of the court’s inherent jurisdiction; and
(b)
which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).
101 Effect of orders as between England and Wales and Northern Ireland, the Channel Islands or the Isle of Man.
(1)
The Secretary of State may make regulations providing—
(a)
for prescribed orders which—
(i)
are made by a court in Northern Ireland; and
(ii)
appear to the Secretary of State to correspond in their effect to orders which may be made under any provision of this Act,
to have effect in prescribed circumstances, for prescribed purposes of this Act, as if they were orders of a prescribed kind made under this Act;
(b)
for prescribed orders which—
(i)
are made by a court in England and Wales; and
(ii)
appear to the Secretary of State to correspond in their effect to orders which may be made under any provision in force in Northern Ireland,
to have effect in prescribed circumstances, for prescribed purposes of the law of Northern Ireland, as if they were orders of a prescribed kind made in Northern Ireland.
(2)
Regulations under subsection (1) may provide for the order concerned to cease to have effect for the purposes of the law of Northern Ireland, or (as the case may be) the law of England and Wales, if prescribed conditions are satisfied.
(3)
The Secretary of State may make regulations providing for prescribed orders which—
(a)
are made by a court in the Isle of Man or in any of the Channel Islands; and
(b)
appear to the Secretary of State to correspond in their effect to orders which may be made under this Act,
to have effect in prescribed circumstances for prescribed purposes of this Act, as if they were orders of a prescribed kind made under this Act.
(4)
Where a child who is in the care of a local authority is lawfully taken to live in Northern Ireland, the Isle of Man or any of the Channel Islands, the care order in question shall cease to have effect if the conditions prescribed in regulations made by the Secretary of State are satisfied.
(5)
Any regulations made under this section may—
(a)
make such consequential amendments (including repeals) in—
(i)
section 25 of the M35Children and Young Persons Act 1969 (transfers between England and Wales and Northern Ireland); or
(ii)
section 26 (transfers between England and Wales and Channel Islands or Isle of Man) of that Act,
as the Secretary of State considers necessary or expedient; and
(b)
modify any provision of this Act, in its application (by virtue of the regulations) in relation to an order made otherwise than in England and Wales.
Search warrants
102 Power of constable to assist in exercise of certain powers to search for children or inspect premises.
(1)
Where, on an application made by any person for a warrant under this section, it appears to the court—
(a)
that a person attempting to exercise powers under any enactment mentioned in subsection (6) has been prevented from doing so by being refused entry to the premises concerned or refused access to the child concerned; or
(b)
that any such person is likely to be so prevented from exercising any such powers,
it may issue a warrant authorising any constable to assist that person in the exercise of those powers, using reasonable force if necessary.
(2)
Every warrant issued under this section shall be addressed to, and executed by, a constable who shall be accompanied by the person applying for the warrant if—
(a)
that person so desires; and
(b)
the court by whom the warrant is issued does not direct otherwise.
(3)
A court granting an application for a warrant under this section may direct that the constable concerned may, in executing the warrant, be accompanied by a registered medical practitioner, registered nurse or F624registered midwife if he so chooses.
F625(3A)
The reference in subsection (3) to a registered midwife is to such a midwife who is also registered in the Specialist Community Public Health Nurses' Part of the register maintained under article 5 of the Nursing and Midwifery Order 2001.
(4)
An application for a warrant under this section shall be made in the manner and form prescribed by rules of court.
(5)
Where—
(a)
an application for a warrant under this section relates to a particular child; and
(b)
it is reasonably practicable to do so,
the application and any warrant granted on the application shall name the child; and where it does not name him it shall describe him as clearly as possible.
(6)
The enactments are—
(b)
paragraph 8(1)(b) and (2)(b) of Schedule 3;
(c)
F628. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General
103 Offences by bodies corporate.
(1)
This section applies where any offence under this Act is committed by a body corporate.
(2)
If the offence is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
104 Regulations and orders.
(1)
Any power of the Lord Chancellor F629, the TreasuryF630, the Secretary of State or the National Assembly for Wales under this Act to make an order, regulations, or rules, except an order under section F63154(2), 56(4)(a), 57(3), 84 or 97(4) or paragraph 1(1) of Schedule 4, shall be exercisable by statutory instrument.
(2)
F635(2A)
Subsection (2) does not apply to a statutory instrument made solely by the National Assembly for Wales.
F636(3)
(3A)
An order under section 4(1B) F639, 4ZA(3) or 17(4) or regulations which fall within subsection (3B) or (3C) shall not be made by the Secretary of State unless a draft of the statutory instrument containing the order or regulations has been laid before, and approved by a resolution of, each House of Parliament.
(3B)
Regulations fall within this subsection if they are the first regulations to be made by the Secretary of State in the exercise of the power conferred by section 23C(5B)(b).
(3C)
Regulations fall within this subsection if they are the first regulations to be made by the Secretary of State in the exercise of the power conferred by paragraph 6(2) of Schedule 2.
(4)
Any statutory instrument made under this Act may—
(a)
make different provision for different cases;
(b)
provide for exemptions from any of its provisions; and
F641104ARegulations and orders made by the Welsh Ministers under Part 3 etc.
(1)
Any power of the Welsh Ministers under Part 3, Part 7 or section 86A to make an order or regulations shall be exercisable by statutory instrument.
(2)
Any such statutory instrument, except one made under section 17(4) or one containing regulations which fall within subsection (4) or (5), shall be subject to annulment in pursuance of a resolution of the National Assembly for Wales.
(3)
An order under section 17(4) or regulations which fall within subsection (4) or (5) shall not be made by the Welsh Ministers unless a draft of the statutory instrument containing the order or regulations has been laid before and approved by a resolution of the National Assembly for Wales.
(4)
Regulations fall within this subsection if they are the first regulations to be made by the Welsh Ministers in the exercise of the power conferred by section 23C(5B)(b).
(5)
Regulations fall within this subsection if they are the first regulations to be made by the Welsh Ministers in the exercise of the power conferred by paragraph 6(2) of Schedule 2.
105 Interpretation.
(1)
In this Act—
“adoption agency” means a body which may be referred to as an adoption agency by virtue of F642section 2 of the Adoption and Children Act 2002;
“bank holiday” means a day which is a bank holiday under the M36Banking and Financial Dealings Act 1971;
F645“care home” has the same meaning as in the Care Standards Act 2000;
“care order” has the meaning given by section 31(11) and also includes any order which by or under any enactment has the effect of, or is deemed to be, a care order for the purposes of this Act; and any reference to a child who is in the care of an authority is a reference to a child who is in their care by virtue of a care order;
“child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen;
“child assessment order” has the meaning given by section 43(2);
F646“child minder” has the meaning given by section 71;
F647“child of the family”, in relation to parties to a marriage, or to two people who are civil partners of each other, means—
(a)
a child of both of them, and
(b)
any other child, other than a child placed with them as foster parents by a local authority or voluntary organisation, who has been treated by both of them as a child of their family.
F648“children's home” has the same meaning as it has for the purposes of the Care Standards Act 2000 (see section 1 of that Act);
“community home” has the meaning given by section 53;
F649“contact activity condition” has the meaning given by section 11C;
F650“contact activity direction” has the meaning given by section 11A;
“contact order” has the meaning given by section 8(1);
“day care” F651. . . has the same meaning as in section 18;
“disabled”, in relation to a child, has the same meaning as in section 17(11);
F652. . .
“domestic premises” has the meaning given by section 71(12);
F653“dwelling-house” includes—
(a)
any building or part of a building which is occupied as a dwelling;
(b)
any caravan, house-boat or structure which is occupied as a dwelling;
and any yard, garden, garage or outhouse belonging to it and occupied with it;
F654“education functions” has the meaning given by section 579(1) of the Education Act 1996;
“education supervision order” has the meaning given in section 36;
“emergency protection order” means an order under section 44;
F655“enforcement order” has the meaning given by section 11J;
“family assistance order” has the meaning given in section 16(2);
“family proceedings” has the meaning given by section 8(3);
“functions” includes powers and duties;
“guardian of a child” means a guardian (other than a guardian of the estate of a child) appointed in accordance with the provisions of section 5;
“harm” has the same meaning as in section 31(9) and the question of whether harm is significant shall be determined in accordance with section 31(10);
F656. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“health service hospital” F657means a health service hospital within the meaning given by the National Health Service Act 2006 or the National Health Service (Wales) Act 2006
“hospital” F658. . . has the same meaning as in the M37Mental Health Act 1983, except that it does not include a special hospital within the meaning of that Act;
“ill-treatment” has the same meaning as in section 31(9);
F659“income-based jobseeker’s allowance” has the same meaning as in the Jobseekers Act 1995;
F660“” means an income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance);
F661“independent hospital”
(a)
in relation to England, means a hospital as defined by section 275 of the National Health Service Act 2006 that is not a health service hospital as defined by that section; and
(b)
in relation to Wales, has the same meaning as in the Care Standards Act 2000;
“independent school” has the same meaning as in F662the Education Act 1996;
“local authority” means, in relation to England F663. . ., the council of a county, a metropolitan district, a London Borough or the Common Council of the City of London F664in relation to Wales, the council of a county or a county borough and, in relation to Scotland, a local authority within the meaning of section 1(2) of the M38Social Work (Scotland) Act 1968;
F665“local authority foster parent” has the meaning given in section 22C(12);
F666. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F667“Local Health Board” means a Local Health Board established under section 11 of the National Health Service (Wales) Act 2006;
“local housing authority” has the same meaning as in the M39Housing Act 1985;
F668“mental nursing home” has the same meaning as in the M40Registered Homes Act 1984;
F669“nursing home” has the same meaning as in the Act of 1984;
F670“officer of the Service” has the same meaning as in the Criminal Justice and Court Services Act 2000;
“parental responsibility” has the meaning given in section 3;
“prescribed” means prescribed by regulations made under this Act;
F673“private children’s home” means a children’s home in respect of which a person is registered under Part II of the Care Standards Act 2000 which is not a community home or a voluntary home;
“privately fostered child” and “to foster a child privately” have the same meaning as in section 66;
“prohibited steps order” has the meaning given by section 8(1);
F676. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F677“registered children’s home” has the same meaning as in section 63;
“registered pupil” has the same meaning as in F662the Education Act 1996;
“relative”, in relation to a child, means a grandparent, brother, sister, uncle or aunt (whether of the full blood or half blood or F678by marriage or civil partnership) or step-parent;
“residence order” has the meaning given by section 8(1);
“responsible person”, in relation to a child who is the subject of a supervision order, has the meaning given in paragraph 1 of Schedule 3;
“school” has the same meaning as in F662the Education Act 1996 or, in relation to Scotland, in the M41Education (Scotland) Act 1980;
F681“section 31A plan” has the meaning given by section 31A(6);
“service”, in relation to any provision made under Part III, includes any facility;
“signed”, in relation to any person, includes the making by that person of his mark;
“special educational needs” has the same meaning as in F682the Education Act 1996;
F683“special guardian” and “special guardianship order” have the meaning given by section 14A;
“specific issue order” has the meaning given by section 8(1);
“supervision order” has the meaning given by section 31(11);
“supervised child” and “supervisor”, in relation to a supervision order or an education supervision order, mean respectively the child who is (or is to be) under supervision and the person under whose supervision he is (or is to be) by virtue of the order;
“upbringing”, in relation to any child, includes the care of the child but not his maintenance;
“voluntary home” has the meaning given by section 60;
“voluntary organisation” means a body (other than a public or local authority) whose activities are not carried on for profit.
F688“Welsh family proceedings officer” has the meaning given by section 35 of the Children Act 2004.
(2)
References in this Act to a child whose father and mother were, or (as the case may be) were not, married to each other at the time of his birth must be read with section 1 of the M42Family Law Reform Act 1987 (which extends the meaning of such references).
(3)
References in this Act to—
(a)
a person with whom a child lives, or is to live, as the result of a residence order; or
(b)
a person in whose favour a residence order is in force,
shall be construed as references to the person named in the order as the person with whom the child is to live.
(4)
References in this Act to a child who is looked after by a local authority have the same meaning as they have (by virtue of section 22) in Part III.
(5)
References in this Act to accommodation provided by or on behalf of a local authority are references to accommodation so provided in the exercise of functions F689of that or any other local authority which are social services functions within the meaning of the M43Local Authority Social Services Act 1970.
(5A)
F690. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F691(5B)
References in this Act to acting as a child minder and to a child minder shall be construed, in relation to Scotland, in accordance with section 2(17) of the Regulation of Care (Scotland) Act 2001 (asp 8).
(6)
In determining the “ordinary residence” of a child for any purpose of this Act, there shall be disregarded any period in which he lives in any place—
(a)
which is a school or other institution;
(b)
in accordance with the requirements of a supervision order under this Act F692. . .
F693(ba)
in accordance with the requirements of a youth rehabilitation order under Part 1 of the Criminal Justice and Immigration Act 2008; or
(c)
while he is being provided with accommodation by or on behalf of a local authority.
(7)
References in this Act to children who are in need shall be construed in accordance with section 17.
(8)
Any notice or other document required under this Act to be served on any person may be served on him by being delivered personally to him, or being sent by post to him in a registered letter or by the recorded delivery service at his proper address.
(9)
Any such notice or other document required to be served on a body corporate or a firm shall be duly served if it is served on the secretary or clerk of that body or a partner of that firm.
(10)
For the purposes of this section, and of section 7 of the M44Interpretation Act 1978 in its application to this section, the proper address of a person—
(a)
in the case of a secretary or clerk of a body corporate, shall be that of the registered or principal office of that body;
(b)
in the case of a partner of a firm, shall be that of the principal office of the firm; and
(c)
in any other case, shall be the last known address of the person to be served.
106 Financial provisions.
(1)
Any—
(a)
grants made by the Secretary of State under this Act; and
(b)
any other expenses incurred by the Secretary of State under this Act,
shall be payable out of money provided by Parliament.
(2)
Any sums received by the Secretary of State under section 58, or by way of the repayment of any grant made under section 82(2) or (4) shall be paid into the Consolidated Fund.
107 Application to Channel Islands.
Her Majesty may by Order in Council direct that any of the provisions of this Act shall extend to any of the Channel Islands with such exceptions and modifications as may be specified in the Order.
108 Short title, commencement extent etc.
(1)
This Act may be cited as the Children Act 1989.
(2)
Sections 89 and 96(3) to (7), and paragraph 35 of Schedule 12, shall come into force on the passing of this Act and paragraph 36 of Schedule 12 shall come into force at the end of the period of two months beginning with the day on which this Act is passed but otherwise this Act shall come into force on such date as may be appointed by order made by the Lord Chancellor or the Secretary of State, or by both acting jointly.
(3)
Different dates may be appointed for different provisions of this Act and in relation to different cases.
(4)
The minor amendments set out in Schedule 12 shall have effect.
(5)
The consequential amendments set out in Schedule 13 shall have effect.
(6)
The transitional provisions and savings set out in Schedule 14 shall have effect.
(7)
The repeals set out in Schedule 15 shall have effect.
(8)
An order under subsection (2) may make such transitional provisions or savings as appear to the person making the order to be necessary or expedient in connection with the provisions brought into force by the order, including—
(a)
provisions adding to or modifying the provisions of Schedule 14, and
(b)
such adaptations—
(i)
of the provisions brought into force by the order; and
(ii)
of any provisions of this Act then in force,
as appear to him necessary or expedient in consequence of the partial operation of this Act.
(9)
The Lord Chancellor may by order make such amendments or repeals, in such enactments as may be specified in the order, as appear to him to be necessary or expedient in consequence of any provision of this Act.
(10)
This Act shall, in its application to the Isles of Scilly, have effect subject to such exceptions, adaptations and modifications as the Secretary of State may by order prescribe.
(11)
The following provisions of this Act extend to Scotland—
F694section 19;
section 25(8);
section 50(13);
F694Part X;
section 80(1)(h) and (i), (2) to (4), (5)(a), (b) and (h) and (6) to (12);
section 88;
section 104 (so far as necessary);
section 105 (so far as necessary);
subsections (1) to (3), (8) and (9) and this subsection;
in Schedule 2, paragraph 24;
in Schedule 12, paragraphs 1, 7 to 10, 18, 27, 30(a) and 41 to 44;
in Schedule 13, paragraphs 18 to 23, 32, 46, 47, 50, 57, 62, 63, 68(a) and (b) and 71;
in Schedule 14, paragraphs 1, 33 and 34;
in Schedule 15, the entries relating to—
(a)
the M45Custody of Children Act 1891;
(b)
the M46Nurseries and Child Minders Regulation Act 1948;
(c)
section 53(3) of the M47Children and Young Persons Act 1963;
(d)
section 60 of the M48Health Services and Public Health Act 1968;
(e)
the M49Social Work (Scotland) Act 1968;
(f)
the M50Adoption (Scotland) Act 1978;
(g)
the M51Child Care Act 1980;
(h)
the M52Foster Children (Scotland) Act 1984;
(i)
the M53Child Abduction and Custody Act 1985; and
(j)
the M54Family Law Act 1986.
(12)
The following provisions of this Act extend to Northern Ireland—
section 50;
section 101(1)(b), (2) and (5)(a)(i);
subsections (1) to (3), (8) and (9) and this subsection;
in Schedule 2, paragraph 24;
in Schedule 12, paragraphs 7 to 10, 18 and 27;
in Schedule 13, paragraphs 21, 22, 46, 47, 57, 62, 63, 68(c) to (e) and 69 to 71;
in Schedule 14, paragraphs F695. . ., 28 to 30 and 38(a); and
in Schedule 15, the entries relating to the M55Guardianship of Minors Act 1971, the M56Children Act 1975, the Child Care Act 1980, and the Family Law Act 1986.
F696SCHEDULE A1Enforcement orders
Part 1Unpaid work requirement
General
1
Subject to the modifications in paragraphs 2 and 3, Chapter 4 of Part 12 of the Criminal Justice Act 2003 has effect in relation to an enforcement order as it has effect in relation to a community order (within the meaning of Part 12 of that Act).
References to an offender
2
Subject to paragraph 3, references in Chapter 4 of Part 12 of the Criminal Justice Act 2003 to an offender are to be treated as including references to a person subject to an enforcement order.
Specific modifications
3
(1)
The power of the Secretary of State by order under section 197(3) to amend the definition of “responsible officer” and to make consequential amendments includes power to make any amendments of this Part (including further modifications of Chapter 4 of Part 12 of the Criminal Justice Act 2003) that appear to the Secretary of State to be necessary or expedient in consequence of any amendment made by virtue of section 197(3)(a) or (b).
(2)
In section 198 (duties of responsible officer)—
(a)
in subsection (1)—
(i)
at the end of paragraph (a) insert “
and
”
, and
(ii)
omit paragraph (c) and the word “and” immediately preceding it, and
(b)
“(1A)
Subsection (1B) applies where—
(a)
an enforcement order is in force, and
(b)
an officer of the Children and Family Court Advisory and Support Service or a Welsh family proceedings officer (as defined in section 35 of the Children Act 2004) is required under section 11M of the Children Act 1989 to report on matters relating to the order.
(1B)
The officer of the Service or the Welsh family proceedings officer may request the responsible officer to report to him on such matters relating to the order as he may require for the purpose of making a report under section 11M(1)(c) or (d); and it shall be the duty of the responsible officer to comply with such a request.”
(3)
In section 199 (unpaid work requirement)—
(a)
“(b)
not more than 200.”,
(b)
omit subsections (3) and (4), and
(c)
in subsection (5) for the words from the beginning to “of them” substitute “
Where on the same occasion and in relation to the same person the court makes more than one enforcement order imposing an unpaid work requirement
”
.
(4)
“(2)
Subject to paragraphs 7 and 9 of Schedule A1 to the Children Act 1989, the work required to be performed under an unpaid work requirement imposed by an enforcement order must be performed during a period of twelve months.
(2A)
But the period of twelve months is not to run while the enforcement order is suspended under section 11J(9) of the Children Act 1989.”
(5)
Section 217 (requirement to avoid conflict with religious beliefs, etc) is omitted.
(6)
In section 218 (availability of arrangements in local area), subsection (1)(condition for imposition of unpaid work requirement) is omitted.
(7)
Section 219 (provision of copies of relevant order) is omitted.
(8)
The power of the Secretary of State to make rules under section 222 in relation to persons subject to relevant orders may also be exercised in relation to persons subject to enforcement orders.
(9)
The power of the Secretary of State by order under section 223(1) to amend the provision mentioned in section 223(1)(a) includes power to amend this Part so as to make such modifications of Chapter 4 of Part 12 of the Criminal Justice Act 2003 as appear to the Secretary of State to be necessary or expedient in consequence of any amendment of the provision mentioned in section 223(1)(a).
Part 2Revocation, amendment or breach of enforcement order
Power to revoke
4
(1)
This paragraph applies where a court has made an enforcement order in respect of a person's failure to comply with a contact order and the enforcement order is in force.
(2)
The court may revoke the enforcement order if it appears to the court that—
(a)
in all the circumstances no enforcement order should have been made,
(b)
having regard to circumstances which have arisen since the enforcement order was made, it would be appropriate for the enforcement order to be revoked, or
(c)
having regard to the person's satisfactory compliance with the contact order or any contact order that has effect in its place, it would be appropriate for the enforcement order to be revoked.
(3)
The enforcement order may be revoked by the court under sub-paragraph (2) of its own motion or on an application by the person subject to the enforcement order.
(4)
In deciding whether to revoke the enforcement order under sub-paragraph (2)(b), the court is to take into account—
(a)
the extent to which the person subject to the enforcement order has complied with it, and
(b)
the likelihood that the person will comply with the contact order or any contact order that has effect in its place in the absence of an enforcement order.
(5)
In deciding whether to revoke the enforcement order under sub-paragraph (2)(c), the court is to take into account the likelihood that the person will comply with the contact order or any contact order that has effect in its place in the absence of an enforcement order.
Amendment by reason of change of residence
5
(1)
This paragraph applies where a court has made an enforcement order in respect of a person's failure to comply with a contact order and the enforcement order is in force.
(2)
If the court is satisfied that the person has changed, or proposes to change, his residence from the local justice area specified in the order to another local justice area, the court may amend the order by substituting the other area for the area specified.
(3)
The enforcement order may be amended by the court under sub-paragraph (2) of its own motion or on an application by the person subject to the enforcement order.
Amendment of hours specified under unpaid work requirement
6
(1)
This paragraph applies where a court has made an enforcement order in respect of a person's failure to comply with a contact order and the enforcement order is in force.
(2)
If it appears to the court that, having regard to circumstances that have arisen since the enforcement order was made, it would be appropriate to do so, the court may reduce the number of hours specified in the order (but not below the minimum specified in section 199(2)(a) of the Criminal Justice Act 2003).
(3)
In amending the enforcement order under sub-paragraph (2), the court must be satisfied that the effect on the person of the enforcement order as proposed to be amended is no more than is required to secure his compliance with the contact order or any contact order that has effect in its place.
(4)
The enforcement order may be amended by the court under sub-paragraph (2) of its own motion or on an application by the person subject to the enforcement order.
Amendment to extend unpaid work requirement
7
(1)
This paragraph applies where a court has made an enforcement order in respect of a person's failure to comply with a contact order and the enforcement order is in force.
(2)
If it appears to the court that, having regard to circumstances that have arisen since the enforcement order was made, it would be appropriate to do so, the court may, in relation to the order, extend the period of twelve months specified in section 200(2) of the Criminal Justice Act 2003 (as substituted by paragraph 3).
(3)
The period may be extended by the court under sub-paragraph (2) of its own motion or on an application by the person subject to the enforcement order.
Warning and report following breach
8
(1)
This paragraph applies where a court has made an enforcement order in respect of a person's failure to comply with a contact order.
(2)
If the responsible officer is of the opinion that the person has failed without reasonable excuse to comply with the unpaid work requirement imposed by the enforcement order, the officer must give the person a warning under this paragraph unless—
(a)
the person has within the previous twelve months been given a warning under this paragraph in relation to a failure to comply with the unpaid work requirement, or
(b)
the responsible officer reports the failure to the appropriate person.
(3)
A warning under this paragraph must—
(a)
describe the circumstances of the failure,
(b)
state that the failure is unacceptable, and
(c)
inform the person that, if within the next twelve months he again fails to comply with the unpaid work requirement, the warning and the subsequent failure will be reported to the appropriate person.
(4)
The responsible officer must, as soon as practicable after the warning has been given, record that fact.
(5)
If—
(a)
the responsible officer has given a warning under this paragraph to a person subject to an enforcement order, and
(b)
at any time within the twelve months beginning with the date on which the warning was given, the responsible officer is of the opinion that the person has since that date failed without reasonable excuse to comply with the unpaid work requirement imposed by the enforcement order,
the officer must report the failure to the appropriate person.
(6)
A report under sub-paragraph (5) must include a report of the warning given to the person subject to the enforcement order.
(7)
The appropriate person, in relation to an enforcement order, is the officer of the Service or the Welsh family proceedings officer who is required under section 11M to report on matters relating to the enforcement order.
(8)
“Responsible officer”, in relation to a person subject to an enforcement order, has the same meaning as in section 197 of the Criminal Justice Act 2003 (as modified by paragraph 2).
Breach of an enforcement order
9
(1)
This paragraph applies where a court has made an enforcement order (“the first order”) in respect of a person's failure to comply with a contact order.
(2)
If the court is satisfied beyond reasonable doubt that the person has failed to comply with the unpaid work requirement imposed by the first order, the court may—
(a)
amend the first order so as to make the requirement more onerous, or
(b)
make an enforcement order (“the second order”) in relation to the person and (if the first order is still in force) provide for the second order to have effect either in addition to or in substitution for the first order.
(3)
But the court may not exercise its powers under sub-paragraph (2) if it is satisfied that the person had a reasonable excuse for failing to comply with the unpaid work requirement imposed by the first order.
(4)
The burden of proof as to the matter mentioned in sub-paragraph (3) lies on the person claiming to have had a reasonable excuse, and the standard of proof is the balance of probabilities.
(5)
The court may exercise its powers under sub-paragraph (2) in relation to the first order only on the application of a person who would be able to apply under section 11J for an enforcement order if the failure to comply with the first order were a failure to comply with the contact order to which the first order relates.
(6)
Where the person proposing to apply to the court is the child with respect to whom the contact order was made, subsections (6) and (7) of section 11J have effect in relation to the application as they have effect in relation to an application for an enforcement order.
(7)
An application to the court to exercise its powers under sub-paragraph (2) may only be made while the first order is in force.
(8)
The court may not exercise its powers under sub-paragraph (2) in respect of a failure by the person to comply with the unpaid work requirement imposed by the first order unless it is satisfied that before the failure occurred the person had been given (in accordance with rules of court) a copy of, or otherwise informed of the terms of, a notice under section 11N relating to the first order.
(9)
In dealing with the person under sub-paragraph (2)(a), the court may—
(a)
increase the number of hours specified in the first order (but not above the maximum specified in section 199(2)(b) of the Criminal Justice Act 2003, as substituted by paragraph 3);
(b)
in relation to the order, extend the period of twelve months specified in section 200(2) of the Criminal Justice Act 2003 (as substituted by paragraph 3).
(10)
In exercising its powers under sub-paragraph (2), the court must be satisfied that, taking into account the extent to which the person has complied with the unpaid work requirement imposed by the first order, the effect on the person of the proposed exercise of those powers—
(a)
is no more than is required to secure his compliance with the contact order or any contact order that has effect in its place, and
(b)
is no more than is proportionate to the seriousness of his failures to comply with the contact order and the first order.
(11)
Where the court exercises its powers under sub-paragraph (2) by making an enforcement order in relation to a person who has failed to comply with another enforcement order—
(a)
sections 11K(4), 11L(2) to (7), 11M and 11N have effect as regards the making of the order in relation to the person as they have effect as regards the making of an enforcement order in relation to a person who has failed to comply with a contact order;
(b)
this Part of this Schedule has effect in relation to the order so made as if it were an enforcement order made in respect of the failure for which the other order was made.
(12)
Sub-paragraph (2) is without prejudice to section 63(3) of the Magistrates' Courts Act 1980 as it applies in relation to enforcement orders.
Provision relating to amendment of enforcement orders
10
Sections 11L(2) to (7) and 11M have effect in relation to the making of an order under paragraph 6(2), 7(2) or 9(2)(a) amending an enforcement order as they have effect in relation to the making of an enforcement order; and references in sections 11L(2) to (7) and 11M to an enforcement order are to be read accordingly.
SCHEDULE 1 Financial Provision for Children
Orders for financial relief against parents
1
(1)
On an application made by a parent F697, guardian or special guardian of a child, or by any person in whose favour a residence order is in force with respect to a child, the court may—
(a)
in the case of an application to the High Court or a county court, make one or more of the orders mentioned in sub-paragraph (2);
(b)
in the case of an application to a magistrates’ court, make one or both of the orders mentioned in paragraphs (a) and (c) of that sub-paragraph.
(2)
The orders referred to in sub-paragraph (1) are—
(a)
an order requiring either or both parents of a child—
(i)
to make to the applicant for the benefit of the child; or
(ii)
to make to the child himself,
such periodical payments, for such term, as may be specified in the order;
(b)
an order requiring either or both parents of a child—
(i)
to secure to the applicant for the benefit of the child; or
(ii)
to secure to the child himself,
such periodical payments, for such term, as may be so specified;
(c)
an order requiring either or both parents of a child—
(i)
to pay to the applicant for the benefit of the child; or
(ii)
to pay to the child himself,
such lump sum as may be so specified;
(d)
an order requiring a settlement to be made for the benefit of the child, and to the satisfaction of the court, of property—
(i)
to which either parent is entitled (either in possession or in reversion); and
(ii)
which is specified in the order;
(e)
an order requiring either or both parents of a child—
(i)
to transfer to the applicant, for the benefit of the child; or
(ii)
to transfer to the child himself,
such property to which the parent is, or the parents are, entitled (either in possession or in reversion) as may be specified in the order.
(3)
The powers conferred by this paragraph may be exercised at any time.
(4)
An order under sub-paragraph (2)(a) or (b) may be varied or discharged by a subsequent order made on the application of any person by or to whom payments were required to be made under the previous order.
(5)
Where a court makes an order under this paragraph—
(a)
it may at any time make a further such order under sub-paragraph (2)(a), (b) or (c) with respect to the child concerned if he has not reached the age of eighteen;
(b)
it may not make more than one order under sub-paragraph (2)(d) or (e) against the same person in respect of the same child.
(6)
On making, varying or discharging a residence order F698or a special guardianship order the court may exercise any of its powers under this Schedule even though no application has been made to it under this Schedule.
F699(7)
Where a child is a ward of court, the court may exercise any of its powers under this Schedule even though no application has been made to it.
Orders for financial relief for persons over eighteen
2
(1)
If, on an application by a person who has reached the age of eighteen, it appears to the court—
(a)
that the applicant is, will be or (if an order were made under this paragraph) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or
(b)
that there are special circumstances which justify the making of an order under this paragraph,
the court may make one or both of the orders mentioned in sub-paragraph (2).
(2)
The orders are—
(a)
an order requiring either or both of the applicant’s parents to pay to the applicant such periodical payments, for such term, as may be specified in the order;
(b)
an order requiring either or both of the applicant’s parents to pay to the applicant such lump sum as may be so specified.
(3)
An application may not be made under this paragraph by any person if, immediately before he reached the age of sixteen, a periodical payments order was in force with respect to him.
(4)
No order shall be made under this paragraph at a time when the parents of the applicant are living with each other in the same household.
(5)
An order under sub-paragraph (2)(a) may be varied or discharged by a subsequent order made on the application of any person by or to whom payments were required to be made under the previous order.
(6)
In sub-paragraph (3) “periodical payments order” means an order made under—
(a)
this Schedule;
F700(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)
section 23 or 27 of the M57Matrimonial Causes Act 1973;
(d)
Part I of the M58Domestic Proceedings and Magistrates’ Courts Act 1978,
F701(e)
Part 1 or 9 of Schedule 5 to the Civil Partnership Act 2004 (financial relief in the High Court or a county court etc.);
(f)
Schedule 6 to the 2004 Act (financial relief in the magistrates' courts etc.),
for the making or securing of periodical payments.
(7)
The powers conferred by this paragraph shall be exercisable at any time.
(8)
Where the court makes an order under this paragraph it may from time to time while that order remains in force make a further such order.
Duration of orders for financial relief
3
(1)
The term to be specified in an order for periodical payments made under paragraph 1(2)(a) or (b) in favour of a child may begin with the date of the making of an application for the order in question or any later date F702or a date ascertained in accordance with sub-paragraph (5) or (6) but—
(a)
shall not in the first instance extend beyond the child’s seventeenth birthday unless the court thinks it right in the circumstances of the case to specify a later date; and
(b)
shall not in any event extend beyond the child’s eighteenth birthday.
(2)
Paragraph (b) of sub-paragraph (1) shall not apply in the case of a child if it appears to the court that—
(a)
the child is, or will be or (if an order were made without complying with that paragraph) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or
(b)
there are special circumstances which justify the making of an order without complying with that paragraph.
(3)
An order for periodical payments made under paragraph 1(2)(a) or 2(2)(a) shall, notwithstanding anything in the order, cease to have effect on the death of the person liable to make payments under the order.
(4)
Where an order is made under paragraph 1(2)(a) or (b) requiring periodical payments to be made or secured to the parent of a child, the order shall cease to have effect if —
(a)
any parent making or securing the payments; and
(b)
any parent to whom the payments are made or secured,
live together for a period of more than six months.
F703(5)
Where—
(a)
(b)
an application is made for an order under paragraph 1(2)(a) or (b) of this Schedule for periodical payments in favour of that child—
(i)
in accordance with section 8 of the Child Support Act 1991 M59; and
(ii)
before the end of the period of 6 months beginning with the making of the F705current calculation,
the term to be specified in any such order made on that application may be expressed to begin on, or at any time after, the earliest permitted date.
(6)
For the purposes of subsection (5) above, “the earliest permitted date” is whichever is the later of—
(a)
the date 6 months before the application is made; or
(7)
Where—
(a)
(b)
an application is made, before the end of the period of 6 months beginning with the relevant date, for an order for periodical payments under paragraph 1(2)(a) or (b) in favour of a child with respect to whom that F704maintenance calculation was in force immediately before it ceased to have effect F709or was cancelled,
(8)
In sub-paragraph (7)(b)—
(a)
(b)
where the maintenance assessment was cancelled, the relevant date is the later of—
(i)
the date on which the person who cancelled it did so, and
(ii)
the date from which the cancellation first had effect.
Matters to which court is to have regard in making orders for financial relief
4
(1)
In deciding whether to exercise its powers under paragraph 1 or 2, and if so in what manner, the court shall have regard to all the circumstances including—
(a)
the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
(b)
the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
(c)
the financial needs of the child;
(d)
the income, earning capacity (if any), property and other financial resources of the child;
(e)
any physical or mental disability of the child;
(f)
the manner in which the child was being, or was expected to be, educated or trained.
(2)
In deciding whether to exercise its powers under paragraph 1 against a person who is not the mother or father of the child, and if so in what manner, the court shall in addition have regard to—
(a)
whether that person had assumed responsibility for the maintenance of the child and, if so, the extent to which and basis on which he assumed that responsibility and the length of the period during which he met that responsibility;
(b)
whether he did so knowing that the child was not his child;
(c)
the liability of any other person to maintain the child.
(3)
Where the court makes an order under paragraph 1 against a person who is not the father of the child, it shall record in the order that the order is made on the basis that the person against whom the order is made is not the child’s father.
(4)
The persons mentioned in sub-paragraph (1) are—
(a)
in relation to a decision whether to exercise its powers under paragraph 1, any parent of the child;
(b)
in relation to a decision whether to exercise its powers under paragraph 2, the mother and father of the child;
(c)
the applicant for the order;
(d)
any other person in whose favour the court proposes to make the order.
F712(5)
In the case of a child who has a parent by virtue of section 42 or 43 of the Human Fertilisation and Embryology Act 2008, any reference in sub-paragraph (2), (3) or (4) to the child's father is a reference to the woman who is a parent of the child by virtue of that section.
Provisions relating to lump sums
5
(1)
Without prejudice to the generality of paragraph 1, an order under that paragraph for the payment of a lump sum may be made for the purpose of enabling any liabilities or expenses—
(a)
incurred in connection with the birth of the child or in maintaining the child; and
(b)
reasonably incurred before the making of the order,
to be met.
(2)
The amount of any lump sum required to be paid by an order made by a magistrates’ court under paragraph 1 or 2 shall not exceed £1000 or such larger amount as the F713Lord Chancellor may F714, after consulting the Lord Chief Justice, from time to time by order fix for the purposes of this sub-paragraph.
(3)
The power of the court under paragraph 1 or 2 to vary or discharge an order for the making or securing of periodical payments by a parent shall include power to make an order under that provision for the payment of a lump sum by that parent.
(4)
The amount of any lump sum which a parent may be required to pay by virtue of sub-paragraph (3) shall not, in the case of an order made by a magistrates’ court, exceed the maximum amount that may at the time of the making of the order be required to be paid under sub-paragraph (2), but a magistrates’ court may make an order for the payment of a lump sum not exceeding that amount even though the parent was required to pay a lump sum by a previous order under this Act.
(5)
An order made under paragraph 1 or 2 for the payment of a lump sum may provide for the payment of that sum by instalments.
(6)
Where the court provides for the payment of a lump sum by instalments the court, on an application made either by the person liable to pay or the person entitled to receive that sum, shall have power to vary that order by varying—
(a)
the number of instalments payable;
(b)
the amount of any instalment payable;
(c)
the date on which any instalment becomes payable.
F715(7)
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this paragraph.
Variation etc. of orders for periodical payments
6
(1)
In exercising its powers under paragraph 1 or 2 to vary or discharge an order for the making or securing of periodical payments the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order.
(2)
The power of the court under paragraph 1 or 2 to vary an order for the making or securing of periodical payments shall include power to suspend any provision of the order temporarily and to revive any provision so suspended.
(3)
Where on an application under paragraph 1 or 2 for the variation or discharge of an order for the making or securing of periodical payments the court varies the payments required to be made under that order, the court may provide that the payments as so varied shall be made from such date as the court may specify, F716except that, subject to sub-paragraph (9), the date shall not be earlier than the date of the making of the application.
(4)
An application for the variation of an order made under paragraph 1 for the making or securing of periodical payments to or for the benefit of a child may, if the child has reached the age of sixteen, be made by the child himself.
(5)
Where an order for the making or securing of periodical payments made under paragraph 1 ceases to have effect on the date on which the child reaches the age of sixteen, or at any time after that date but before or on the date on which he reaches the age of eighteen, the child may apply to the court which made the order for an order for its revival.
(6)
If on such an application it appears to the court that—
(a)
the child is, will be or (if an order were made under this sub-paragraph) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or
(b)
there are special circumstances which justify the making of an order under this paragraph,
the court shall have power by order to revive the order from such date as the court may specify, not being earlier than the date of the making of the application.
(7)
Any order which is revived by an order under sub-paragraph (5) may be varied or discharged under that provision, on the application of any person by whom or to whom payments are required to be made under the revived order.
(8)
An order for the making or securing of periodical payments made under paragraph 1 may be varied or discharged, after the death of either parent, on the application of a guardian or F717special guardian of the child concerned.
F718(9)
Where—
(a)
an order under paragraph 1(2)(a) or (b) for the making or securing of periodical payments in favour of more than one child (“the order") is in force;
(b)
the order requires payments specified in it to be made to or for the benefit of more than one child without apportioning those payments between them;
(c)
(d)
an application is made, before the end of the period of 6 months beginning with the date on which F720the calculation was made, for the variation or discharge of the order,
the court may, in exercise of its powers under paragraph 1 to vary or discharge the order, direct that the variation or discharge shall take effect from the date on which F720the calculation took effect or any later date.
F721Variation of orders for periodical payments etc. made by magistrates’ courts
F7226A
(1)
Subject to sub-paragraphs (7) and (8), the power of a magistrates’ court—
(a)
under paragraph 1 or 2 to vary an order for the making of periodical payments, or
(b)
under paragraph 5(6) to vary an order for the payment of a lump sum by instalments,
shall include power, if the court is satisfied that payment has not been made in accordance with the order, to exercise one of its powers under paragraphs (a) to (d) of section 59(3) of the Magistrates’ Courts Act 1980.
(2)
In any case where—
(a)
a magistrates’ court has made an order under this Schedule for the making of periodical payments or for the payment of a lump sum by instalments, and
(b)
payments under the order are required to be made by any method of payment falling within section 59(6) of the Magistrates’ Courts Act 1980 (standing order, etc.),
any person entitled to make an application under this Schedule for the variation of the order (in this paragraph referred to as “the applicant”) may apply to F723a magistrates' court acting in the same local justice area as the court which made the order for the order to be varied as mentioned in sub-paragraph (3).
(3)
Subject to sub-paragraph (5), where an application is made under sub-paragraph (2), F724a justices' clerk , after giving written notice (by post or otherwise) of the application to any interested party and allowing that party, within the period of 14 days beginning with the date of the giving of that notice, an opportunity to make written representations, may vary the order to provide that payments under the order shall be made F725F726to the designated officer for the court.
(4)
The clerk may proceed with an application under sub-paragraph (2) notwithstanding that any such interested party as is referred to in sub-paragraph (3) has not received written notice of the application.
(5)
Where an application has been made under sub-paragraph (2), the clerk may, if he considers it inappropriate to exercise his power under sub-paragraph (3), refer the matter to the court which, subject to sub-paragraphs (7) and (8), may vary the order by exercising one of its powers under paragraphs (a) to (d) of section 59(3) of the M60Magistrates’ Courts Act 1980.
(6)
Subsection (4) of section 59 of the Magistrates’ Courts Act 1980 (power of court to order that account be opened) shall apply for the purposes of sub-paragraphs (1) and (5) as it applies for the purposes of that section.
(7)
Before varying the order by exercising one of its powers under paragraphs (a) to (d) of section 59(3) of the Magistrates’ Courts Act 1980, the court shall have regard to any representations made by the parties to the application.
(8)
If the court does not propose to exercise its power F727under paragraph (c), (cc) or (d) of subsection (3) of section 59 of the Magistrates’ Courts Act 1980, the court shall, unless upon representations expressly made in that behalf by the applicant for the order it is satisfied that it is undesirable to do so, exercise its power under paragraph (b) of that subsection.
(9)
None of the powers of the court, or of F728a justices' clerk , conferred by this paragraph shall be exercisable in relation to an order under this Schedule for the making of periodical payments, or for the payment of a lump sum by instalments, which is not a qualifying maintenance order (within the meaning of section 59 of the Magistrates’ Courts Act 1980).
(10)
In sub-paragraphs (3) and (4) “interested party”, in relation to an application made by the applicant under sub-paragraph (2), means a person who would be entitled to be a party to an application for the variation of the order made by the applicant under any other provision of this Schedule if such an application were made.
Variation of orders for secured periodical payments after death of parent
7
(1)
Where the parent liable to make payments under a secured periodical payments order has died, the persons who may apply for the variation or discharge of the order shall include the personal representatives of the deceased parent.
(2)
No application for the variation of the order shall, except with the permission of the court, be made after the end of the period of six months from the date on which representation in regard to the estate of that parent is first taken out.
(3)
The personal representatives of a deceased person against whom a secured periodical payments order was made shall not be liable for having distributed any part of the estate of the deceased after the end of the period of six months referred to in sub-paragraph (2) on the ground that they ought to have taken into account the possibility that the court might permit an application for variation to be made after that period by the person entitled to payments under the order.
(4)
Sub-paragraph (3) shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the variation of an order in accordance with this paragraph.
(5)
Where an application to vary a secured periodical payments order is made after the death of the parent liable to make payments under the order, the circumstances to which the court is required to have regard under paragraph 6(1) shall include the changed circumstances resulting from the death of the parent.
(6)
In considering for the purposes of sub-paragraph (2) the question when representation was first taken out, a grant limited to settled land or to trust property shall be left out of account and a grant limited to real estate or to personal estate shall be left out of account unless a grant limited to the remainder of the estate has previously been made or is made at the same time.
(7)
In this paragraph “secured periodical payments order” means an order for secured periodical payments under paragraph 1(2)(b).
Financial relief under other enactments
8
(1)
This paragraph applies where a residence order F729or a special guardianship order is made with respect to a child at a time when there is in force an order (“the financial relief order") made under any enactment other than this Act and requiring a person to contribute to the child’s maintenance.
(2)
Where this paragraph applies, the court may, on the application of—
(a)
any person required by the financial relief order to contribute to the child’s maintenance; or
(b)
any person in whose favour a residence order F729or a special guardianship order with respect to the child is in force,
make an order revoking the financial relief order, or varying it by altering the amount of any sum payable under that order or by substituting the applicant for the person to whom any such sum is otherwise payable under that order.
Interim orders
9
(1)
Where an application is made under paragraph 1 or 2 the court may, at any time before it disposes of the application, make an interim order—
(a)
requiring either or both parents to make such periodical payments, at such times and for such term as the court thinks fit; and
(b)
giving any direction which the court thinks fit.
(2)
An interim order made under this paragraph may provide for payments to be made from such date as the court may specify F730except that, subject to paragraph 3(5) and (6), the date shall not be earlier than the date of the making of the application under paragraph 1 or 2.
(3)
An interim order made under this paragraph shall cease to have effect when the application is disposed of or, if earlier, on the date specified for the purposes of this paragraph in the interim order.
(4)
An interim order in which a date has been specified for the purposes of sub-paragraph (3) may be varied by substituting a later date.
Alteration of maintenance agreements
10
(1)
In this paragraph and in paragraph 11 “maintenance agreement” means any agreement in writing made with respect to a child, whether before or after the commencement of this paragraph, which—
(a)
is or was made between the father and mother of the child; and
(b)
contains provision with respect to the making or securing of payments, or the disposition or use of any property, for the maintenance or education of the child,
and any such provisions are in this paragraph, and paragraph 11, referred to as “financial arrangements”.
(2)
F731Subject to sub-paragraph (2A), where a maintenance agreement is for the time being subsisting and each of the parties to the agreement is for the time being either domiciled or resident in England and Wales, then, either party may apply to the court for an order under this paragraph.
F732(2A)
If an application or part of an application relates to a matter where jurisdiction falls to be determined by reference to the jurisdictional requirements of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011—
(a)
the requirement as to domicile or residence in sub-paragraph (2) does not apply to the application or that part of it, but
(b)
the court may not entertain the application or that part of it unless it has jurisdiction to do so by virtue of that Regulation and that Schedule.
(2B)
In sub-paragraph (2A), “the Maintenance Regulation ” means Council Regulation (EC) No 4/2009 including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark.
(3)
If the court to which the application is made is satisfied either—
(a)
that, by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made (including a change foreseen by the parties when making the agreement), the agreement should be altered so as to make different financial arrangements; or
(b)
that the agreement does not contain proper financial arrangements with respect to the child,
then that court may by order make such alterations in the agreement by varying or revoking any financial arrangements contained in it as may appear to it to be just having regard to all the circumstances.
(4)
If the maintenance agreement is altered by an order under this paragraph, the agreement shall have effect thereafter as if the alteration had been made by agreement between the parties and for valuable consideration.
(5)
Where a court decides to make an order under this paragraph altering the maintenance agreement—
(a)
by inserting provision for the making or securing by one of the parties to the agreement of periodical payments for the maintenance of the child; or
(b)
by increasing the rate of periodical payments required to be made or secured by one of the parties for the maintenance of the child,
then, in deciding the term for which under the agreement as altered by the order the payments or (as the case may be) the additional payments attributable to the increase are to be made or secured for the benefit of the child, the court shall apply the provisions of sub-paragraphs (1) and (2) of paragraph 3 as if the order were an order under paragraph 1(2)(a) or (b).
(6)
A magistrates’ court shall not entertain an application under sub-paragraph (2) unless both the parties to the agreement are resident in England and Wales and F733the court acts in, or is authorised by the Lord Chancellor to act for, a local justice area in which at least one of the parties is resident , and shall not have power to make any order on such an application except—
(a)
in a case where the agreement contains no provision for periodical payments by either of the parties, an order inserting provision for the making by one of the parties of periodical payments for the maintenance of the child;
(b)
in a case where the agreement includes provision for the making by one of the parties of periodical payments, an order increasing or reducing the rate of, or terminating, any of those payments.
(7)
For the avoidance of doubt it is hereby declared that nothing in this paragraph affects any power of a court before which any proceedings between the parties to a maintenance agreement are brought under any other enactment to make an order containing financial arrangements or any right of either party to apply for such an order in such proceedings.
F734(8)
In the case of a child who has a parent by virtue of section 42 or 43 of the Human Fertilisation and Embryology Act 2008, the reference in sub-paragraph (1)(a) to the child's father is a reference to the woman who is a parent of the child by virtue of that section.
11
(1)
Where a maintenance agreement provides for the continuation, after the death of one of the parties, of payments for the maintenance of a child and that party dies domiciled in England and Wales, the surviving party or the personal representatives of the deceased party may apply to the High Court or a county court for an order under paragraph 10.
(2)
If a maintenance agreement is altered by a court on an application under this paragraph, the agreement shall have effect thereafter as if the alteration had been made, immediately before the death, by agreement between the parties and for valuable consideration.
(3)
An application under this paragraph shall not, except with leave of the High Court or a county court, be made after the end of the period of six months beginning with the day on which representation in regard to the estate of the deceased is first taken out.
(4)
In considering for the purposes of sub-paragraph (3) the question when representation was first taken out, a grant limited to settled land or to trust property shall be left out of account and a grant limited to real estate or to personal estate shall be left out of account unless a grant limited to the remainder of the estate has previously been made or is made at the same time.
(5)
A county court shall not entertain an application under this paragraph, or an application for leave to make an application under this paragraph, unless it would have jurisdiction to hear and determine proceedings for an order under section 2 of the M61Inheritance (Provision for Family and Dependants) Act 1975 in relation to the deceased’s estate by virtue of section 25 of the M62County Courts Act 1984 (jurisdiction under the Act of 1975).
(6)
The provisions of this paragraph shall not render the personal representatives of the deceased liable for having distributed any part of the estate of the deceased after the expiry of the period of six months referred to in sub-paragraph (3) on the ground that they ought to have taken into account the possibility that a court might grant leave for an application by virtue of this paragraph to be made by the surviving party after that period.
(7)
Sub-paragraph (6) shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this paragraph.
Enforcement of orders for maintenance
12
(1)
Any person for the time being under an obligation to make payments in pursuance of any order for the payment of money made by a magistrates’ court under this Act shall give notice of any change of address to such person (if any) as may be specified in the order.
(2)
Any person failing without reasonable excuse to give such a notice shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.
(3)
An order for the payment of money made by a magistrates’ court under this Act shall be enforceable as a magistrates’ court maintenance order within the meaning of section 150(1) of the M63Magistrates’ Courts Act 1980.
Direction for settlement of instrument by conveyancing counsel
13
Where the High Court or a county court decides to make an order under this Act for the securing of periodical payments or for the transfer or settlement of property, it may direct that the matter be referred to one of the conveyancing counsel of the court to settle a proper instrument to be executed by all necessary parties.
Financial provision for child resident in country outside England and Wales
F73514
(1)
If an application under paragraph 1 or 2, or part of such an application, relates to a matter where jurisdiction falls to be determined by reference to the jurisdictional requirements of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, the court may not entertain the application or that part of it unless it has jurisdiction to do so by virtue of that Regulation and that Schedule.
(2)
In sub-paragraph (1), “the Maintenance Regulation ” means Council Regulation (EC) No 4/2009 including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark.
Local authority contribution to child’s maintenance
15
(1)
Where a child lives, or is to live, with a person as the result of a residence order, a local authority may make contributions to that person towards the cost of the accommodation and maintenance of the child.
(2)
Sub-paragraph (1) does not apply where the person with whom the child lives, or is to live, is a parent of the child or the husband or wife F736or civil partner of a parent of the child.
Interpretation
16
(1)
In this Schedule “child” includes, in any case where an application is made under paragraph 2 or 6 in relation to a person who has reached the age of eighteen, that person.
F737(2)
In this Schedule, except paragraphs 2 and 15, “parent” includes—
(a)
any party to a marriage (whether or not subsisting) in relation to whom the child concerned is a child of the family, and
(b)
any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child concerned is a child of the family;
and for this purpose any reference to either parent or both parents shall be read as a reference to any parent of his and to all of his parents.
F738(3)
In this Schedule, “F739maintenance calculation” has the same meaning as it has in the Child Support Act 1991 by virtue of section 54 of that Act as read with any regulations in force under that section.
SCHEDULE 2 Local Authority Support for Children and Families
Part IProvision of Services for Families
Identification of children in need and provision of information
1
(1)
Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area.
(2)
Every local authority shall—
(a)
publish information—
(i)
about services provided by them under sections 17, 18, F74020, 23B to 23D, 24A and 24B; and
(ii)
where they consider it appropriate, about the provision by others (including, in particular, voluntary organisations) of services which the authority have power to provide under those sections; and
(b)
take such steps as are reasonably practicable to ensure that those who might benefit from the services receive the information relevant to them.
F741Children’s services plans
1A
F742. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Maintenance of a register of disabled children
2
(1)
Every local authority shall open and maintain a register of disabled children within their area.
(2)
The register may be kept by means of a computer.
Assessment of children’s needs
3
Where it appears to a local authority that a child within their area is in need, the authority may assess his needs for the purposes of this Act at the same time as any assessment of his needs is made under—
(a)
the M64Chronically Sick and Disabled Persons Act 1970;
(b)
F743Part IV of the Education Act 1996;
(c)
the M65Disabled Persons (Services, Consultation and Representation) Act 1986; or
(d)
any other enactment.
Prevention of neglect and abuse
4
(1)
Every local authority shall take reasonable steps, through the provision of services under Part III of this Act, to prevent children within their area suffering ill-treatment or neglect.
(2)
Where a local authority believe that a child who is at any time within their area—
(a)
is likely to suffer harm; but
(b)
lives or proposes to live in the area of another local authority
they shall inform that other local authority.
(3)
When informing that other local authority they shall specify—
(a)
the harm that they believe he is likely to suffer; and
(b)
(if they can) where the child lives or proposes to live.
Provision of accommodation in order to protect child
5
(1)
Where—
(a)
it appears to a local authority that a child who is living on particular premises is suffering, or is likely to suffer, ill treatment at the hands of another person who is living on those premises; and
(b)
that other person proposes to move from the premises,
the authority may assist that other person to obtain alternative accommodation.
(2)
Assistance given under this paragraph may be in cash.
(3)
Subsections (7) to (9) of section 17 shall apply in relation to assistance given under this paragraph as they apply in relation to assistance given under that section.
Provision for disabled children
6
F744(1)
Every local authority shall provide services designed—
(a)
to minimise the effect on disabled children within their area of their disabilities; F745and
(b)
to give such children the opportunity to lead lives which are as normal as possible.F746; and
(c)
to assist individuals who provide care for such children to continue to do so, or to do so more effectively, by giving them breaks from caring.
F747(2)
The duty imposed by sub-paragraph (1)(c) shall be performed in accordance with regulations made by the appropriate national authority.
Provision to reduce need for care proceedings etc.
7
Every local authority shall take reasonable steps designed—
(a)
to reduce the need to bring—
(i)
proceedings for care or supervision orders with respect to children within their area;
(ii)
criminal proceedings against such children;
(iii)
any family or other proceedings with respect to such children which might lead to them being placed in the authority’s care; or
(iv)
proceedings under the inherent jurisdiction of the High Court with respect to children;
(b)
to encourage children within their area not to commit criminal offences; and
(c)
to avoid the need for children within their area to be placed in secure accommodation.
Provision for children living with their families
8
Every local authority shall make such provision as they consider appropriate for the following services to be available with respect to children in need within their area while they are living with their families—
(a)
advice, guidance and counselling;
(b)
occupational, social, cultural or recreational activities;
(c)
home help (which may include laundry facilities);
(d)
facilities for, or assistance with, travelling to and from home for the purpose of taking advantage of any other service provided under this Act or of any similar service;
(e)
assistance to enable the child concerned and his family to have a holiday.
F748Provision for accommodated children
8A
(1)
Every local authority shall make provision for such services as they consider appropriate to be available with respect to accommodated children.
(2)
“Accommodated children” are those children in respect of whose accommodation the local authority have been notified under section 85 or 86.
(3)
The services shall be provided with a view to promoting contact between each accommodated child and that child's family.
(4)
The services may, in particular, include—
(a)
advice, guidance and counselling;
(b)
services necessary to enable the child to visit, or to be visited by, members of the family;
(c)
assistance to enable the child and members of the family to have a holiday together.
(5)
Nothing in this paragraph affects the duty imposed by paragraph 10.
Family centres
9
(1)
Every local authority shall provide such family centres as they consider appropriate in relation to children within their area.
(2)
“Family centre” means a centre at which any of the persons mentioned in sub-paragraph (3) may—
(a)
attend for occupational, social, cultural or recreational activities;
(b)
attend for advice, guidance or counselling; or
(c)
be provided with accommodation while he is receiving advice, guidance or counselling.
(3)
The persons are—
(a)
a child;
(b)
his parents;
(c)
any person who is not a parent of his but who has parental responsibility for him;
(d)
any other person who is looking after him.
Maintenance of the family home
10
Every local authority shall take such steps as are reasonably practicable, where any child within their area who is in need and whom they are not looking after is living apart from his family—
(a)
to enable him to live with his family; or
(b)
to promote contact between him and his family,
if, in their opinion, it is necessary to do so in order to safeguard or promote his welfare.
Duty to consider racial groups to which children in need belong
11
Every local authority shall, in making any arrangements—
(a)
for the provision of day care within their area; or
(b)
designed to encourage persons to act as local authority foster parents,
have regard to the different racial groups to which children within their area who are in need belong.
Part II Children Looked After By Local Authorities
Regulations as to placing of children with local authority foster parents
F74912
Regulations under section 23(2)(a) may, in particular, make provision—
(a)
with regard to the welfare of children placed with local authority foster parents;
(b)
as to the arrangements to be made by local authorities in connection with the health and education of such children;
(c)
as to the records to be kept by local authorities;
(d)
for securing that a child is not placed with a local authority foster parent unless that person is for the time being approved as a local authority foster parent by such local authority as may be prescribed;
(e)
for securing that where possible the local authority foster parent with whom a child is to be placed is—
(i)
of the same religious persuasion as the child; or
(ii)
gives an undertaking that the child will be brought up in that religious persuasion;
(f)
for securing that children placed with local authority foster parents, and the premises in which they are accommodated, will be supervised and inspected by a local authority and that the children will be removed from those premises if their welfare appears to require it;
(g)
as to the circumstances in which local authorities may make arrangements for duties imposed on them by the regulations to be discharged, on their behalf.
Regulations as to arrangements under section 23(2)(f)
F75013
Regulations under section 23(2)(f) may, in particular, make provision as to—
(a)
the persons to be notified of any proposed arrangements;
(b)
the opportunities such persons are to have to make representations in relation to the arrangements proposed;
(c)
the persons to be notified of any proposed changes in arrangements;
(d)
the records to be kept by local authorities;
(e)
the supervision by local authorities of any arrangements made.
Regulations as to conditions under which child in care is allowed to live with parent, etc.
F75114
Regulations under section 23(5) may, in particular, impose requirements on a local authority as to—
(a)
the making of any decision by a local authority to allow a child to live with any person falling within section 23(4) (including requirements as to those who must be consulted before the decision is made, and those who must be notified when it has been made);
(b)
the supervision or medical examination of the child concerned;
(c)
the removal of the child, in such circumstances as may be prescribed, from the care of the person with whom he has been allowed to live.
F752(d)
the records to be kept by local authorities.
F753Regulations as to conditions under which child in care is allowed to live with parent, etc
12A
Regulations under section 22C may, in particular, impose requirements on a local authority as to—
(a)
the making of any decision by a local authority to allow a child in their care to live with any person falling within section 22C(3) (including requirements as to those who must be consulted before the decision is made and those who must be notified when it has been made);
(b)
the supervision or medical examination of the child concerned;
(c)
the removal of the child, in such circumstances as may be prescribed, from the care of the person with whom the child has been allowed to live;
(d)
the records to be kept by local authorities.
Regulations as to placements of a kind specified in section 22C(6)(d)
12B
Regulations under section 22C as to placements of the kind specified in section 22C(6)(d) may, in particular, make provision as to—
(a)
the persons to be notified of any proposed arrangements;
(b)
the opportunities such persons are to have to make representations in relation to the arrangements proposed;
(c)
the persons to be notified of any proposed changes in arrangements;
(d)
the records to be kept by local authorities;
(e)
the supervision by local authorities of any arrangements made.
Placements out of area
12C
Regulations under section 22C may, in particular, impose requirements which a local authority must comply with—
(a)
before a child looked after by them is provided with accommodation at a place outside the area of the authority; or
(b)
if the child's welfare requires the immediate provision of such accommodation, within such period of the accommodation being provided as may be prescribed.
Avoidance of disruption in education
12D
(1)
Regulations under section 22C may, in particular, impose requirements which a local authority must comply with before making any decision concerning a child's placement if he is in the fourth key stage.
(2)
A child is “in the fourth key stage” if he is a pupil in the fourth key stage for the purposes of Part 6 or 7 of the Education 2002 (see section 82 and 103 of that Act).
Regulations as to placing of children with local authority foster parents
12E
Regulations under section 22C may, in particular, make provision—
(a)
with regard to the welfare of children placed with local authority foster parents;
(b)
as to the arrangements to be made by local authorities in connection with the health and education of such children;
(c)
as to the records to be kept by local authorities;
(d)
for securing that where possible the local authority foster parent with whom a child is to be placed is—
(i)
of the same religious persuasion as the child; or
(ii)
gives an undertaking that the child will be brought up in that religious persuasion;
(e)
for securing the children placed with local authority foster parents, and the premises in which they are accommodated, will be supervised and inspected by a local authority and that the children will be removed from those premises if their welfare appears to require it.
12F
(1)
Regulations under section 22C may, in particular, also make provision—
(a)
for securing that a child is not placed with a local authority foster parent unless that person is for the time being approved as a local authority foster parent by such local authority as may be prescribed;
(b)
establishing a procedure under which any person in respect of whom a qualifying determination has been made may apply to the appropriate national authority for a review of that determination by a panel constituted by that national authority.
(2)
A determination is a qualifying determination if—
(a)
it relates to the issue of whether a person should be approved, or should continue to be approved, as a local authority foster parent; and
(b)
it is of a prescribed description.
(3)
Regulations made by virtue of sub-paragraph (1)(b) may include provision as to—
(a)
the duties and powers of a panel;
(b)
the administration and procedures of a panel;
(c)
the appointment of members of a panel (including the number, or any limit on the number, of members who may be appointed and any conditions for appointment);
(d)
the payment of fees to members of a panel;
(e)
the duties of any person in connection with a review conducted under the regulations;
(f)
the monitoring of any such reviews.
(4)
Regulations made by virtue of sub-paragraph (3)(e) may impose a duty to pay to the appropriate national authority such sum as that national authority may determine; but such a duty may not be imposed upon a person who has applied for a review of a qualifying determination.
(5)
The appropriate national authority must secure that, taking one financial year with another, the aggregate of the sums which become payable to it under regulations made by virtue of sub-paragraph (4) does not exceed the cost to it of performing its independent review functions.
(6)
The appropriate national authority may make an arrangement with an organisation under which independent review functions are performed by the organisation on the national authority's behalf.
(7)
If the appropriate national authority makes such an arrangement with an organisation, the organisation is to perform its functions under the arrangement in accordance with any general or special directions given by that national authority.
(8)
The arrangement may include provision for payments to be made to the organisation by the appropriate national authority.
(9)
Payments made by the appropriate national authority in accordance with such provision shall be taken into account in determining (for the purpose of sub-paragraph (5)) the cost to that national authority of performing its independent review functions.
(10)
Where the Welsh Ministers are the appropriate national authority, sub-paragraphs (6) and (8) also apply as if references to an organisation included references to the Secretary of State.
(11)
In this paragraph—
“financial year” means a period of twelve months ending with 31st March;
“independent review function” means a function conferred or imposed on a national authority by regulations made by virtue of sub-paragraph (1)(b);
“organisation” includes a public body and a private or voluntary organisation.
12G
Regulations under section 22C may, in particular, also make provision as to the circumstances in which local authorities may make arrangements for duties imposed on them by the regulations to be discharged on their behalf.
Promotion and maintenance of contact between child and family
15
(1)
Where a child is being looked after by a local authority, the authority shall, unless it is not reasonably practicable or consistent with his welfare, endeavour to promote contact between the child and—
(a)
his parents;
(b)
any person who is not a parent of his but who has parental responsibility for him; and
(c)
any relative, friend or other person connected with him.
(2)
Where a child is being looked after by a local authority—
(a)
the authority shall take such steps as are reasonably practicable to secure that—
(i)
his parents; and
(ii)
any person who is not a parent of his but who has parental responsibility for him,
are kept informed of where he is being accommodated; and
(b)
every such person shall secure that the authority are kept informed of his or her address.
(3)
Where a local authority (“the receiving authority") take over the provision of accommodation for a child from another local authority (“the transferring authority") under section 20(2)—
(a)
the receiving authority shall (where reasonably practicable) inform—
(i)
the child’s parents; and
(ii)
any person who is not a parent of his but who has parental responsibility for him;
(b)
sub-paragraph (2)(a) shall apply to the transferring authority, as well as the receiving authority, until at least one such person has been informed of the change; and
(c)
sub-paragraph (2)(b) shall not require any person to inform the receiving authority of his address until he has been so informed.
(4)
Nothing in this paragraph requires a local authority to inform any person of the whereabouts of a child if—
(a)
the child is in the care of the authority; and
(b)
the authority has reasonable cause to believe that informing the person would prejudice the child’s welfare.
(5)
Any person who fails (without reasonable excuse) to comply with sub-paragraph (2)(b) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.
(6)
It shall be a defence in any proceedings under sub-paragraph (5) to prove that the defendant was residing at the same address as another person who was the child’s parent or had parental responsibility for the child and had reasonable cause to believe that the other person had informed the appropriate authority that both of them were residing at that address.
Visits to or by children: expenses
16
(1)
This paragraph applies where—
(a)
a child is being looked after by a local authority; and
(b)
the conditions mentioned in sub-paragraph (3) are satisfied.
(2)
The authority may—
(a)
make payments to—
(i)
a parent of the child;
(ii)
any person who is not a parent of his but who has parental responsibility for him; or
(iii)
any relative, friend or other person connected with him,
in respect of travelling, subsistence or other expenses incurred by that person in visiting the child; or
(b)
make payments to the child, or to any person on his behalf, in respect of travelling, subsistence or other expenses incurred by or on behalf of the child in his visiting—
(i)
a parent of his;
(ii)
any person who is not a parent of his but who has parental responsibility for him; or
(iii)
any relative, friend or other person connected with him.
(3)
The conditions are that—
(a)
it appears to the authority that the visit in question could not otherwise be made without undue financial hardship; and
(b)
the circumstances warrant the making of the payments.
Appointment of visitor for child who is not being visited
17
F754(1)
Where it appears to a local authority in relation to any child that they are looking after that—
(a)
communication between the child and—
(i)
a parent of his, or
(ii)
any person who is not a parent of his but who has parental responsibility for him,
has been infrequent; or
(b)
he has not visited or been visited by (or lived with) any such person during the preceding twelve months,
and that it would be in the child’s best interests for an independent person to be appointed to be his visitor for the purposes of this paragraph, they shall appoint such a visitor.
(2)
A person so appointed shall—
(a)
have the duty of visiting, advising and befriending the child; and
(b)
be entitled to recover from the authority who appointed him any reasonable expenses incurred by him for the purposes of his functions under this paragraph.
(3)
A person’s appointment as a visitor in pursuance of this paragraph shall be determined if—
(a)
he gives notice in writing to the authority who appointed him that he resigns the appointment; or
(b)
the authority give him notice in writing that they have terminated it.
(4)
The determination of such an appointment shall not prejudice any duty under this paragraph to make a further appointment.
(5)
Where a local authority propose to appoint a visitor for a child under this paragraph, the appointment shall not be made if—
(a)
the child objects to it; and
(b)
the authority are satisfied that he has sufficient understanding to make an informed decision.
(6)
Where a visitor has been appointed for a child under this paragraph, the local authority shall determine the appointment if—
(a)
the child objects to its continuing; and
(b)
the authority are satisfied that he has sufficient understanding to make an informed decision.
(7)
The F755appropriate national authority may make regulations as to the circumstances in which a person appointed as a visitor under this paragraph is to be regarded as independent of the local authority appointing him.
Power to guarantee apprenticeship deeds etc.
18
(1)
While a child is being looked after by a local authority, or is a person qualifying for advice and assistance, the authority may undertake any obligation by way of guarantee under any deed of apprenticeship or articles of clerkship which he enters into.
(2)
Where a local authority have undertaken any such obligation under any deed or articles they may at any time (whether or not they are still looking after the person concerned) undertake the like obligation under any supplemental deed or articles.
Arrangements to assist children to live abroad
19
(1)
A local authority may only arrange for, or assist in arranging for, any child in their care to live outside England and Wales with the approval of the court.
(2)
A local authority may, with the approval of every person who has parental responsibility for the child arrange for, or assist in arranging for, any other child looked after by them to live outside England and Wales.
(3)
The court shall not give its approval under sub-paragraph (1) unless it is satisfied that—
(a)
living outside England and Wales would be in the child’s best interests;
(b)
suitable arrangements have been, or will be, made for his reception and welfare in the country in which he will live;
(c)
the child has consented to living in that country; and
(d)
every person who has parental responsibility for the child has consented to his living in that country.
(4)
Where the court is satisfied that the child does not have sufficient understanding to give or withhold his consent, it may disregard sub-paragraph (3)(c) and give its approval if the child is to live in the country concerned with a parent, guardian, F756special guardian, or other suitable person.
(5)
Where a person whose consent is required by sub-paragraph (3)(d) fails to give his consent, the court may disregard that provision and give its approval if it is satisfied that that person—
(a)
cannot be found;
(b)
is incapable of consenting; or
(c)
is withholding his consent unreasonably.
(6)
F757Section 85 of the Adoption and Children Act 2002 (which imposes restrictions on taking children out of the United Kingdom) shall not apply in the case of any child who is to live outside England and Wales with the approval of the court given under this paragraph.
(7)
Where a court decides to give its approval under this paragraph it may order that its decision is not to have effect during the appeal period.
(8)
In sub-paragraph (7) “the appeal period” means—
(a)
where an appeal is made against the decision, the period between the making of the decision and the determination of the appeal; and
(b)
otherwise, the period during which an appeal may be made against the decision.
F758(9)
This paragraph does not apply to a local authority placing a child for adoption with prospective adopters.
F759 Preparation for ceasing to be looked after
F76019A
It is the duty of the local authority looking after a child to advise, assist and befriend him with a view to promoting his welfare when they have ceased to look after him.
F76119B
(1)
A local authority shall have the following additional functions in relation to an eligible child whom they are looking after.
(2)
In sub-paragraph (1) “eligible child” means, subject to sub-paragraph (3), a child who—
(a)
is aged sixteen or seventeen; and
(b)
has been looked after by a local authority for a prescribed period, or periods amounting in all to a prescribed period, which began after he reached a prescribed age and ended after he reached the age of sixteen.
(3)
The F762appropriate national authority may prescribe—
(a)
additional categories of eligible children; and
(b)
categories of children who are not to be eligible children despite falling within sub-paragraph (2).
(4)
For each eligible child, the local authority shall carry out an assessment of his needs with a view to determining what advice, assistance and support it would be appropriate for them to provide him under this Act—
(a)
while they are still looking after him; and
(b)
after they cease to look after him,
and shall then prepare a pathway plan for him.
(5)
The local authority shall keep the pathway plan under regular review.
(6)
Any such review may be carried out at the same time as a review of the child’s case carried out by virtue of section 26.
(7)
The F763appropriate national authority may by regulations make provision as to assessments for the purposes of sub-paragraph (4).
(8)
The regulations may in particular provide for the matters set out in section 23B(6).
F76419C
A local authority shall arrange for each child whom they are looking after who is an eligible child for the purposes of paragraph 19B to have a personal adviser.
Death of children being looked after by local authorities
20
(1)
If a child who is being looked after by a local authority dies, the authority—
(a)
(b)
shall, so far as is reasonably practicable, notify the child’s parents and every person who is not a parent of his but who has parental responsibility for him;
(c)
may, with the consent (so far as it is reasonably practicable to obtain it) of every person who has parental responsibility for the child, arrange for the child’s body to be buried or cremated; and
(d)
may, if the conditions mentioned in sub-paragraph (2) are satisfied, make payments to any person who has parental responsibility for the child, or any relative, friend or other person connected with the child, in respect of travelling, subsistence or other expenses incurred by that person in attending the child’s funeral.
(2)
The conditions are that—
(a)
it appears to the authority that the person concerned could not otherwise attend the child’s funeral without undue financial hardship; and
(b)
that the circumstances warrant the making of the payments.
(3)
Sub-paragraph (1) does not authorise cremation where it does not accord with the practice of the child’s religious persuasion.
(4)
Where a local authority have exercised their power under sub-paragraph (1)(c) with respect to a child who was under sixteen when he died, they may recover from any parent of the child any expenses incurred by them.
(5)
Any sums so recoverable shall, without prejudice to any other method of recovery, be recoverable summarily as a civil debt.
(6)
Nothing in this paragraph affects any enactment regulating or authorising the burial, cremation or anatomical examination of the body of a deceased person.
Part III Contributions Towards Maintenance of Children Looked After by Local Authorities
Liability to contribute
21
(1)
Where a local authority are looking after a child (other than in the cases mentioned in sub-paragraph (7)) they shall consider whether they should recover contributions towards the child’s maintenance from any person liable to contribute (“a contributor").
(2)
An authority may only recover contributions from a contributor if they consider it reasonable to do so.
(3)
The persons liable to contribute are—
(a)
where the child is under sixteen, each of his parents;
(b)
where he has reached the age of sixteen, the child himself.
(4)
A parent is not liable to contribute during any period when he is in receipt of income support F767underF768Part VII of the Social Security Contributions and Benefits Act 1992,F769 of any element of child tax credit other than the family element, of working tax creditF770F771, of an income-based jobseeker's allowance or of an income-related employment and support allowance.
(5)
A person is not liable to contribute towards the maintenance of a child in the care of a local authority in respect of any period during which the child is F772“living with, under arrangements made by the authority in accordance with section 22C, a parent of his.
(6)
A contributor is not obliged to make any contribution towards a child’s maintenance except as agreed or determined in accordance with this Part of this Schedule.
(7)
The cases are where the child is looked after by a local authority under—
(a)
section 21;
(b)
an interim care order;
(c)
F773section 92 of the Powers of Criminal Courts (Sentencing) Act 2000.
Agreed contributions
22
(1)
Contributions towards a child’s maintenance may only be recovered if the local authority have served a notice (“a contribution notice") on the contributor specifying—
(a)
the weekly sum which they consider that he should contribute; and
(b)
arrangements for payment.
(2)
The contribution notice must be in writing and dated.
(3)
Arrangements for payment shall, in particular, include—
(a)
the date on which liability to contribute begins (which must not be earlier than the date of the notice);
(b)
the date on which liability under the notice will end (if the child has not before that date ceased to be looked after by the authority); and
(c)
the date on which the first payment is to be made.
(4)
The authority may specify in a contribution notice a weekly sum which is a standard contribution determined by them for all children looked after by them.
(5)
The authority may not specify in a contribution notice a weekly sum greater than that which they consider—
(a)
they would normally be prepared to pay if they had placed a similar child with local authority foster parents; and
(b)
it is reasonably practicable for the contributor to pay (having regard to his means).
(6)
An authority may at any time withdraw a contribution notice (without prejudice to their power to serve another).
(7)
Where the authority and the contributor agree—
(a)
the sum which the contributor is to contribute; and
(b)
arrangements for payment,
(whether as specified in the contribution notice or otherwise) and the contributor notifies the authority in writing that he so agrees, the authority may recover summarily as a civil debt any contribution which is overdue and unpaid.
(8)
A contributor may, by serving a notice in writing on the authority, withdraw his agreement in relation to any period of liability falling after the date of service of the notice.
(9)
Sub-paragraph (7) is without prejudice to any other method of recovery.
Contribution orders
23
(1)
Where a contributor has been served with a contribution notice and has—
(a)
failed to reach any agreement with the local authority as mentioned in paragraph 22(7) within the period of one month beginning with the day on which the contribution notice was served; or
(b)
served a notice under paragraph 22(8) withdrawing his agreement,
the authority may apply to the court for an order under this paragraph.
(2)
On such an application the court may make an order (“a contribution order") requiring the contributor to contribute a weekly sum towards the child’s maintenance in accordance with arrangements for payment specified by the court.
(3)
A contribution order—
(a)
shall not specify a weekly sum greater than that specified in the contribution notice; and
(b)
shall be made with due regard to the contributor’s means.
(4)
A contribution order shall not—
(a)
take effect before the date specified in the contribution notice; or
(b)
have effect while the contributor is not liable to contribute (by virtue of paragraph 21); or
(c)
remain in force after the child has ceased to be looked after by the authority who obtained the order.
(5)
An authority may not apply to the court under sub-paragraph (1) in relation to a contribution notice which they have withdrawn.
(6)
Where—
(a)
a contribution order is in force;
(b)
the authority serve another contribution notice; and
(c)
the contributor and the authority reach an agreement under paragraph 22(7) in respect of that other contribution notice,
the effect of the agreement shall be to discharge the order from the date on which it is agreed that the agreement shall take effect.
(7)
Where an agreement is reached under sub-paragraph (6) the authority shall notify the court—
(a)
of the agreement; and
(b)
of the date on which it took effect.
(8)
A contribution order may be varied or revoked on the application of the contributor or the authority.
(9)
In proceedings for the variation of a contribution order, the authority shall specify—
(a)
the weekly sum which, having regard to paragraph 22, they propose that the contributor should contribute under the order as varied; and
(b)
the proposed arrangements for payment.
(10)
Where a contribution order is varied, the order—
(a)
shall not specify a weekly sum greater than that specified by the authority in the proceedings for variation; and
(b)
shall be made with due regard to the contributor’s means.
(11)
An appeal shall lie in accordance with rules of court from any order made under this paragraph.
Enforcement of contribution orders etc.
24
(1)
A contribution order made by a magistrates’ court shall be enforceable as a magistrates’ court maintenance order (within the meaning of section 150(1) of the M66Magistrates’ Courts Act 1980).
(2)
Where a contributor has agreed, or has been ordered, to make contributions to a local authority, any other local authority within whose area the contributor is for the time being living may—
(a)
at the request of the local authority who served the contribution notice; and
(b)
subject to agreement as to any sum to be deducted in respect of services rendered,
collect from the contributor any contributions due on behalf of the authority who served the notice.
(3)
In sub-paragraph (2) the reference to any other local authority includes a reference to—
(a)
a local authority within the meaning of section 1(2) of the M67Social Work (Scotland) Act 1968; and
(b)
a Health and Social Services Board established under Article 16 of the M68Health and Personal Social Services (Northern Ireland) Order 1972.
(4)
The power to collect sums under sub-paragraph (2) includes the power to—
(a)
receive and give a discharge for any contributions due; and
(b)
(if necessary) enforce payment of any contributions,
even though those contributions may have fallen due at a time when the contributor was living elsewhere.
(5)
Any contribution collected under sub-paragraph (2) shall be paid (subject to any agreed deduction) to the local authority who served the contribution notice.
(6)
In any proceedings under this paragraph, a document which purports to be—
(a)
a copy of an order made by a court under or by virtue of paragraph 23; and
shall be evidence of the order.
(7)
In any proceedings under this paragraph, a certificate which—
(a)
purports to be signed by the clerk or some other duly authorised officer of the local authority who obtained the contribution order; and
(b)
states that any sum due to the authority under the order is overdue and unpaid,
shall be evidence that the sum is overdue and unpaid.
Regulations
25
The F776appropriate national authority may make regulations—
(a)
as to the considerations which a local authority must take into account in deciding—
(i)
whether it is reasonable to recover contributions; and
(ii)
what the arrangements for payment should be;
(b)
as to the procedures F777a local authority must follow in reaching agreements with—
(i)
contributors (under paragraphs 22 and 23); and
(ii)
any other local authority (under paragraph 23).
SCHEDULE 3 Supervision Orders
Part I General
Meaning of “responsible person"
1
In this Schedule, “the responsible person”, in relation to a supervised child, means—
(a)
any person who has parental responsibility for the child; and
(b)
any other person with whom the child is living.
Power of supervisor to give directions to supervised child
2
(1)
A supervision order may require the supervised child to comply with any directions given from time to time by the supervisor which require him to do all or any of the following things—
(a)
to live at a place or places specified in the directions for a period or periods so specified;
(b)
to present himself to a person or persons specified in the directions at a place or places and on a day or days so specified;
(c)
to participate in activities specified in the directions on a day or days so specified.
(2)
It shall be for the supervisor to decide whether, and to what extent, he exercises his power to give directions and to decide the form of any directions which he gives.
(3)
Sub-paragraph (1) does not confer on a supervisor power to give directions in respect of any medical or psychiatric examination or treatment (which are matters dealt with in paragraphs 4 and 5).
Imposition of obligations on responsible person
3
(1)
With the consent of any responsible person, a supervision order may include a requirement—
(a)
that he take all reasonable steps to ensure that the supervised child complies with any direction given by the supervisor under paragraph 2;
(b)
that he take all reasonable steps to ensure that the supervised child complies with any requirement included in the order under paragraph 4 or 5;
(c)
that he comply with any directions given by the supervisor requiring him to attend at a place specified in the directions for the purpose of taking part in activities so specified.
(2)
A direction given under sub-paragraph (1)(c) may specify the time at which the responsible person is to attend and whether or not the supervised child is required to attend with him.
(3)
A supervision order may require any person who is a responsible person in relation to the supervised child to keep the supervisor informed of his address, if it differs from the child’s.
Psychiatric and medical examinations
4
(1)
A supervision order may require the supervised child—
(a)
to submit to a medical or psychiatric examination; or
(b)
to submit to any such examination from time to time as directed by the supervisor.
(2)
Any such examination shall be required to be conducted—
(a)
by, or under the direction of, such registered medical practitioner as may be specified in the order;
(b)
at a place specified in the order and at which the supervised child is to attend as a non-resident patient; or
(c)
at—
(i)
a health service hospital; or
(ii)
in the case of a psychiatric examination, a hospital F778, independent hospital or care home,
at which the supervised child is, or is to attend as, a resident patient.
(3)
A requirement of a kind mentioned in sub-paragraph (2)(c) shall not be included unless the court is satisfied, on the evidence of a registered medical practitioner, that—
(a)
the child may be suffering from a physical or mental condition that requires, and may be susceptible to, treatment; and
(b)
a period as a resident patient is necessary if the examination is to be carried out properly.
(4)
No court shall include a requirement under this paragraph in a supervision order unless it is satisfied that—
(a)
where the child has sufficient understanding to make an informed decision, he consents to its inclusion; and
(b)
satisfactory arrangements have been, or can be, made for the examination.
Psychiatric and medical treatment
5
(1)
Where a court which proposes to make or vary a supervision order is satisfied, on the evidence of a registered medical practitioner approved for the purposes of section 12 of the M69Mental Health Act 1983, that the mental condition of the supervised child—
(a)
is such as requires, and may be susceptible to, treatment; but
(b)
is not such as to warrant his detention in pursuance of a hospital order under Part III of that Act,
the court may include in the order a requirement that the supervised child shall, for a period specified in the order, submit to such treatment as is so specified.
(2)
The treatment specified in accordance with sub-paragraph (1) must be—
(a)
by, or under the direction of, such registered medical practitioner as may be specified in the order;
(b)
as a non-resident patient at such a place as may be so specified; or
(c)
as a resident patient in a hospital F779, independent hospital or care home.
(3)
Where a court which proposes to make or vary a supervision order is satisfied, on the evidence of a registered medical practitioner, that the physical condition of the supervised child is such as requires, and may be susceptible to, treatment, the court may include in the order a requirement that the supervised child shall, for a period specified in the order, submit to such treatment as is so specified.
(4)
The treatment specified in accordance with sub-paragraph (3) must be—
(a)
by, or under the direction of, such registered medical practitioner as may be specified in the order;
(b)
as a non-resident patient at such place as may be so specified; or
(c)
as a resident patient in a health service hospital.
(5)
No court shall include a requirement under this paragraph in a supervision order unless it is satisfied—
(a)
where the child has sufficient understanding to make an informed decision, that he consents to its inclusion; and
(b)
that satisfactory arrangements have been, or can be, made for the treatment.
(6)
If a medical practitioner by whom or under whose direction a supervised person is being treated in pursuance of a requirement included in a supervision order by virtue of this paragraph is unwilling to continue to treat or direct the treatment of the supervised child or is of the opinion that—
(a)
the treatment should be continued beyond the period specified in the order;
(b)
the supervised child needs different treatment;
(c)
he is not susceptible to treatment; or
(d)
he does not require further treatment,
the practitioner shall make a report in writing to that effect to the supervisor.
(7)
On receiving a report under this paragraph the supervisor shall refer it to the court, and on such a reference the court may make an order cancelling or varying the requirement.
Part II Miscellaneous
Life of supervision order
6
(1)
Subject to sub-paragraph (2) and section 91, a supervision order shall cease to have effect at the end of the period of one year beginning with the date on which it was made.
(2)
A supervision order shall also cease to have effect if an event mentioned in section 25(1)(a) or (b) of the M70Child Abduction and Custody Act 1985 (termination of existing orders) occurs with respect to the child.
(3)
Where the supervisor applies to the court to extend, or further extend, a supervision order the court may extend the order for such period as it may specify.
(4)
A supervision order may not be extended so as to run beyond the end of the period of three years beginning with the date on which it was made.
Limited life of directions
F7807
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Information to be given to supervisor etc.
8
(1)
A supervision order may require the supervised child—
(a)
to keep the supervisor informed of any change in his address; and
(b)
to allow the supervisor to visit him at the place where he is living.
(2)
The responsible person in relation to any child with respect to whom a supervision order is made shall—
(a)
if asked by the supervisor, inform him of the child’s address (if it is known to him); and
(b)
if he is living with the child, allow the supervisor reasonable contact with the child.
Selection of supervisor
9
(1)
A supervision order shall not designate a local authority as the supervisor unless—
(a)
the authority agree; or
(b)
the supervised child lives or will live within their area.
F781(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F781(3)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F781(4)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F781(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Effect of supervision order on earlier orders
10
The making of a supervision order with respect to any child brings to an end any earlier care or supervision order which—
(a)
was made with respect to that child; and
(b)
would otherwise continue in force.
Local authority functions and expenditure
11
(1)
The Secretary of State may make regulations with respect to the exercise by a local authority of their functions where a child has been placed under their supervision by a supervision order.
(2)
Where a supervision order requires compliance with directions given by virtue of this section, any expenditure incurred by the supervisor for the purposes of the directions shall be defrayed by the local authority designated in the order.
Part III Education supervision orders
Effect of orders
12
(1)
Where an education supervision order is in force with respect to a child, it shall be the duty of the supervisor—
(a)
to advise, assist and befriend, and give directions to—
(i)
the supervised child; and
(ii)
his parents,
in such a way as will, in the opinion of the supervisor, secure that he is properly educated;
(b)
where any such directions given to—
(i)
the supervised child; or
(ii)
a parent of his,
have not been complied with, to consider what further steps to take in the exercise of the supervisor’s powers under this Act.
(2)
Before giving any directions under sub-paragraph (1) the supervisor shall, so far as is reasonably practicable, ascertain the wishes and feelings of—
(a)
the child; and
(b)
his parents,
including, in particular, their wishes as to the place at which the child should be educated.
(3)
When settling the terms of any such directions, the supervisor shall give due consideration—
(a)
having regard to the child’s age and understanding, to such wishes and feelings of his as the supervisor has been able to ascertain; and
(b)
to such wishes and feelings of the child’s parents as he has been able to ascertain.
(4)
Directions may be given under this paragraph at any time while the education supervision order is in force.
13
(1)
Where an education supervision order is in force with respect to a child, the duties of the child’s parents under F782sections 7 and 444 of the Education Act 1996 (duties to secure education of children and to secure regular attendance of registered pupils) shall be superseded by their duty to comply with any directions in force under the education supervision order.
(2)
Where an education supervision order is made with respect to a child—
(a)
any school attendance order—
(i)
made under F783section 437 of the Education Act 1996 with respect to the child; and
(ii)
in force immediately before the making of the education supervision order,
shall cease to have effect; and
(b)
while the education supervision order remains in force, the following provisions shall not apply with respect to the child—
(i)
F784section 437 of that Act (school attendance orders);
(ii)
F785section 9 of that Act (pupils to be educated in accordance with wishes of their parents);
(iii)
F786sections 411 and 423 of that Act (parental preference and appeals against admission decisions);
F787(c)
a youth rehabilitation order made under Part 1 of the Criminal Justice and Immigration Act 2008 with respect to the child, while the education supervision order is in force, may not include an education requirement (within the meaning of that Part);
(d)
any education requirement of a kind mentioned in paragraph (c), which was in force with respect to the child immediately before the making of the education supervision order, shall cease to have effect.
Effect where child also subject to supervision order
14
(1)
This paragraph applies where an education supervision order and a supervision order, or F788youth rehabilitation order (within the meaning of Part 1 of the Criminal Justice and Immigration Act 2008), are in force at the same time with respect to the same child.
(2)
Any failure to comply with a direction given by the supervisor under the education supervision order shall be disregarded if it would not have been reasonably practicable to comply with it without failing to comply with a direction F789or instruction given under the other order.
Duration of orders
15
(1)
An education supervision order shall have effect for a period of one year, beginning with the date on which it is made.
(2)
An education supervision order shall not expire if, before it would otherwise have expired, the court has (on the application of the authority in whose favour the order was made) extended the period during which it is in force.
(3)
Such an application may not be made earlier than three months before the date on which the order would otherwise expire.
(4)
The period during which an education supervision order is in force may be extended under sub-paragraph (2) on more than one occasion.
(5)
No one extension may be for a period of more than three years.
(6)
An education supervision order shall cease to have effect on—
(a)
the child’s ceasing to be of compulsory school age; or
(b)
the making of a care order with respect to the child;
and sub-paragraphs (1) to (4) are subject to this sub-paragraph.
Information to be given to supervisor etc.
16
(1)
An education supervision order may require the child—
(a)
to keep the supervisor informed of any change in his address; and
(b)
to allow the supervisor to visit him at the place where he is living.
(2)
A person who is the parent of a child with respect to whom an education supervision order has been made shall—
(a)
if asked by the supervisor, inform him of the child’s address (if it is known to him); and
(b)
if he is living with the child, allow the supervisor reasonable contact with the child.
Discharge of orders
17
(1)
The court may discharge any education supervision order on the application of—
(a)
the child concerned;
(b)
a parent of his; or
(c)
F790the local authority designated in the order.
(2)
On discharging an education supervision order, the court may direct the local authority within whose area the child lives, or will live, to investigate the circumstances of the child.
Offences
18
(1)
If a parent of a child with respect to whom an education supervision order is in force persistently fails to comply with a direction given under the order he shall be guilty of an offence.
(2)
It shall be a defence for any person charged with such an offence to prove that—
(a)
he took all reasonable steps to ensure that the direction was complied with;
(b)
the direction was unreasonable; or
(c)
he had complied with—
(i)
a requirement included in a supervision order made with respect to the child; or
(ii)
directions given under such a requirement,
and that it was not reasonably practicable to comply both with the direction and with the requirement or directions mentioned in this paragraph.
(3)
A person guilty of an offence under this paragraph shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Persistent failure of child to comply with directions
19
(1)
Where a child with respect to whom an education supervision order is in force persistently fails to comply with any direction given under the order, F791the local authority designated in the order shall notify the appropriate local authority, if different.
(2)
Where a local authority have been notified under sub-paragraph (1) they shall investigate the circumstances of the child.
(3)
In this paragraph “the appropriate local authority” has the same meaning as in section 36.
Miscellaneous
20
The Secretary of State may by regulations make provision modifying, or displacing, the provisions of any enactment about education in relation to any child with respect to whom an education supervision order is in force to such extent as appears to the Secretary of State to be necessary or expedient in consequence of the provision made by this Act with respect to such orders.
Interpretation
21
In this Part of this Schedule “parent” has the same meaning as in F792the Education Act 1996.).
SCHEDULE 4 Management and Conduct of Community Homes
Part I Instruments of Management
Instruments of management for controlled and assisted community homes
1
(1)
The Secretary of State may by order make an instrument of management providing for the constitution of a body of managers for any F793. . . home which is designated as a controlled or assisted community home.
(2)
Sub-paragraph (3) applies where two or more F793. . . homes are designated as controlled community homes or as assisted community homes.
(3)
If—
(a)
those homes are, or are to be, provided by the same voluntary organisation; and
(b)
the same local authority is to be represented on the body of managers for those homes,
a single instrument of management may be made by the Secretary of State under this paragraph constituting one body of managers for those homes or for any two or more of them.
(4)
The number of persons who, in accordance with an instrument of management, constitute the body of managers for a F793. . . home shall be such number (which must be a multiple of three) as may be specified in the instrument.
(5)
The instrument shall provide that the local authority specified in the instrument shall appoint—
(a)
in the case of a F793. . . home which is designated as a controlled community home, two-thirds of the managers; and
(b)
in the case of a F793. . . home which is designated as an assisted community home, one-third of them.
(6)
An instrument of management shall provide that the foundation managers shall be appointed, in such manner and by such persons as may be specified in the instrument—
(a)
so as to represent the interests of the voluntary organisation by which the home is, or is to be, provided; and
(b)
for the purpose of securing that—
(i)
so far as is practicable, the character of the home F794. . . will be preserved; and
(ii)
subject to paragraph 2(3), the terms of any trust deed relating to the home are observed.
(7)
An instrument of management shall come into force on such date as it may specify.
(8)
If an instrument of management is in force in relation to a F793. . . home the home shall be (and be known as) a controlled community home or an assisted community home, according to its designation.
(9)
In this paragraph—
“foundation managers”, in relation to a F793. . . home, means those of the managers of the home who are not appointed by a local authority in accordance with sub-paragraph (5); and
“designated” means designated in accordance with section 53.
2
(1)
An instrument of management shall contain such provisions as the Secretary of State considers appropriate.
(2)
Nothing in the instrument of management shall affect the purposes for which the premises comprising the home are held.
(3)
Without prejudice to the generality of sub-paragraph (1), an instrument of management may contain provisions—
(a)
specifying the nature and purpose of the home (or each of the homes) to which it relates;
(b)
requiring a specified number or proportion of the places in that home (or those homes) to be made available to local authorities and to any other body specified in the instrument; and
(c)
relating to the management of that home (or those homes) and the charging of fees with respect to—
(i)
children placed there; or
(ii)
places made available to any local authority or other body.
(4)
Subject to sub-paragraphs (1) and (2), in the event of any inconsistency between the provisions of any trust deed and an instrument of management, the instrument of management shall prevail over the provisions of the trust deed in so far as they relate to the home concerned.
(5)
After consultation with the voluntary organisation concerned and with the local authority specified in its instrument of management, the Secretary of State may by order vary or revoke any provisions of the instrument.
Part II Management of Controlled and Assisted Community Homes
3
(1)
The management, equipment and maintenance of a controlled community home shall be the responsibility of the local authority specified in its instrument of management.
(2)
The management, equipment and maintenance of an assisted community home shall be the responsibility of the voluntary organisation by which the home is provided.
(3)
In this paragraph—
“home” means a controlled community home or (as the case may be) assisted community home; and
“the managers”, in relation to a home, means the managers constituted by its instrument of management; and
“the responsible body”, in relation to a home, means the local authority or (as the case may be) voluntary organisation responsible for its management, equipment and maintenance.
(4)
The functions of a home’s responsible body shall be exercised through the managers F795, except in so far as, under section 53(3B), any of the accommodation is to be managed by another person..
(5)
Anything done, liability incurred or property acquired by a home’s managers shall be done, incurred or acquired by them as agents of the responsible body F796; and similarly, to the extent that a contract so provides, as respects anything done, liability incurred or property acquired by a person by whom, under section 53(3B), any of the accommodation is to be managed.
(6)
In so far as any matter is reserved for the decision of a home’s responsible body by—
(a)
sub-paragraph (8);
(b)
the instrument of management;
(c)
the service by the body on the managers, or any of them, of a notice reserving any matter,
that matter shall be dealt with by the body and not by the managers.
(7)
In dealing with any matter so reserved, the responsible body shall have regard to any representations made to the body by the managers.
(8)
The employment of persons at a home shall be a matter reserved for the decision of the responsible body.
(9)
Where the instrument of management of a controlled community home so provides, the responsible body may enter into arrangements with the voluntary organisation by which that home is provided whereby, in accordance with such terms as may be agreed between them and the voluntary organisation, persons who are not in the employment of the responsible body shall undertake duties at that home.
(10)
Subject to sub-paragraph (11)—
(a)
where the responsible body for an assisted community home proposes to engage any person to work at that home or to terminate without notice the employment of any person at that home, it shall consult the local authority specified in the instrument of management and, if that authority so direct, the responsible body shall not carry out its proposal without their consent; and
(b)
that local authority may, after consultation with the responsible body, require that body to terminate the employment of any person at that home.
(11)
Paragraphs (a) and (b) of sub-paragraph (10) shall not apply—
(a)
in such cases or circumstances as may be specified by notice in writing given by the local authority to the responsible body; and
(b)
in relation to the employment of any persons or class of persons specified in the home’s instrument of management.
(12)
The accounting year of the managers of a home shall be such as may be specified by the responsible body.
(13)
Before such date in each accounting year as may be so specified, the managers of a home shall submit to the responsible body estimates, in such form as the body may require, of expenditure and receipts in respect of the next accounting year.
(14)
Any expenses incurred by the managers of a home with the approval of the responsible body shall be defrayed by that body.
(15)
The managers of a home shall keep—
(a)
proper accounts with respect to the home; and
(b)
proper records in relation to the accounts.
(16)
Where an instrument of management relates to more than one home, one set of accounts and records may be kept in respect of all the homes to which it relates.
Part III Regulations
4
(1)
The Secretary of State may make regulations—
(a)
as to the placing of children in community homes;
F797(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F797(c)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F798(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F798(3)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 5 Voluntary Homes and Voluntary Organisations
Part I Registration of Voluntary Homes
General
F7991
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Procedure
F8002
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Right to make representations
F8013
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Decision of Secretary of State
F8024
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appeals
F8035
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Notification of particulars with respect to voluntary homes
F8046
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part II Regulations as to Voluntary Homes
Regulations as to conduct of voluntary homes
7
(1)
The F805appropriate national authority may make regulations—
(a)
as to the placing of children in voluntary homes;
F806(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F806(c)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F807(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F807(3)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F807(4)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Disqualification
F8088
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 6F809 Private Children’s Homes
Part I Registration
Application for registration
F8101
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Conditions imposed on registration
F8112
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Annual review of registration
F8123
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Cancellation of registration
F8134
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Procedure
F8145
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Right to make representations
F8156
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Decision of local authority
F8167
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appeals
F8178
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Prohibition on further applications
F8189
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part II Regulations
10
(1)
The Secretary of State may make regulations—
(a)
as to the placing of children in F819private children’s homes;
F820(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F820(c)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2)
The regulations may in particular—
F821(a)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F821(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F821(c)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F821(d)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F821(e)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F821(f)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F821(g)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F821(h)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F821(i)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F821(j)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F821(jj)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F821(k)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(l)
make provision similar to that made by regulations under section 26.
F822(3)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F822(4)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 7 Foster Parents: Limits on Number of Foster Children
Interpretation
1
For the purposes of this Schedule, a person fosters a child if—
(a)
he is a local authority foster parent in relation to the child;
(b)
he is a foster parent with whom the child has been placed by a voluntary organisation; or
(c)
he fosters the child privately.
The usual fostering limit
2
Subject to what follows, a person may not foster more than three children (“the usual fostering limit").
Siblings
3
A person may exceed the usual fostering limit if the children concerned are all siblings with respect to each other.
Exemption by local authority
4
(1)
A person may exceed the usual fostering limit if he is exempted from it by the local authority within whose area he lives.
(2)
In considering whether to exempt a person, a local authority shall have regard, in particular, to—
(a)
the number of children whom the person proposes to foster;
(b)
the arrangements which the person proposes for the care and accommodation of the fostered children;
(c)
the intended and likely relationship between the person and the fostered children;
(d)
the period of time for which he proposes to foster the children; and
(e)
whether the welfare of the fostered children (and of any other children who are or will be living in the accommodation) will be safeguarded and promoted.
(3)
Where a local authority exempt a person, they shall inform him by notice in writing—
(a)
that he is so exempted;
(b)
of the children, described by name, whom he may foster; and
(c)
of any condition to which the exemption is subject.
(4)
A local authority may at any time by notice in writing—
(a)
vary or cancel an exemption; or
(b)
impose, vary or cancel a condition to which the exemption is subject,
and, in considering whether to do so, they shall have regard in particular to the considerations mentioned in sub-paragraph (2).
(5)
The Secretary of State may make regulations amplifying or modifying the provisions of this paragraph in order to provide for cases where children need to be placed with foster parents as a matter of urgency.
Effect of exceeding fostering limit
5
(1)
A person shall cease to be treated F823, for the purposes of this Act and the Care Standards Act 2000 as fostering and shall be treated F823, for the purposes of this Act and the Care Standards Act 2000 as carrying on a children’s home if—
(a)
he exceeds the usual fostering limit; or
(b)
where he is exempted under paragraph 4,—
(i)
he fosters any child not named in the exemption; and
(ii)
in so doing, he exceeds the usual fostering limit.
(2)
Sub-paragraph (1) does not apply if the children concerned are all siblings in respect of each other.
Complaints etc.
6
(1)
Every local authority shall establish a procedure for considering any representations (including any complaint) made to them about the discharge of their functions under paragraph 4 by a person exempted or seeking to be exempted under that paragraph.
(2)
In carrying out any consideration of representations under sub-paragraph (1), a local authority shall comply with any regulations made by the Secretary of State for the purposes of this paragraph.
SCHEDULE 8 Privately Fostered Children
Exemptions
1
A child is not a privately fostered child while he is being looked after by a local authority.
2
(1)
A child is not a privately fostered child while he is in the care of any person—
(a)
in premises in which any—
(i)
parent of his;
(ii)
person who is not a parent of his but who has parental responsibility for him; or
(iii)
person who is a relative of his and who has assumed responsibility for his care,
is for the time being living;
F824(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)
in accommodation provided by or on behalf of any voluntary organisation;
(d)
in any school in which he is receiving full-time education;
(e)
in any health service hospital;
F825(f)
in any care home or independent hospital
(g)
in any home or institution not specified in this paragraph but provided, equipped and maintained by the Secretary of State.
(2)
Sub-paragraph F826(1)(c) to (g) does not apply where the person caring for the child is doing so in his personal capacity and not in the course of carrying out his duties in relation to the establishment mentioned in the paragraph in question.
3
A child is not a privately fostered child while he is in the care of any person in compliance with—
F827(a)
a youth rehabilitation order made under section 1 of the Criminal Justice and Immigration Act 2008;
(b)
a supervision requirement within the meaning of F828Part II of the Children (Scotland) Act 1995.
4
A child is not a privately fostered child while he is liable to be detained, or subject to guardianship, under the M71Mental Health Act 1983.
5
A child is not a privately fostered child while F829he is placed in the care of a person who proposes to adopt him under arrangements made by an adoption agency within the meaning of—
(a)
section 2 of the Adoption and Children Act 2002;
F830(b)
section 119 of the Adoption and Children (Scotland) Act 2007; or
(c)
Article 3 of the Adoption (Northern Ireland) Order 1987
F831or while he is a child in respect of whom a local authority have functions by virtue of regulations under section 83(6)(b) of the Adoption and Children Act 2002 (which relates to children brought into the United Kingdom for adoption), or corresponding functions by virtue of regulations under section 1 of the Adoption (Intercountry Aspects) Act 1999 (regulations to give effect to Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption).
Power of local authority to impose requirements
6
(1)
Where a person is fostering any child privately, or proposes to foster any child privately, the appropriate local authority may impose on him requirements as to—
(a)
the number, age and sex of the children who may be privately fostered by him;
(b)
the standard of the accommodation and equipment to be provided for them;
(c)
the arrangements to be made with respect to their health and safety; and
(d)
particular arrangements which must be made with respect to the provision of care for them,
and it shall be his duty to comply with any such requirement before the end of such period as the authority may specify unless, in the case of a proposal, the proposal is not carried out.
(2)
A requirement may be limited to a particular child, or class of child.
(3)
A requirement (other than one imposed under sub-paragraph (1)(a)) may be limited by the authority so as to apply only when the number of children fostered by the person exceeds a specified number.
(4)
A requirement shall be imposed by notice in writing addressed to the person on whom it is imposed and informing him of—
(a)
the reason for imposing the requirement;
(b)
his right under paragraph 8 to appeal against it; and
(c)
the time within which he may do so.
(5)
A local authority may at any time vary any requirement, impose any additional requirement or remove any requirement.
(6)
In this Schedule—
(a)
“the appropriate local authority” means—
(i)
the local authority within whose area the child is being fostered; or
(ii)
in the case of a proposal to foster a child, the local authority within whose area it is proposed that he will be fostered; and
(b)
“requirement”, in relation to any person, means a requirement imposed on him under this paragraph.
Regulations requiring notification of fostering etc.
7
(1)
The Secretary of State may by regulations make provision as to—
(a)
the circumstances in which notification is required to be given in connection with children who are, have been or are proposed to be fostered privately; and
(b)
the manner and form in which such notification is to be given.
(2)
The regulations may, in particular—
(a)
require any person who is, or proposes to be, involved (whether or not directly) in arranging for a child to be fostered privately to notify the appropriate authority;
(b)
require any person who is—
(i)
a parent of a child; or
(ii)
a person who is not a parent of his but who has parental responsibility for a child,
and who knows that it is proposed that the child should be fostered privately, to notify the appropriate authority;
(c)
require any parent of a privately fostered child, or person who is not a parent of such a child but who has parental responsibility for him, to notify the appropriate authority of any change in his address;
(d)
require any person who proposes to foster a child privately, to notify the appropriate authority of his proposal;
(e)
require any person who is fostering a child privately, or proposes to do so, to notify the appropriate authority of—
(i)
any offence of which he has been convicted;
(ii)
any disqualification imposed on him under section 68; or
(iii)
any prohibition imposed on him under section 69;
(f)
require any person who is fostering a child privately, to notify the appropriate authority of any change in his address;
(g)
require any person who is fostering a child privately to notify the appropriate authority in writing of any person who begins, or ceases, to be part of his household;
(h)
require any person who has been fostering a child privately, but has ceased to do so, to notify the appropriate authority (indicating, where the child has died, that that is the reason).
F8327A
Every local authority must promote public awareness in their area of requirements as to notification for which provision is made under paragraph 7.
Appeals
8
(1)
A person aggrieved by—
(a)
a requirement imposed under paragraph 6;
(b)
a refusal of consent under section 68;
(c)
a prohibition imposed under section 69;
(d)
a refusal to cancel such a prohibition;
(e)
a refusal to make an exemption under paragraph 4 of Schedule 7;
(f)
a condition imposed in such an exemption; or
(g)
a variation or cancellation of such an exemption,
may appeal to the court.
(2)
The appeal must be made within fourteen days from the date on which the person appealing is notified of the requirement, refusal, prohibition, condition, variation or cancellation.
(3)
Where the appeal is against—
(a)
a requirement imposed under paragraph 6;
(b)
a condition of an exemption imposed under paragraph 4 of Schedule 7; or
(c)
a variation or cancellation of such an exemption,
the requirement, condition, variation or cancellation shall not have effect while the appeal is pending.
(4)
Where it allows an appeal against a requirement or prohibition, the court may, instead of cancelling the requirement or prohibition—
(a)
vary the requirement, or allow more time for compliance with it; or
(b)
if an absolute prohibition has been imposed, substitute for it a prohibition on using the premises after such time as the court may specify unless such specified requirements as the local authority had power to impose under paragraph 6 are complied with.
(5)
Any requirement or prohibition specified or substituted by a court under this paragraph shall be deemed for the purposes of Part IX (other than this paragraph) to have been imposed by the local authority under paragraph 6 or (as the case may be) section 69.
(6)
Where it allows an appeal against a refusal to make an exemption, a condition imposed in such an exemption or a variation or cancellation of such an exemption, the court may—
(a)
make an exemption;
(b)
impose a condition; or
(c)
vary the exemption.
(7)
Any exemption made or varied under sub-paragraph (6), or any condition imposed under that sub-paragraph, shall be deemed for the purposes of Schedule 7 (but not for the purposes of this paragraph) to have been made, varied or imposed under that Schedule.
(8)
Nothing in sub-paragraph (1)(e) to (g) confers any right of appeal on—
(a)
a person who is, or would be if exempted under Schedule 7, a local authority foster parent; or
(b)
a person who is, or would be if so exempted, a person with whom a child is placed by a voluntary organisation.
Extension of Part IX to certain school children during holidays
9
(1)
Where a child under sixteen who is a pupil at a school F833. . . lives at the school during school holidays for a period of more than two weeks, Part IX shall apply in relation to the child as if—
(a)
while living at the school, he were a privately fostered child; and
(b)
paragraphs F8342(1)(c) and (d) and 6 were omitted.
(2)
Sub-paragraph (3) applies to any person who proposes to care for and accommodate one or more children at a school in circumstances in which some or all of them will be treated as private foster children by virtue of this paragraph.
(3)
That person shall, not less than two weeks before the first of those children is treated as a private foster child by virtue of this paragraph during the holiday in question, give written notice of his proposal to the local authority within whose area the child is ordinarily resident (“the appropriate authority"), stating the estimated number of the children.
(4)
A local authority may exempt any person from the duty of giving notice under sub-paragraph (3).
(5)
Any such exemption may be granted for a special period or indefinitely and may be revoked at any time by notice in writing given to the person exempted.
(6)
Where a child who is treated as a private foster child by virtue of this paragraph dies, the person caring for him at the school shall, not later than 48 hours after the death, give written notice of it—
(a)
to the appropriate local authority; and
(b)
where reasonably practicable, to each parent of the child and to every person who is not a parent of his but who has parental responsibility for him.
(7)
Where a child who is treated as a foster child by virtue of this paragraph ceases for any other reason to be such a child, the person caring for him at the school shall give written notice of the fact to the appropriate local authority.
Prohibition of advertisements relating to fostering
10
No advertisement indicating that a person will undertake, or will arrange for, a child to be privately fostered shall be published, unless it states that person’s name and address.
Avoidance of insurances on lives of privately fostered children
11
A person who fosters a child privately and for reward shall be deemed for the purposes of the M72Life Assurance Act 1774 to have no interest in the life of the child.
F837SCHEDULE 9
Applications for registration
F8381
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Disqualification from registration
F8392
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exemption of certain schools
F8403
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exemption for other establishments
F8414
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exemption for occasional facilities
F8425
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Certificates of registration
F8436
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Fees for annual inspection of premises
F8447
(1)
Where—
(a)
a person is registered under section 71, and
(b)
the local authority concerned make an annual inspection of the premises in question under section 76,
they shall serve on that person a notice informing him that the inspection is to be carried out and requiring him to pay to them such fee as may be prescribed.
(2)
It shall be a condition of the continued registration of that person under section 71 that the fee is so paid before the expiry of the period of twenty-eight days beginning with the date on which the inspection is carried out.
Co-operation between authorities
F8458
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F846F847 SCHEDULE 9A Child Minding and Day Care for Young ChildrenF848 in Wales
Exemption of certain schools
F8491
(1)
Except in prescribed circumstances, Part XA does not apply to provision of day care within sub-paragraph (2) for any child looked after in—
(a)
a maintained school;
(b)
a school assisted by a F850local authority;
(c)
a school in respect of which payments are made by F851. . . the Assembly under section 485 of the M73Education Act 1996;
(d)
an independent school.
(2)
The provision mentioned in sub-paragraph (1) is provision of day care made by—
(a)
the person carrying on the establishment in question as part of the establishment’s activities; or
(b)
a person employed to work at that establishment and authorised to make that provision as part of the establishment’s activities.
(3)
In sub-paragraph (1)—
“assisted” has the same meaning as in the M74Education Act 1996;
“maintained school” has the meaning given by section 20(7) of the M75School Standards and Framework Act 1998.
Exemption for other establishments
F8522
(1)
Part XA does not apply to provision of day care within sub-paragraph (2) for any child looked after—
(a)
in an appropriate children’s home;
(b)
in a care home;
(c)
as a patient in a hospital (within the meaning of the Care Standards Act 2000);
(d)
in a residential family centre.
(2)
The provision mentioned in sub-paragraph (1) is provision of day care made by—
(a)
the department, authority or other person carrying on the establishment in question as part of the establishment’s activities; or
(b)
a person employed to work at that establishment and authorised to make that provision as part of the establishment’s activities.
2A
(1)
Part XA does not apply to provision of day care in a hotel, guest house or other similar establishment for children staying in that establishment where—
(a)
the provision takes place only between 6 pm and 2 am; and
(b)
the person providing the care is doing so for no more than two different clients at the same time.
(2)
For the purposes of sub-paragraph (1)(b), a “client” is a person at whose request (or persons at whose joint request) day care is provided for a child.
Exemption for occasional facilities
F8533
(1)
Where day care is provided on particular premises on less than six days in any year, that provision shall be disregarded for the purposes of Part XA if the person making it has notified F854the Assembly in writing before the first occasion on which the premises concerned are so used in that year.
(2)
In sub-paragraph (1) “year” means the year beginning with the day (after the commencement of paragraph 5 of Schedule 9) on which the day care in question was or is first provided on the premises concerned and any subsequent year.
Disqualification for registration
F8554
(1)
Regulations may provide for a person to be disqualified for registration for child minding or providing day care F856in Wales .
(2)
The regulations may, in particular, provide for a person to be disqualified where—
(a)
he is included in the list kept under section 1 of the M76Protection of Children Act 1999;
F857(b)
he is subject to a direction under section 142 of the Education Act 2002, given on the grounds that he is unsuitable to work with children F858or on grounds relating to his health ;
F859(ba)
he is barred from regulated activity relating to children (within the meaning of section 3(2) of the Safeguarding Vulnerable Groups Act 2006);
(c)
an order of a prescribed kind has been made at any time with respect to him;
(d)
an order of a prescribed kind has been made at any time with respect to any child who has been in his care;
(e)
a requirement of a prescribed kind has been imposed at any time with respect to such a child, under or by virtue of any enactment;
(f)
he has at any time been refused registration under Part X or Part XA F860, or Part 3 of the Childcare Act 2006, or any prescribed enactment or had any such registration cancelled;
(g)
he has been convicted of any offence of a prescribed kind, or has been F861. . . discharged absolutely or conditionally for any such offence;
F862(ga)
he has been given a caution in respect of any offence of a prescribed kind;
(h)
he has at any time been disqualified from fostering a child privately;
(j)
a prohibition has been imposed on him at any time under section 69, section 10 of the M77Foster Children (Scotland) Act 1984 or any prescribed enactment;
(k)
his rights and powers with respect to a child have at any time been vested in a prescribed authority under a prescribed enactment.
(3)
Regulations may provide for a person who lives—
(a)
in the same household as a person who is himself disqualified for registration for child minding or providing day care F863in Wales ; or
(b)
in a household at which any such person is employed,
to be disqualified for registration for child minding or providing day care F863in Wales .
F864(3A)
Regulations under this paragraph may provide for a person not to be disqualified for registration F865(and may in particular provide for a person not to be disqualified for registration for the purposes of sub-paragraphs (4) and (5)) by reason of any fact which would otherwise cause him to be disqualified if—
(a)
he has disclosed the fact to F866the Assembly , and
(4)
(5)
F873(6)
In this paragraph—
“ caution ” includes a reprimand or warning within the meaning of section 65 of the Crime and Disorder Act 1998;
“ enactment ” means any enactment having effect, at any time, in any part of the United Kingdom.
F874(7)
A conviction in respect of which a probation order was made before 1st October 1992 (which would not otherwise be treated as a conviction) is to be treated as a conviction for the purposes of this paragraph.
F8755
(1)
If any person—
(a)
he shall be guilty of an offence.
F879F879...
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F879(2)
A person who contravenes sub-paragraph (4) of paragraph 4 shall not be guilty of an offence under this paragraph if—
(a)
he is disqualified for registration by virtue only of regulations made under sub-paragraph (3) of paragraph 4, and
(b)
he proves that he did not know, and had no reasonable grounds for believing, that he was living in the same household as a person who was disqualified for registration or in a household in which such a person was employed.
(3)
Where a person contravenes sub-paragraph (5) of paragraph 4, he shall not be guilty of an offence under this paragraph if he proves that he did not know, and had no reasonable grounds for believing, that the person whom he was employing was disqualified.
(4)
A person guilty of an offence under this paragraph shall be liable on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding level 5 on the standard scale, or to both.
Provision of day care: unincorporated associations
5A
(1)
References in Part XA to a person, so far as relating to the provision of day care, include an unincorporated association.
(2)
Proceedings for an offence under Part XA which is alleged to have been committed by an unincorporated association must be brought in the name of the association (and not in that of any of its members).
(3)
For the purpose of any such proceedings, rules of court relating to the service of documents are to have effect as if the association were a body corporate.
(4)
In proceedings for an offence under Part XA brought against an unincorporated association, section 33 of the Criminal Justice Act 1925 and Schedule 3 to the Magistrates' Courts Act 1980 (procedure) apply as they do in relation to a body corporate.
(5)
A fine imposed on an unincorporated association on its conviction of an offence under Part XA is to be paid out of the funds of the association.
(6)
If an offence under Part XA committed by an unincorporated association is shown—
(a)
to have been committed with the consent or connivance of an officer of the association or a member of its governing body, or
(b)
to be attributable to any neglect on the part of such an officer or member,
the officer or member as well as the association is guilty of the offence and liable to proceeded against and punished accordingly.
Certificates of registration
F8806
(1)
If an application for registration is granted, F881the Assembly shall give the applicant a certificate of registration.
(2)
A certificate of registration shall give prescribed information about prescribed matters.
(3)
Where, due to a change of circumstances, any part of the certificate requires to be amended, F882the Assembly shall issue an amended certificate.
(4)
(5)
For the purposes of Part XA, a person is—
(a)
registered for providing child minding F885in Wales ; or
(b)
registered for providing day care on any premises F886in Wales ,
if a certificate of registration to that effect is in force in respect of him.
F887. . . fees
F8887
Co-operation between authorities
F8928
(1)
F893. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2)
Where it appears to the Assembly that any local authority in Wales could, by taking any specified action, help in the exercise of any of its functions under Part XA, the Assembly may request the help of that authority specifying the action in question.
(3)
An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.
SCHEDULE 10 Amendments of Adoption Legislation
Part I Amendments of Adoption Act 1976 (c. 36)
1
F894. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
F895. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
F896. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
F897. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
F898. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
F899. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
F900. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
F901. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
F902. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
F903. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
F904. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
F905. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
F906. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
F907. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
F908. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
F909. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
F910. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18
F911. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
F912. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
F913. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
F914. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
F915. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
F916. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
24
F917. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25
F918. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26
F919. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
F920. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
F921. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F92229
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30
F923. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
31
F924. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F925Part II Amendments of Adoption (Scotland) Act 1978 (c. 28)
32
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
33
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
34
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
35
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
36
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
37
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
38
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
39
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
40
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
41
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
42
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
43
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
44
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
45
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 11 Jurisdiction
Part I General
Commencement of proceedings
1
(1)
The Lord Chancellor may F926, after consulting the Lord Chief Justice, by order specify proceedings under this Act or F927the Adoption and Children Act 2002 which may only be commenced in—
(a)
a specified level of court;
(b)
a court which falls within a specified class of court; or
(c)
a particular court determined in accordance with, or specified in, the order.
(2)
The Lord Chancellor may F926, after consulting the Lord Chief Justice, by order specify circumstances in which specified proceedings under this Act or F927the Adoption and Children Act 2002 (which might otherwise be commenced elsewhere) may only be commenced in—
(a)
a specified level of court;
(b)
a court which falls within a specified class of court; or
(c)
a particular court determined in accordance with, or specified in, the order.
F928(2A)
Sub-paragraphs (1) and (2) shall also apply in relation to proceedings—
F929(a)
under section 55A of the M78Family Law Act 1986 (declarations of parentage); or
(b)
which are to be dealt with in accordance with an order made under section 45 F930 of the M79Child Support Act 1991 (jurisdiction of courts in certain proceedings under that Act)
(3)
The Lord Chancellor may F926, after consulting the Lord Chief Justice, by order make provision by virtue of which, where specified proceedings with respect to a child under—
(a)
this Act;
(b)
F927the Adoption and Children Act 2002;
(bb)
section 20 (appeals) F931. . . of the Child Support Act 1991; or
(c)
the High Court’s inherent jurisdiction with respect to children,
have been commenced in or transferred to any court (whether or not by virtue of an order under this Schedule), any other specified family proceedings which may affect, or are otherwise connected with, the child may, in specified circumstances, only be commenced in that court.
(4)
A class of court specified in an order under this Schedule may be described by reference to a description of proceedings and may include different levels of court.
Transfer of proceedings
2
(1)
The Lord Chancellor may F932, after consulting the Lord Chief Justice, by order provide that in specified circumstances the whole, or any specified part of, specified proceedings to which this paragraph applies shall be transferred to—
(a)
a specified level of court;
(b)
a court which falls within a specified class of court; or
(c)
a particular court determined in accordance with, or specified in, the order.
(2)
Any order under this paragraph may provide for the transfer to be made at any stage, or specified stage, of the proceedings and whether or not the proceedings, or any part of them, have already been transferred.
(3)
The proceedings to which this paragraph applies are—
(a)
any proceedings under this Act;
(b)
any proceedings under F933the Adoption and Children Act 2002;
F934(ba)
any proceedings under section 55A of the M80Family Law Act 1986
(c)
any other proceedings which—
(i)
are family proceedings for the purposes of this Act, other than proceedings under the inherent jurisdiction of the High Court; and
(ii)
may affect, or are otherwise connected with, the child concerned.
(4)
Proceedings to which this paragraph applies by virtue of sub-paragraph (3)(c) may only be transferred in accordance with the provisions of an order made under this paragraph for the purpose of consolidating them with proceedings under—
(a)
this Act;
(b)
F933the Adoption and Children Act 2002; or
(c)
the High Court’s inherent jurisdiction with respect to children.
(5)
An order under this paragraph may make such provision as the Lord Chancellor thinks appropriate F937, after consulting the Lord Chief Justice, for excluding proceedings to which this paragraph applies from the operation of any enactment which would otherwise govern the transfer of those proceedings, or any part of them.
Hearings by single justice
3
(1)
In such circumstances as the Lord Chancellor may F938, after consulting the Lord Chief Justice, by order specify—
(a)
the jurisdiction of a magistrates’ court to make an emergency protection order;
(b)
any specified question with respect to the transfer of specified proceedings to or from a magistrates’ court in accordance with the provisions of an order under paragraph 2,
may be exercised by a single justice.
(2)
Any provision made under this paragraph shall be without prejudice to any other enactment or rule of law relating to the functions which may be performed by a single justice of the peace.
General
4
(1)
For the purposes of this Schedule—
(a)
the commencement of proceedings under this Act includes the making of any application under this Act in the course of proceedings (whether or not those proceedings are proceedings under this Act); and
(b)
there are three levels of court, that is to say the High Court, any county court and any magistrates’ court.
(2)
In this Schedule “specified” means specified by an order made under this Schedule.
(3)
Any order under paragraph 1 may make provision as to the effect of commencing proceedings in contravention of any of the provisions of the order.
(4)
An order under paragraph 2 may make provision as to the effect of a failure to comply with any of the provisions of the order.
(5)
An order under this Schedule may—
(a)
make such consequential, incidental or transitional provision as the Lord Chancellor considers expedient F939, after consulting the Lord Chief Justice, , including provision amending any other enactment so far as it concerns the jurisdiction of any court or justice of the peace;
(b)
make provision for treating proceedings which are—
(i)
in part proceedings of a kind mentioned in paragraph (a) or (b) of paragraph 2(3); and
(ii)
in part proceedings of a kind mentioned in paragraph (c) of paragraph 2(3),
as consisting entirely of proceedings of one or other of those kinds, for the purposes of the application of any order made under paragraph 2.
F940(6)
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this Part of this Schedule.
Part II Consequential Amendments
The Administration of Justice Act 1964 (c. 42)
5
In section 38 of the Administration of Justice Act 1964 (interpretation), the definition of “domestic court", which is spent, shall be omitted.
The Domestic Proceedings and Magistrates’ Courts Act 1978 (c. 22)
6
In the Domestic Proceedings and Magistrates’ Courts Act 1978—
(a)
for the words “domestic proceedings", whereverever they occur in F941section 88(1), there shall be substituted “family proceedings";
(b)
for the words “domestic court panel", wherever they occur in section 16(5)(b), there shall be substituted “family panel".
The Justices of the Peace Act 1979 (c. 55)
F9427
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Magistrates’ Courts Act 1980 (c. 43)
8
In the Magistrates’ Courts Act 1980—
(a)
“(n)
the Children Act 1989”;
(b)
in section 65(2)(a) for the words “and (m)" there shall be substituted “
(m) and (n)
”
;
(c)
for the words “domestic proceedings", wherever they occur in sections 65(1), (2) and (3), F943. . ., 67(1), (2) and (7), 69(1), (2), (3) and (4), 70(2) and (3), 71(1) and (2), 72(1), 73, 74(1), 121(8) and 150(1), there shall be substituted “
family proceedings
”
;
(d)
F944. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e)
F945. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f)
F946. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g)
F947. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The F948Senior Courts Act 1981 (c. 54)
9
“(e)
proceedings under the Children Act 1989”.
The Matrimonial and Family Proceedings Act 1984 (c. 42)
10
In section 44 of the Matrimonial and Family Proceedings Act 1984 (domestic proceedings in magistrates’ courts to include applications to alter maintenance agreements) for the words “domestic proceedings", wherever they occur, there shall be substituted “
family proceedings"
”
.
The Insolvency Act 1986 (c. 45)
11
(1)
In section 281(5)(b) of the Insolvency Act 1986 (discharge not to release bankrupt from bankruptcy debt arising under any order made in family proceedings or in domestic proceedings), the words “or in domestic proceedings” shall be omitted.
(2)
In section 281(8) of that Act (interpretation), for the definitions of “domestic proceedings" and “family proceedings" there shall be substituted—
“family proceedings” means—
(a)
family proceedings within the meaning of the Magistrates’ Courts Act 1980 and any proceedings which would be such proceedings but for section 65(1)(ii) of that Act (proceedings for variation of order for periodical payments); and
(b)
family proceedings within the meaning of Part V of the Matrimonial and Family Proceedings Act 1984.
SCHEDULE 12 Minor Amendments
The Custody of Children Act 1891 (c. 3)
1
The Custody of Children Act 1891 (which contains miscellaneous obsolete provisions with respect to the custody of children) shall cease to have effect.
The Children and Young Persons Act 1933 (c. 12)
2
In section 1(2)(a) of the Children and Young Persons Act 1933 (cruelty to persons under sixteen), after the words “young person" there shall be inserted “
, or the legal guardian of a child or young person,"
”
.
3
Section 40 of that Act shall cease to have effect.
The Education Act 1944 (c. 31)
4 F950
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Marriage Act 1949 (c. 76)
5
(1)
In section 3 of the Marriage Act 1949 (consent required to the marriage of a child by common licence or superintendent registrar’s certificate), in subsection (1) for the words “the Second Schedule to this Act" there shall be substituted “
subsection (1A) of this section"
”
.
(2)
“(1A)
The consents are—
(a)
subject to paragraphs (b) to (d) of this subsection, the consent of—
(i)
each parent (if any) of the child who has parental responsibility for him; and
(ii)
each guardian (if any) of the child;
(b)
where a residence order is in force with respect to the child, the consent of the person or persons with whom he lives, or is to live, as a result of the order (in substitution for the consents mentioned in paragraph (a) of this subsection);
(c)
where a care order is in force with respect to the child, the consent of the local authority designated in the order (in addition to the consents mentioned in paragraph (a) of this subsection);
(d)
where neither paragraph (b) nor (c) of this subsection applies but a residence order was in force with respect to the child immediately before he reached the age of sixteen, the consent of the person or persons with whom he lived, or was to live, as a result of the order (in substitution for the consents mentioned in paragraph (a) of this subsection).
(1B)
In this section “guardian of a child”, “parental responsibility”, “residence order” and “care order” have the same meaning as in the Children Act 1989.”
The Births and Deaths Registration Act 1953 (c. 20)
6
(1)
Sections 10 and 10A of the Births and Deaths Registration Act 1953 (registration of father, and re-registration, where parents not married) shall be amended as follows.
(2)
“(d)
at the request of the mother or that person on production of—
(i)
a copy of a parental responsibility agreement made between them in relation to the child; and
(ii)
a declaration in the prescribed form by the person making the request stating that the agreement was made in compliance with section 4 of the Children Act 1989 and has not been brought to an end by an order of a court; or
(e)
at the request of the mother or that person on production of—
(i)
a certified copy of an order under section 4 of the Children Act 1989 giving that person parental responsibility for the child; and
(ii)
a declaration in the prescribed form by the person making the request stating that the order has not been brought to an end by an order of a court; or
(f)
at the request of the mother or that person on production of—
(i)
a certified copy of an order under paragraph 1 of Schedule 1 to the Children Act 1989 which requires that person to make any financial provision for the child and which is not an order falling within paragraph 4(3) of that Schedule; and
(ii)
a declaration in the prescribed form by the person making the request stating that the order has not been discharged by an order of a court; or
(g)
at the request of the mother or that person on production of—
(i)
a certified copy of any of the orders which are mentioned in subsection (1A) of this section which has been made in relation to the child; and
(ii)
a declaration in the prescribed form by the person making the request stating that the order has not been brought to an end or discharged by an order of a court.”
(3)
“(1A)
The orders are—
(a)
an order under section 4 of the Family Law Reform Act 1987 that that person shall have all the parental rights and duties with respect to the child;
(b)
an order that that person shall have custody or care and control or legal custody of the child made under section 9 of the Guardianship of Minors Act 1971 at a time when such an order could only be made in favour of a parent;
(c)
an order under section 9 or 11B of that Act which requires that person to make any financial provision in relation to the child;
(d)
an order under section 4 of the Affiliation Proceedings Act 1957 naming that person as putative father of the child.”
(4)
In section 10(2) for the words “or (d)" there shall be substituted “
to (g)"
”
.
(5)
““parental responsibility agreement” has the same meaning as in the Children Act 1989”.
(6)
In section 10A(2) in paragraphs (b) and (c) for the words “paragraph (d)" in both places where they occur there shall be substituted “
any of paragraphs (d) to (g)"
”
.
The Army Act 1955 (c. 18)
7
In section 151 of the Army Act 1955 (deductions from pay for maintenance of wife or child), in subsection (1A)(a) for the words “in the care of a local authority in England or Wales" there shall be substituted “
being looked after by a local authority in England or Wales (within the meaning of the Children Act 1989)"
”
.
F9518
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Air Force Act 1955 (c. 19)
9
Section 151(1A) of the Air Force Act 1955 (deductions from pay for maintenance of wife or child) shall have effect subject to the amendment that is set out in paragraph 7 in relation to section 151(1A) of the Army Act 1955.
F95210
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Sexual Offences Act 1956 (c. 69)
11
F953. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
F954. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
F955. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
F956. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
Section 38 of that Act (power of court to divest person of authority over girl or boy in case of incest) shall cease to have effect.
16
F957. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
“46A Meaning of “parental responsibility".
In this Act “parental responsibility” has the same meaning as in the Children Act 1989.”
The Children and Young Persons Act 1963 (c. 37)
19
Section 3 of the Children and Young Persons Act 1963 (children and young persons beyond control) shall cease to have effect.
The Children and Young Persons Act 1969 (c. 54)
20
In section 5 of the Children and Young Persons Act 1969 (restrictions on criminal proceedings for offences by young persons), in subsection (2), for the words “section 1 of this Act" there shall be substituted “
Part IV of the Children Act 1989"
”
.
F95921
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F96022
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F96123
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F96224
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F96325
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26
“23 Remand to local authority accommodation, committal of young persons of unruly character, etc.
(1)
Where a court—
(a)
remands or commits for trial a child charged with homicide or remands a child convicted of homicide; or
(b)
remands a young person charged with or convicted of one or more offences or commits him for trial or sentence,
and he is not released on bail, then, unless he is a young person who is certified by the court to be of unruly character, the court shall remand him to local authority accommodation.
(2)
A court remanding a person to local authority accommodation shall designate the authority who are to receive him and that authority shall be the authority in whose area it appears to the court that—
(a)
he resides; or
(b)
the offence or one of the offences was committed.
(3)
Where a person is remanded to local authority accommodation, it shall be lawful for any person acting on behalf of the designated authority to detain him.
(4)
The court shall not certify a young person as being of unruly character unless—
(a)
he cannot safely be remanded to local authority accommodation; and
(b)
the conditions prescribed by order made by the Secretary of State under this subsection are satisfied in relation to him.
(5)
Where the court certifies that a young person is of unruly character, it shall commit him—
(a)
to a remand centre, if it has been notified that such a centre is available for the reception from the court of such persons; and
(b)
to a prison, if it has not been so notified.
(6)
Where a young person is remanded to local authority accommodation, a court may, on the application of the designated authority, certify him to be of unruly character in accordance with subsection (4) of this section (and on so doing he shall cease to be remanded to local authority accommodation and subsection (5) of this section shall apply).
(7)
For the purposes of subsection (6) of this section,
“a court” means—
(a)
the court which remanded the young person; or
(b)
any magistrates’ court having jurisdiction in the place where that person is for the time being,
and in this section “court” and “magistrates’ court” include a justice.
(8)
This section has effect subject to—
(a)
section 37 of the Magistrates’ Courts Act 1980 (committal to the Crown Court with a view to a sentence of detention in a young offender institution); and
(b)
section 128(7) of that Act (remands to the custody of a constable for periods of not more than three days),
but section 128(7) shall have effect in relation to a child or young person as if for the reference to three clear days there were substituted a reference to twenty-four hours.”
27
(1)
“(1A)
If a child or young person is absent, without the consent of the responsible person—
(a)
from a place of safety to which he has been taken under section 16(3) of this Act; or
(b)
from local authority accommodation—
(i)
in which he is required to live under section 12AA of this Act; or
(ii)
to which he has been remanded under section 23(1) of this Act,
he may be arrested by a constable anywhere in the United Kingdom or Channel Islands without a warrant.
(1B)
A person so arrested shall be conducted to—
(a)
the place of safety;
(b)
the local authority accommodation; or
(c)
such other place as the responsible person may direct,
at the responsible person’s expense.
(1C)
In this section “the responsible person” means the person who made the arrangements under section 16(3) of this Act or, as the case may be, the authority designated under section 12AA or 23 of this Act.”
(2)
In subsection (2B) of that section for the words “person referred to in subsection (1A)(a) or (b) (as the case may be) of this section" there shall be substituted “
responsible person"
”
.
28
In section 34(1) of that Act (transitional modifications of Part I for persons of specified ages)—
(a)
in paragraph (a), for the words “13(2) or 28(4) or (5)" there shall be substituted “
or 13(2)"
”
; and
(b)
in paragraph (e), for the words “section 23(2) or (3)" there shall be substituted “
section 23(4) to (6)"
”
.
29
In section 70(1) of that Act (interpretation)—
(a)
““local authority accommodation” means accommodation provided by or on behalf of a local authority (within the meaning of the Children Act 1989)”; F964. . .
(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30
In section 73 of that Act (extent, etc.)—
(a)
in subsection (4)(a) for “32(1), (3) and (4)" there shall be substituted “
32(1) to (1C) and (2A) to (4)"
”
; and
(b)
in subsection (6) for “32(1), (1A)" there shall be substituted “
32(1) to (1C)"
”
.
The Matrimonial Causes Act 1973 (c. 18)
31
“41 Restrictions on decrees for dissolution, annulment or separation affecting children.
(1)
In any proceedings for a decree of divorce or nullity of marriage, or a decree of judicial separation, the court shall consider—
(a)
whether there are any children of the family to whom this section applies; and
(b)
where there are any such children, whether (in the light of the arrangements which have been, or are proposed to be, made for their upbringing and welfare) it should exercise any of its powers under the Children Act 1989 with respect to any of them.
(2)
Where, in any case to which this section applies, it appears to the court that—
(a)
the circumstances of the case require it, or are likely to require it, to exercise any of its powers under the Act of 1989 with respect to any such child;
(b)
it is not in a position to exercise that power or (as the case may be) those powers without giving further consideration to the case; and
(c)
there are exceptional circumstances which make it desirable in the interests of the child that the court should give a direction under this section,
it may direct that the decree of divorce or nullity is not to be made absolute, or that the decree of judicial separation is not to be granted, until the court orders otherwise.
(3)
This section applies to—
(a)
any child of the family who has not reached the age of sixteen at the date when the court considers the case in accordance with the requirements of this section; and
(b)
any child of the family who has reached that age at that date and in relation to whom the court directs that this section shall apply.”
32
In section 42 of that Act, subsection (3) (declaration by court that party to marriage unfit to have custody of children of family) shall cease to have effect.
33
In section 52(1) of that Act (interpretation), in the definition of “child of the family", for the words “has been boarded-out with those parties" there shall be substituted “
is placed with those parties as foster parents"
”
.
The National Health Service Act 1977 (c. 49)
34
F965. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Child Care Act 1980 (c. 5)
35
Until the repeal of the Child Care Act 1980 by this Act takes effect, the definition of “parent” in section 87 of that Act shall have effect as if it applied only in relation to Part I and sections 13, 24, 64 and 65 of that Act (provisions excluded by section 2(1)(f) of the M81Family Law Reform Act 1987 from the application of the general rule in that Act governing the meaning of references to relationships between persons).
The Education Act 1981 (c. 60)
F96636
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Child Abduction Act 1984 (c. 37)
37
(1)
Section 1 of the Child Abduction Act 1984 (offence of abduction by parent, etc.) shall be amended as follows.
(2)
“(2)
A person is connected with a child for the purposes of this section if—
(a)
he is a parent of the child; or
(b)
in the case of a child whose parents were not married to each other at the time of his birth, there are reasonable grounds for believing that he is the father of the child; or
(c)
he is a guardian of the child; or
(d)
he is a person in whose favour a residence order is in force with respect to the child; or
(e)
he has custody of the child.
(3)
In this section “the appropriate consent”, in relation to a child, means—
(a)
the consent of each of the following—
(i)
the child’s mother;
(ii)
the child’s father, if he has parental responsibility for him;
(iii)
any guardian of the child;
(iv)
any person in whose favour a residence order is in force with respect to the child;
(v)
any person who has custody of the child; or
(b)
the leave of the court granted under or by virtue of any provision of Part II of the Children Act 1989; or
(c)
if any person has custody of the child, the leave of the court which awarded custody to him.
(4)
A person does not commit an offence under this section by taking or sending a child out of the United Kingdom without obtaining the appropriate consent if—
(a)
he is a person in whose favour there is a residence order in force with respect to the child, and
(b)
he takes or sends him out of the United Kingdom for a period of less than one month.
(4A)
Subsection (4) above does not apply if the person taking or sending the child out of the United Kingdom does so in breach of an order under Part II of the Children Act 1989.”
(3)
“(5A)
Subsection (5)(c) above does not apply if—
(a)
the person who refused to consent is a person—
(i)
in whose favour there is a residence order in force with respect to the child; or
(ii)
who has custody of the child; or
(b)
the person taking or sending the child out of the United Kingdom is, by so acting, in breach of an order made by a court in the United Kingdom.”
(4)
“(7)
For the purposes of this section—
(a)
“guardian of a child”, “residence order” and “parental responsibility” have the same meaning as in the Children Act 1989; and
(b)
a person shall be treated as having custody of a child if there is in force an order of a court in the United Kingdom awarding him (whether solely or jointly with another person) custody, legal custody or care and control of the child.”
(5)
In subsection (8) for the words from “or voluntary organisation" to “custodianship proceedings or" there shall be substituted “
detained in a place of safety, remanded to a local authority accommodation or the subject of"
”
.
38
(1)
In section 2 of that Act (offence of abduction of child by other persons), in subsection (1) for the words from “Subject" to “above" there shall be substituted “
Subject to subsection (3) below, a person, other than one mentioned in subsection (2) below."
”
(2)
“(2)
The persons are—
(a)
where the father and mother of the child in question were married to each other at the time of his birth, the child’s father and mother;
(b)
where the father and mother of the child in question were not married to each other at the time of his birth, the child’s mother; and
(c)
any other person mentioned in section 1(2)(c) to (e) above.
(3)
In proceedings against any person for an offence under this section, it shall be a defence for that person to prove—
(a)
where the father and mother of the child in question were not married to each other at the time of his birth—
(i)
that he is the child’s father; or
(ii)
that, at the time of the alleged offence, he believed, on reasonable grounds, that he was the child’s father; or
(b)
that, at the time of the alleged offence, he believed that the child had attained the age of sixteen.”
39
“and
(d)
references to a child’s parents and to a child whose parents were (or were not) married to each other at the time of his birth shall be construed in accordance with section 1 of the Family Law Reform Act 1987 (which extends their meaning).”
40
(1)
The Schedule to that Act (modifications of section 1 for children in certain cases) shall be amended as follows.
(2)
In paragraph 1(1) for the words “or voluntary organisation" there shall be substituted “
within the meaning of the Children Act 1989"
”
.
(3)
“(1)
This paragraph applies in the case of a child who is—
(a)
detained in a place of safety under section 16(3) of the Children and Young Persons Act 1969; or
(b)
remanded to local authority accommodation under section 23 of that Act.”
(4)
In paragraph 3(1)—
(a)
in paragraph (a) for the words “section 14 of the Children Act 1975" there shall be substituted “
section 18 of the Adoption Act 1976"
”
; and
(b)
in paragraph (d) for the words “section 25 of the Children Act 1975 or section 53 of the Adoption Act 1958" there shall be substituted “
section 55 of the Adoption Act 1976"
”
.
(5)
In paragraph 3(2)(a)—
(a)
in sub-paragraph (i), for the words from “order or," to “Children Act 1975" there shall be substituted “
section 18 order or, if the section 18 order has been varied under section 21 of that Act so as to give parental responsibility to another agency"
”
, and
(b)
in sub-paragraph (ii), for the words “(c) or (e)" there shall be substituted “
or (c)"
”
.
(6)
“(3)
Sub-paragraph (2) above shall be construed as if the references to the court included, in any case where the court is a magistrates’ court, a reference to any magistrates’ court acting for the same area as that court”.
(7)
“5
In this Schedule—
(a)
“adoption agency” and “adoption order” have the same meaning as in the Adoption Act 1976; and
(b)
“area”, in relation to a magistrates’ court, means the petty sessions area (within the meaning of the Justices of the Peace Act 1979) for which the court is appointed.”
The Foster Children (Scotland) Act 1984 (c. 56)
41
In section 1 of the Foster Children (Scotland) Act 1984 (definition of foster child)—
(a)
for the words “he is— (a)" there shall be substituted “
(a) he is"
”
; and
(b)
the words “for a period of more than 6 days" and the words from “The period" to the end shall cease to have effect..
42
“(f)
if he has been in that person’s care for a period of less than 28 days and that person does not intend to undertake his care for any longer period.”
43
In section 7(1) of that Act (persons disqualified from keeping foster children)—
(a)
the word “or" at the end of paragraph (e) shall be omitted; and
(b)
“or
(g)
he is disqualified from fostering a child privately (within the meaning of the Children Act 1989) by regulations made under section 68 of that Act,”.
The Disabled Persons (Services, Consultation and Representation) Act 1986 (c. 33)
44
“(dd)
in accommodation provided by any educational establishment.”
The Legal Aid Act 1988 (c. 34)
F96745
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 13 Consequential Amendments
The Wills Act 1837 (c. 26)
1
In section 1 of the Wills Act 1837 (interpretation), in the definition of “will", for the words “and also to a disposition by will and testament or devise of the custody and tuition of any child" there shall be substituted “
and also to an appointment by will of a guardian of a child"
”
.
The Children and Young Persons Act 1933 (c. 12)
2
In section 1(1) of the Children and Young Persons Act 1933 (cruelty to persons under sixteen) for the words “has the custody, charge or care of" there shall be substituted “
has responsibility for"
”
.
3
In the following sections of that Act—
(a)
3(1) (allowing persons under sixteen to be in brothels);
(b)
4(1) and (2) (causing or allowing persons under sixteen to be used for begging);
(c)
11 (exposing children under twelve to risk of burning); and
(d)
25(1) (restrictions on persons under eighteen going abroad for the purpose of performing for profit),
for the words “the custody, charge or care of" there shall, in each case, be substituted “
responsibility for"
”
.
F9684
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
“17 Interpretation of Part I.
(1)
For the purposes of this Part of this Act, the following shall be presumed to have responsibility for a child or young person—
(a)
any person who—
(i)
has parental responsibility for him (within the meaning of the Children Act 1989); or
(ii)
is otherwise legally liable to maintain him; and
(b)
any person who has care of him.
(2)
A person who is presumed to be responsible for a child or young person by virtue of subsection (1)(a) shall not be taken to have ceased to be responsible for him by reason only that he does not have care of him.”
6
(1)
In section 34 of that Act (attendance at court of parent of child or young person charged with an offence etc.), in subsection (1) after the word “offence" there shall be inserted “
is the subject of an application for a care or supervision order under Part IV of the Children Act 1989"
”
.
(2)
In subsection (7) of that section after the words “Children and Young Persons Act 1969" there shall be inserted “
or Part IV of the Children Act 1989"
”
.
(3)
“(7A)
If it appears that at the time of his arrest the child or young person is being provided with accommodation by or on behalf of a local authority under section 20 of the Children Act 1989, the local authority shall also be informed as described in subsection (3) above as soon as it is reasonably practicable to do so.”
7
In section 107(1) of that Act (interpretation)—
(a)
in the definition of “guardian", for the words “charge of or control over" there shall be substituted “
care of"
”
;
(b)
““legal guardian”, in relation to a child or young person, means a guardian of a child as defined in the Children Act 1989”.
The Education Act 1944 (c. 31)
F9698
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F9709
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F97110
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The National Assistance Act 1948 (c. 29)
11
(1)
In section 21(1)(a) of the National Assistance Act 1948 (persons for whom local authority is to provide residential accommodation) after the word “persons" there shall be inserted “
aged eighteen or over"
”
.
(2)
In section 29(1) of that Act (welfare arrangements for blind, deaf, dumb and crippled persons) after the words “that is to say persons" and after the words “and other persons" there shall, in each case, be inserted “
aged eighteen or over"
”
.
The Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 (c. 65)
12
“(d)
an order for alimony, maintenance or other payment made under sections 21 to 33 of the Matrimonial Causes Act 1973 or made, or having effect as if made, under Schedule 1 to the Children Act 1989.”
The Mines and Quarries Act 1954 (c. 70)
F97213
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Administration of Justice Act 1960 (c. 65)
14
“(a)
where the proceedings—
(i)
relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii)
are brought under the Children Act 1989; or
(iii)
otherwise relate wholly or mainly to the maintenance or upbringing of a minor;”.
The Factories Act 1961 (c. 34)
15
In section 176(1) of the Factories Act 1961 (interpretation), in the definition of “parent", for the words from “or guardian" to first “young person" there shall be substituted “
of a child or young person or any person who is not a parent of his but who has parental responsibility for him (within the meaning of the Children Act 1989)"
”
.
The Criminal Justice Act 1967 (c. 80)
16
In section 67(1A)(c) of the Criminal Justice Act 1967 (computation of sentences of imprisonment passed in England and Wales) for the words “in the care of a local authority" there shall be substituted “
remanded to local authority accommodation."
”
The Health Services and Public Health Act 1968 (c. 46)
17
(1)
“(xx)
the Children Act 1989.”
(2)
“(xxi)
the Children Act 1989.”
The Social Work (Scotland) Act 1968 (c. 49)
18
“(k)
section 19 and Part X of the Children Act 1989,”.
19
In section 5(2)(c) of that Act (power of Secretary of State to make regulations) for the words “and (j)" there shall be substituted “
to (k)"
”
.
20
In section 21(3) of that Act (mode of provision of accommodation and maintenance) for the words “section 21 of the Child Care Act 1980" there shall be substituted “
section 23 of the Children Act 1989"
”
.
21
In section 74(6) of that Act (parent of child in residential establishment moving to England or Wales) for the words from “Children and Young Persons Act 1969" to the end there shall be substituted “
Children Act 1989, but as if section 31(8) were omitted"
”
.
22
In section 75(2) of that Act (parent of child subject to care order etc. moving to Scotland), for the words “Children and Young Persons Act 1969" there shall be substituted “
Children Act 1989"
”
.
23
In section 86(3) of that Act (meaning of ordinary residence for purpose of adjustments between authority providing accommodation and authority of area of residence), the words “the Child Care Act 1980 or” shall be omitted and after the words “education authority" there shall be inserted “
or placed with local authority foster parents under the Children Act 1989"
”
.
The Civil Evidence Act 1968 (c. 64)
F97324
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Administration of Justice Act 1970 (c. 31)
F97425
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Local Authority Social Services Act 1970 (c. 42)
26
(1)
In Schedule 1 to the Local Authority Social Services Act 1970 (enactments conferring functions assigned to social service committee)—
(a)
in the entry relating to the Mental Health Act 1959, for the words “sections 8 and 9" there shall be substituted “
section 8"
”
; and
(b)
F975. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2)
“Children Act 1989.
Welfare reports.
The whole Act, in so far as it confers functions on a local authority within the meaning of that Act.
Consent to application for residence order in respect of child in care.
Family assistance orders.
Functions under Part III of the Act (local authority support for children and families).
Care and supervision.
Protection of children.
Functions in relation to community homes, voluntary homes and voluntary organisations, registered children’s homes, private arrangements for fostering children, child minding and day care for young children.
Inspection of children’s homes on behalf of Secretary of State.
Research and returns of information.
Functions in relation to children accommodated by health authorities and local education authorities or in residential care, nursing or mental nursing homes or in independent schools.”
The Chronically Sick and Disabled Persons Act 1970 (c. 44)
27
“28A Application of Act to authorities having functions under the Children Act 1989.
This Act applies with respect to disabled children in relation to whom a local authority have functions under Part III of the Children Act 1989 as it applies in relation to persons to whom section 29 of the National Assistance Act 1948 applies.”
The Courts Act 1971 (c. 23)
28
In Part I of Schedule 9 to the Courts Act 1971 (substitution of references to Crown Court), in the entry relating to the Children and Young Persons Act 1969, for the words “Sections 2(12), 3(8), 16(8), 21(4)(5)" there shall be substituted “
Section 16(8)."
”
.
The Attachment of Earnings Act 1971 (c. 32)
29
In Schedule 1 to the Attachment of Earnings Act 1971 (maintenance orders to which that Act applies), in paragraph 7, for the words “section 47 or 51 of the Child Care Act 1980" there shall be substituted “
paragraph 23 of Schedule 2 to the Children Act 1989"
”
.
The Tribunals and Inquiries Act 1971 (c. 62)
F97630
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Local Government Act 1972 (c. 70)
31
(1)
In section 102(1) of the Local Government Act 1972 (appointment of committees) for the words “section 31 of the Child Care Act 1980" there shall be substituted “
section 53 of the Children Act 1989"
”
.
(2)
In Schedule 12A to that Act (access to information: exempt information), in Part III (interpretation), in paragraph 1(1)(b) for the words “section 20 of the Children and Young Persons Act 1969" there shall be substituted “
section 31 of the Children Act 1989"
”
.
The Employment of Children Act 1973 (c. 24)
32
F977. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Domicile and Matrimonial Proceedings Act 1973 (c. 45)
33
(1)
In Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 (proceedings in divorce etc. stayed by reference to proceedings in other jurisdiction), paragraph 11(1) shall be amended as follows—
(a)
at the end of the definition of “lump sum" there shall be added “or an order made in equivalent circumstances under Schedule 1 to the Children Act 1989 and of a kind mentioned in paragraph 1(2)(c) of that Schedule";
(b)
in the definition of “relevant order", at the end of paragraph (b), there shall be added “or an order made in equivalent circumstances under Schedule 1 to the Children Act 1989 and of a kind mentioned in paragraph 1(2)(a) or (b) of that Schedule";
(c)
in paragraph (c) of that definition, after the word “children)" there shall be inserted “or a section 8 order under the Children Act 1989"; and
(d)
in paragraph (d) of that definition for the words “the custody, care or control" there shall be substituted “care".
(2)
In paragraph 11(3) of that Schedule—
(a)
the word “four” shall be omitted; and
(b)
for the words “the custody of a child and the education of a child" there shall be substituted “or any provision which could be made by a section 8 order under the Children Act 1989".
The Powers of Criminal Courts Act 1973 (c. 62)
F97834
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Rehabilitation of Offenders Act 1974 (c. 53)
35
(1)
Section 7(2) of the Rehabilitation of Offenders Act 1974 (limitations on rehabilitation under the Act) shall be amended as follows.
(2)
“(c)
in any proceedings relating to adoption, the marriage of any minor, the exercise of the inherent jurisdiction of the High Court with respect to minors or the provision by any person of accommodation, care or schooling for minors;
(cc)
in any proceedings brought under the Children Act 1989;”
(3)
“(d)
in any proceedings relating to the variation or discharge of a supervision order under the Children and Young Persons Act 1969, or on appeal from any such proceedings”.
The Domestic Proceedings and Magistrates’ Courts Act 1978 (c. 22)
36
“8 Restrictions on making of orders under this Act: welfare of children.
Where an application is made by a party to a marriage for an order under section 2, 6 or 7 of this Act, then, if there is a child of the family who is under the age of eighteen, the court shall not dismiss or make a final order on the application until it has decided whether to exercise any of its powers under the Children Act 1989 with respect to the child.”
37
In section 19(3A)(b) (interim orders) for the words “subsections (2) and" there shall be substituted “
subsection"
”
.
38
“(12)
An application under this section may be made—
(a)
where it is for the variation or revocation of an order under section 2, 6, 7 or 19 of this Act for periodical payments, by either party to the marriage in question; and
(b)
where it is for the variation of an order under section 2(1)(c), 6 or 7 of this Act for periodical payments to or in respect of a child, also by the child himself, if he has attained the age of sixteen.”
39
(1)
“20A Revival of orders for periodical payments.
(1)
Where an order made by a magistrates’ court under this Part of this Act for the making of periodical payments to or in respect of a child (other than an interim maintenance order) ceases to have effect—
(a)
on the date on which the child attains the age of sixteen, or
(b)
at any time after that date but before or on the date on which he attains the age of eighteen,
the child may apply to the court which made the order for an order for its revival.
(2)
If on such an application it appears to the court that—
(a)
the child is, will be or (if an order were made under this subsection) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment, or
(b)
there are special circumstances which justify the making of an order under this subsection,
the court shall have power by order to revive the order from such date as the court may specify, not being earlier than the date of the making of the application.
(3)
Any order revived under this section may be varied or revoked under section 20 in the same way as it could have been varied or revoked had it continued in being.”
F97940
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
41
(1)
In section 25 of that Act (effect on certain orders of parties living together), in subsection (1)(a) for the words “6 or 11(2)" there shall be substituted “
or 6"
”
.
(2)
In subsection (2) of that section—
(a)
in paragraph (a) for the words “6 or 11(2)" there shall be substituted “
or 6"
”
; and
(b)
after paragraph (a) there shall be inserted “
or"
”
.
42
In section 29(5) of that Act (appeals) for the words “sections 14(3), 20 and 21" there shall be substituted “
section 20"
”
.
43
In section 88(1) of that Act (interpretation)—
(a)
in the definition of “child", for the words from “an illegitimate" to the end there shall be substituted “
a child whose father and mother were not married to each other at the time of his birth"
”
; and
(b)
in the definition of “child of the family", for the words “being boarded-out with those parties" there shall be substituted “
placed with those parties as foster parents"
”
.
The Magistrates’ Courts Act 1980 (c. 43)
44
F980(1)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2)
“(5)
In this section references to the person with whom a child has his home—
(a)
in the case of any child who is being looked after by a local authority (within the meaning of section 22 of the Children Act 1989), are references to that local authority; and
(b)
in any other case, are references to the person who, disregarding any absence of the child at a hospital or boarding school and any other temporary absence, has care of the child.”.
The F981Senior Courts Act 1981 (c. 54)
45
(1)
In section 18 of the F982Senior Courts Act 1981 (restrictions on appeals to Court of Appeal)—
(a)
in subsection (1)(h)(i), for the word “custody" there shall be substituted “
residence"
”
; and
(b)
in subsection (1)(h)(ii) for the words “access to", in both places, there shall be substituted “
contact with"
”
.
(2)
“(2A)
Subsection (2) does not apply with respect to a child who is the subject of a care order (as defined by section 105 of the Children Act 1989).”
(3)
“(ii)
the exercise of the inherent jurisdiction of the High Court with respect to minors, the maintenance of minors and any proceedings under the Children Act 1989, except proceedings solely for the appointment of a guardian of a minor’s estate;”.
The Armed Forces Act 1981 (c. 55)
46
In section 14 of the Armed Forces Act 1981 (temporary removal to, and detention in, place of safety abroad or in the United Kingdom of service children in need of care and control), in subsection (9A) for the words “the Children and Young Persons Act 1933, the Children and Young Persons Act 1969" there shall be substituted “
the Children Act 1989"
”
.
The Civil Jurisdiction and Judgments Act 1982 (c. 27)
47
In paragraph 5(a) of Schedule 5 to the Civil Jurisdiction and Judgments Act 1982 (maintenance and similar payments excluded from Schedule 4 to that Act) for the words “section 47 or 51 of the Child Care Act 1980" there shall be substituted “
paragraph 23 of Schedule 2 to the Children Act 1989"
”
.
The Mental Health Act 1983 (c. 20)
48
(1)
“27 Children and young persons in care.
Where—
(a)
a patient who is a child or young person is in the care of a local authority by virtue of a care order within the meaning of the Children Act 1989; or
(b)
the rights and powers of a parent of a patient who is a child or young person are vested in a local authority by virtue of section 16 of the Social Work (Scotland) Act 1968,
the authority shall be deemed to be the nearest relative of the patient in preference to any person except the patient’s husband or wife (if any).”
(2)
Section 28 of that Act (nearest relative of minor under guardianship, etc.) is amended as mentioned in sub-paragraphs (3) and (4).
(3)
“(1)
Where—
(a)
a guardian has been appointed for a person who has not attained the age of eighteen years; or
(b)
a residence order (as defined by section 8 of the Children Act 1989) is in force with respect to such a person,
the guardian (or guardians, where there is more than one) or the person named in the residence order shall, to the exclusion of any other person, be deemed to be his nearest relative.”
(4)
“(3)
In this section “guardian” does not include a guardian under this Part of this Act.”
(5)
F983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Registered Homes Act 1984 (c. 23)
F98449
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Mental Health (Scotland) Act 1984 (c. 36)
50
F985. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Matrimonial and Family Proceedings Act 1984 (c. 42)
51
In section 38(2)(b) of the Matrimonial and Family Proceedings Act 1984 (transfer of family proceedings from High Court to county court) after the words “a ward of court" there shall be inserted “
or any other proceedings which relate to the exercise of the inherent jurisdiction of the High Court with respect to minors"
”
.
The Police and Criminal Evidence Act 1984 (c. 60)
52
In section 37(14) of the Police and Criminal Evidence Act 1984 (duties of custody officer before charge) after the words “Children and Young Persons Act 1969" there shall be inserted “
or in Part IV of the Children Act 1989"
”
.
53
F986(1)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2)
“(6A)
In this section “local authority accommodation” means accommodation provided by or on behalf of a local authority (within the meaning of the Children Act 1989).
(6B)
Where an arrested juvenile is moved to local authority accommodation under subsection (6) above, it shall be lawful for any person acting on behalf of the authority to detain him.”.
(3)
In subsection (8) of that section for the words “Children and Young Persons Act 1969" there shall be substituted “
Children Act 1989"
”
.
54
In section 39(4) of that Act (responsibilities in relation to persons detained) for the words “transferred to the care of a local authority in pursuance of arrangements made" there shall be substituted “
moved to local authority accommodation"
”
.
55
In Schedule 2 to that Act (preserved powers of arrest) in the entry relating to the Children and Young Persons Act 1969 for the words “Sections 28(2) and" there shall be substituted “
Section"
”
.
The Surrogacy Arrangements Act 1985 (c. 49)
56
In section 1(2)(b) of the Surrogacy Arrangements Act 1985 (meaning of “surrogate mother", etc.) for the words “the parental rights being exercised" there shall be substituted “
parental responsibility being met"
”
.
The Child Abduction and Custody Act 1985 (c. 60)
57
(1)
In section 9(a) and 20(2)(a) of the Child Abduction and Custody Act 1985 (orders with respect to which court’s powers suspended), for the words “any other order under section 1(2) of the Children and Young Persons Act 1969" there shall be substituted “
a supervision order under section 31 of the Children Act 1989"
”
.
(2)
“(4)
In this Act a decision relating to rights of access in England and Wales means a decision as to the contact which a child may, or may not, have with any person.”
(3)
“1
The following are the orders referred to in section 27(1) of this Act—
(a)
a care order under the Children Act 1989 (as defined by section 31(11) of that Act, read with section 105(1) and Schedule 14);
(b)
a residence order (as defined by section 8 of the Act of 1989); and
(c)
any order made by a court in England and Wales under any of the following enactments—
(i)
section 9(1), 10(1)(a) or 11(a) of the Guardianship of Minors Act 1971;
(ii)
section 42(1) or (2) or 43(1) of the Matrimonial Causes Act 1973;
(iii)
section 2(2)(b), 4(b) or (5) of the Guardianship Act 1973 as applied by section 34(5) of the Children Act 1975;
(iv)
section 8(2)(a), 10(1) or 19(1)(ii) of the Domestic Proceedings and Magistrates Courts Act 1978;
(v)
section 26(1)(b) of the Adoption Act 1976.”
The Disabled Persons (Services, Consultation and Representation) Act 1986 (c. 33)
58
In section 1(3) of the Disabled Persons (Services, Consultation and Representation) Act 1986 (circumstances in which regulations may provide for the appointment of authorised representatives of disabled persons)—
(a)
“(i)
the parent of a disabled person under the age of sixteen, or
(ii)
any other person who is not a parent of his but who has parental responsibility for him”; and
(b)
in paragraph (b), for the words “in the care of" there shall be substituted “
looked after by"
”
.
59
(1)
Section 2 of that Act (circumstances in which authorised representative has right to visit etc. disabled person) shall be amended as follows.
(2)
In subsection (3)(a) for the words from second “the" to “by" there shall be substituted “
for the words “if so requested by the disabled person" there shall be substituted “if so requested by any person mentioned in section 1(3)(a)(i) or (ii)">."
”
(3)
“(bb)
in accommodation provided by or on behalf of a local authority under Part III of the Children Act 1989, or”.
(4)
“(cc)
in accommodation provided by a voluntary organisation in accordance with arrangements made by a local authority under section 17 of the Children Act 1989, or”.
60
In section 5(7)(b) of that Act (disabled persons leaving special education) for the word “guardian" there shall be substituted “
other person who is not a parent of his but who has parental responsibility for him"
”
.
61
(1)
“means—
(i)
in the case of a person aged eighteen or over, a person to whom section 29 of the 1948 Act applies, and
(ii)
in the case of a person under the age of eighteen, a person who is disabled within the meaning of Part III of the Children Act 1989”.
(2)
““parental responsibility” has the same meaning as in the Children Act 1989.”
(3)
In the definition of “the welfare enactments" in that section, in paragraph (a) after the words “the 1977 Act" there shall be inserted “
and Part III of the Children Act 1989"
”
.
(4)
“(2)
In this Act any reference to a child who is looked after by a local authority has the same meaning as in the Children Act 1989.”
The Family Law Act 1986 (c. 55)
62
(1)
The Family Law Act 1986 shall be amended as follows.
(2)
Subject to paragraphs 63 to 71, in Part I—
(a)
for the words “custody order", in each place where they occur, there shall be substituted “
Part I order"
”
;
(b)
for the words “proceedings with respect to the custody of", in each place where they occur, there shall be substituted “
Part I proceedings with respect to"
”
; and
(c)
for the words “matters relating to the custody of", in each place where they occur, there shall be substituted “
Part I matters relating to"
”
.
(3)
“(7)
In this Part—
(a)
references to Part I proceedings in respect of a child are references to any proceedings for a Part I order or an order corresponding to a Part I order and include, in relation to proceedings outside the United Kingdom, references to proceedings before a tribunal or other authority having power under the law having effect there to determine Part I matters; and
(b)
references to Part I matters are references to matters that might be determined by a Part I order or an order corresponding to a Part I order.”
63
(1)
In section 1 (orders to which Part I of the Act of 1986 applies), in subsection (1)—
(a)
“(a)
a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order”; and
(b)
“(d)
an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children—
(i)
so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but
(ii)
excluding an order varying or revoking such an order;
(e)
an order made by the High Court in Northern Ireland in the exercise of its jurisdiction relating to wardship—
(i)
so far as it gives care and control of a child to any person or provides for the education of or access to a child; but
(ii)
excluding an order relating to a child of whom care or care and control is (immediately after the making of the order) vested in the Department of Health and Social Services or a Health and Social Services Board.”
F987(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)
“(3)
In this Part, “Part I order”—
(a)
includes any order which would have been a custody order by virtue of this section in any form in which it was in force at any time before its amendment by the Children Act 1989; and
(b)
(subject to sections 32 and 40 of this Act) excludes any order which would have been excluded from being a custody order by virtue of this section in any such form.”
64
“2 Jurisdiction: general.
(1)
A court in England and Wales shall not have jurisdiction to make a section 1(1)(a) order with respect to a child in or in connection with matrimonial proceedings in England and Wales unless the condition in section 2A of this Act is satisfied.
(2)
A court in England and Wales shall not have jurisdiction to make a section 1(1)(a) order in a non-matrimonial case (that is to say, where the condition in section 2A of this Act is not satisfied) unless the condition in section 3 of this Act is satisfied.
(3)
A court in England and Wales shall not have jurisdiction to make a section 1(1)(d) order unless—
(a)
the condition in section 3 of this Act is satisfied, or
(b)
the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection.
2A Jurisdiction in or in connection with matrimonial proceedings.
(1)
The condition referred to in section 2(1) of this Act is that the matrimonial proceedings are proceedings in respect of the marriage of the parents of the child concerned and—
(a)
the proceedings—
(i)
are proceedings for divorce or nullity of marriage, and
(ii)
are continuing;
(b)
the proceedings—
(i)
are proceedings for judicial separation,
(ii)
are continuing,
and the jurisdiction of the court is not excluded by subsection (2) below; or
(c)
the proceedings have been dismissed after the beginning of the trial but—
(i)
the section 1(1)(a) order is being made forthwith, or
(ii)
the application for the order was made on or before the dismissal.
(2)
For the purposes of subsection (1)(b) above, the jurisdiction of the court is excluded if, after the grant of a decree of judicial separation, on the relevant date, proceedings for divorce or nullity in respect of the marriage are continuing in Scotland or Northern Ireland.
(3)
Subsection (2) above shall not apply if the court in which the other proceedings there referred to are continuing has made—
(a)
an order under section 13(6) or 21(5) of this Act (not being an order made by virtue of section 13(6)(a)(i)), or
(b)
an order under section 14(2) or 22(2) of this Act which is recorded as being made for the purpose of enabling Part I proceedings to be taken in England and Wales with respect to the child concerned.
(4)
Where a court—
(a)
has jurisdiction to make a section 1(1)(a) order in or in connection with matrimonial proceedings, but
(b)
considers that it would be more appropriate for Part I matters relating to the child to be determined outside England and Wales,
the court may by order direct that, while the order under this subsection is in force, no section 1(1)(a) order shall be made by any court in or in connection with those proceedings.”
65
(1)
In section 3 (habitual residence or presence of child concerned) in subsection (1) for “section 2" there shall be substituted “section 2(2)".
(2)
In subsection (2) of that section for the words “proceedings for divorce, nullity or judicial separation" there shall be substituted “matrimonial proceedings".
66
(1)
“(3)
A court in England and Wales shall not have jurisdiction to vary a Part I order if, on the relevant date, matrimonial proceedings are continuing in Scotland or Northern Ireland in respect of the marriage of the parents of the child concerned.
(3A)
Subsection (3) above shall not apply if—
(a)
the Part I order was made in or in connection with proceedings for divorce or nullity in England and Wales in respect of the marriage of the parents of the child concerned; and
(b)
those proceedings are continuing.
(3B)
Subsection (3) above shall not apply if—
(a)
the Part I order was made in or in connection with proceedings for judicial separation in England and Wales;
(b)
those proceedings are continuing; and
(c)
the decree of judicial separation has not yet been granted.”
(2)
In subsection (5) of that section for the words from “variation of" to “if the ward" there shall be substituted “
variation of a section 1(1)(d) order if the child concerned"
”
.
(3)
“(6)
Subsection (7) below applies where a Part I order which is—
(a)
a residence order (within the meaning of the Children Act 1989) in favour of a person with respect to a child,
(b)
an order made in the exercise of the High Court’s inherent jurisdiction with respect to children by virtue of which a person has care of a child, or
(c)
an order—
(i)
of a kind mentioned in section 1(3)(a) of this Act,
(ii)
under which a person is entitled to the actual possession of a child,
ceases to have effect in relation to that person by virtue of subsection (1) above.
(7)
Where this subsection applies, any family assistance order made under section 16 of the Children Act 1989 with respect to the child shall also cease to have effect.
(8)
For the purposes of subsection (7) above the reference to a family assistance order under section 16 of the Children Act 1989 shall be deemed to include a reference to an order for the supervision of a child made under—
(a)
section 7(4) of the Family Law Reform Act 1969,
(b)
section 44 of the Matrimonial Causes Act 1973,
(c)
section 2(2)(a) of the Guardianship Act 1973,
(d)
section 34(5) or 36(3)(b) of the Children Act 1975, or
(e)
section 9 of the Domestic Proceedings and Magistrates’ Courts Act 1978;
but this subsection shall cease to have effect once all such orders for the supervision of children have ceased to have effect in accordance with Schedule 14 to the Children Act 1989.”
67
“7 Interpretation of Chapter II.
In this Chapter—
(a)
“child” means a person who has not attained the age of eighteen;
(b)
“matrimonial proceedings” means proceedings for divorce, nullity of marriage or judicial separation;
(c)
“the relevant date” means, in relation to the making or variation of an order—
(i)
where an application is made for an order to be made or varied, the date of the application (or first application, if two or more are determined together), and
(ii)
where no such application is made, the date on which the court is considering whether to make or, as the case may be, vary the order; and
(d)
“section 1(1)(a) order” and “section 1(1)(d) order” mean orders falling within section 1(1)(a) and (d) of this Act respectively.”
68
In each of the following sections—
(a)
section 11(2)(a) (provisions supplementary to sections 9 and 10),
(b)
section 13(5)(a) (jurisdiction ancillary to matrimonial proceedings),
(c)
section 20(3)(a) (habitual residence or presence of child),
(d)
section 21(4)(a) (jurisdiction in divorce proceedings, etc.), and
(e)
section 23(4)(a) (duration and variation of custody orders),
for “4(5)" there shall be substituted “
2A(4)"
”
.
69
In each of the following sections—
F988(a)
section 19(2) (jurisdiction in cases other than divorce, etc.),
(b)
section 20(6) (habitual residence or presence of child), and
(c)
section 23(5) (duration and variation of custody orders),
for “section 1(1)(d)" there shall be substituted “
section 1(1)(e)"
”
.
70
“(a)
section 14 of the Children Act 1989”.
71
(1)
In section 42 (general interpretation of Part I), in subsection (4)(a) for the words “has been boarded out with those parties" there shall be substituted “
is placed with those parties as foster parents"
”
.
(2)
In subsection (6) of that section, in paragraph (a) after the word “person" there shall be inserted “
to be allowed contact with or"
”
.
The Local Government Act 1988 (c. 9)
72
“(c)
section 53 of the Children Act 1989.”
Amendments of local Acts
73
(1)
Section 16 of the M83Greater London Council (General Powers) Act 1981 (exemption from provisions of Part IV of the Act of certain premises) shall be amended as follows.
F989(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F989(3)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)
In paragraph (i), for the words “section 8 of the Foster Children Act 1980" there shall be substituted “
section 67 of the Children Act 1989"
”
.
74
(1)
Section 10(2) of the M84Greater London Council (General Powers) Act 1984 (exemption from provisions of Part IV of the Act of certain premises) shall be amended as follows.
F990(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)
In paragraph (e), for the words “section 8 of the Foster Children Act 1980" there shall be substituted “
section 67 of the Children Act 1989"
”
.
F990(4)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 14 Transitionals and Savings
Pending proceedings, etc.
1
(1)
F991Subject to sub-paragraphs (1A) and (4), nothing in any provision of this Act (other than the repeals mentioned in sub-paragraph (2)) shall affect any proceedings which are pending immediately before the commencement of that provision.
F992(1A)
Proceedings pursuant to section 7(2) of the Family Law Reform Act 1969 (committal of wards of court to care of local authority) or in the exercise of the High Court’s inherent jurisdiction with respect to children which are pending in relation to a child who has been placed or allowed to remain in the care of a local authority shall not be treated as pending proceedings after 13th October 1992 for the purposes of this Schedule if no final order has been made by that date pursuant to section 7(2) of the 1969 Act or in the exercise of the High Court’s inherent jurisdiction in respect of the child’s care.
(2)
The repeals are those of—
(a)
section 42(3) of the M85Matrimonial Causes Act 1973 (declaration by court that party to marriage unfit to have custody of children of family); and
(b)
section 38 of the M86Sexual Offences Act 1956 (power of court to divest person of authority over girl or boy in cases of incest).
(3)
For the purposes of the following provisions of this Schedule, any reference to an order in force immediately before the commencement of a provision of this Act shall be construed as including a reference to an order made after that commencement in proceedings pending before that commencement.
(4)
Sub-paragraph (3) is not to be read as making the order in question have effect from a date earlier than that on which it was made.
(5)
An order under section 96(3) may make such provision with respect to the application of the order in relation to proceedings which are pending when the order comes into force as the Lord Chancellor considers appropriate.
2
Where, immediately before the day on which Part IV comes into force, there was in force an order under section 3(1) of the M87Children and Young Persons Act 1963 (order directing a local authority to bring a child or young person before a F993youth court under section 1 of the Children and Young Persons Act 1969), the order shall cease to have effect on that day.
CUSTODY ORDERS, ETC.
Cessation of declarations of unfitness, etc.
3
Where, immediately before the day on which Parts I and II come into force, there was in force—
(a)
a declaration under section 42(3) of the Matrimonial Causes Act 1973 (declaration by court that party to marriage unfit to have custody of children of family); or
(b)
an order under section 38(1) of the Sexual Offences Act 1956 divesting a person of authority over a girl or boy in a case of incest;
the declaration or, as the case may be, the order shall cease to have effect on that day.
The Family Law Reform Act 1987 (c. 42)
Conversion of orders under section 4
4
Where, immediately before the day on which Parts I and II come into force, there was in force an order under section 4(1) of the Family Law Reform Act 1987 (order giving father parental rights and duties in relation to a child), then, on and after that day, the order shall be deemed to be an order under section 4 of this Act giving the father parental responsibility for the child.
Orders to which paragraphs 6 to 11 apply
5
(1)
In paragraphs 6 to 11 “an existing order” means any order which—
(a)
is in force immediately before the commencement of Parts I and II;
(b)
was made under any enactment mentioned in sub-paragraph (2);
(c)
determines all or any of the following—
(i)
who is to have custody of a child;
(ii)
who is to have care and control of a child;
(iii)
who is to have access to a child;
(iv) any matter with respect to a child’s education or upbringing; and
(d)
is not an order of a kind mentioned in paragraph 15(1).
(2)
The enactments are—
(a)
the M88Domestic Proceedings and Magistrates’ Courts Act 1978;
(b)
the M89Children Act 1975;
(c)
the M90Matrimonial Causes Act 1973;
(d)
the Guardianship of Minors Acts 1971 and 1973;
(e)
the M91Matrimonial Causes Act 1965;
(f)
the M92Matrimonial Proceedings (Magistrates’ Courts) Act 1960.
(3)
For the purposes of this paragraph and paragraphs 6 to 11 “custody” includes legal custody and joint as well as sole custody but does not include access.
Parental responsibility of parents
6
(1)
Where—
(a)
a child’s father and mother were married to each other at the time of his birth; and
(b)
there is an existing order with respect to the child,
each parent shall have parental responsibility for the child in accordance with section 2 as modified by sub-paragraph (3).
(2)
Where—
(a)
a child’s father and mother were not married to each other at the time of his birth; and
(b)
there is an existing order with respect to the child,
section 2 shall apply as modified by sub-paragraphs (3) and (4).
(3)
“(8)
The fact that a person has parental responsibility for a child does not entitle him to act in a way which would be incompatible with any existing order or any order made under this Act with respect to the child”.
(4)
The modifications are that—
(a)
for the purposes of section 2(2), where the father has custody or care and control of the child by virtue of any existing order, the court shall be deemed to have made (at the commencement of that section) an order under section 4(1) giving him parental responsibility for the child; and
(b)
where by virtue of paragraph (a) a court is deemed to have made an order under section 4(1) in favour of a father who has care and control of a child by virtue of an existing order, the court shall not bring the order under section 4(1) to an end at any time while he has care and control of the child by virtue of the order.
Persons who are not parents but who have custody or care and control
7
(1)
Where a person who is not the parent or guardian of a child has custody or care and control of him by virtue of an existing order, that person shall have parental responsibility for him so long as he continues to have that custody or care and control by virtue of the order.
(2)
Where sub-paragraph (1) applies, F994Parts I and II and paragraph 15 of Schedule I shall have effect as modified by this paragraph.
(3)
The modifications are that—
(a)
“(8)
The fact that a person has parental responsibility for a child does not entitle him to act in a way which would be incompatible with any existing order or with any order made under this Act with respect to the child”;
(b)
“(c)
any person who has custody or care and control of a child by virtue of any existing order”; and
(c)
“(cc)
where immediately before the care order was made there was an existing order by virtue of which a person had custody or care and control of the child, that person.”
F995(d)
“15
Where a child lives with a person as the result of a custodianship order within the meaning of section 33 of the Children Act 1975, a local authority may make contributions to that person towards the cost of the accommodation and maintenance of the child so long as that person continues to have legal custody of that child by virtue of the order.”
Persons who have care and control
8
(1)
Sub-paragraphs (2) to (6) apply where a person has care and control of a child by virtue of an existing order, but they shall cease to apply when that order ceases to have effect.
(2)
Section 5 shall have effect as if—
(a)
for any reference to a residence order in favour of a parent or guardian there were substituted a reference to any existing order by virtue of which the parent or guardian has care and control of the child; and
(b)
“(9)
Subsections (1) and (7) do not apply if the existing order referred to in paragraph (b) of those subsections was one by virtue of which a surviving parent of the child also had care and control of him.”
(3)
“(i)
in any case where by virtue of an existing order any person or persons has or have care and control of the child, has the consent of that person or each of those persons”.
(4)
Section 20 shall have effect as if for subsection (9)(a) there were substituted “
who has care and control of the child by virtue of an existing order."
”
(5)
“(c)
where the child is in care and immediately before the care order was made there was an existing order by virtue of which a person had care and control of the child, that person.”
(6)
In Schedule 1, paragraphs 1(1) and 14(1) shall have effect as if for the words “in whose favour a residence order is in force with respect to the child" there were substituted “
who has been given care and control of the child by virtue of an existing order"
”
.
Persons who have access
9
(1)
Sub-paragraphs (2) to (4) apply where a person has access by virtue of an existing order.
(2)
“(5A)
Any person who has access to a child by virtue of an existing order is entitled to apply for a contact order.”
(3)
“(bb)
any person who has access to the child by virtue of an existing order.”
(4)
“(dd)
any person who has been given access to him by virtue of an existing order.”
Enforcement of certain existing orders
10
(1)
Sub-paragraph (2) applies in relation to any existing order which, but for the repeal by this Act of—
(a)
section 13(1) of the Guardianship M93of Minors Act 1971;
(b)
section 43(1) of the M94Children Act 1975; or
(c)
section 33 of the M95Domestic Proceedings and Magistrates’ Courts Act 1978,
(provisions concerning the enforcement of custody orders) might have been enforced as if it were an order requiring a person to give up a child to another person.
(2)
Where this sub-paragraph applies, the existing order may, after the repeal of the enactments mentioned in sub-paragraph (1)(a) to (c), be enforced under section 14 as if—
(a)
any reference to a residence order were a reference to the existing order; and
(b)
any reference to a person in whose favour the residence order is in force were a reference to a person to whom actual custody of the child is given by an existing order which is in force.
(3)
In sub-paragraph (2) “actual custody”, in relation to a child, means the actual possession of his person.
Discharge of existing orders
11
(1)
The making of a residence order or a care order with respect to a child who is the subject of an existing order discharges the existing order.
(2)
Where the court makes any section 8 order (other than a residence order) with respect to a child with respect to whom any existing order is in force, the existing order shall have effect subject to the section 8 order.
(3)
The court may discharge an existing order which is in force with respect to a child—
(a)
in any family proceedings relating to the child or in which any question arises with respect to the child’s welfare; or
(b)
on the application of—
(i)
any parent or guardian of the child;
(ii)
the child himself; or
(iii)
any person named in the order.
(4)
A child may not apply for the discharge of an existing order except with the leave of the court.
(5)
The power in sub-paragraph (3) to discharge an existing order includes the power to discharge any part of the order
(6)
In considering whether to discharge an order under the power conferred by sub-paragraph (3) the court shall, if the discharge of the order is opposed by any party to the proceedings, have regard in particular to the matters mentioned in section 1(3).
GUARDIANS
Existing guardians to be guardians under this Act
12
(1)
Any appointment of a person as guardian of a child which—
(a)
was made—
(i)
under sections 3 to 5 of the M96Guardianship of Minors Act 1971;
(ii)
under section 38(3) of the M97Sexual Offences Act 1956; or
(iii)
under the High Court’s inherent jurisdiction with respect to children; and
(b)
has taken effect before the commencement of section 5,
shall (subject to sub-paragraph (2)) be deemed, on and after the commencement of section 5, to be an appointment made and having effect under that section.
(2)
Where an appointment of a person as guardian of a child has effect under section 5 by virtue of sub-paragraph (1)(a)(ii), the appointment shall not have effect for a period which is longer than any period specified in the order.
Appointment of guardian not yet in effect
13
Any appointment of a person to be a guardian of a child—
(a)
which was made as mentioned in paragraph 12(1)(a)(i); but
(b)
which, immediately before the commencement of section 5, had not taken effect,
shall take effect in accordance with section 5 (as modified, where it applies, by paragraph 8(2)).
Persons deemed to be appointed as guardians under existing wills
14
For the purposes of the M98Wills Act 1837 and of this Act any disposition by will and testament or devise of the custody and tuition of any child, made before the commencement of section 5 and paragraph 1 of Schedule 13, shall be deemed to be an appointment by will of a guardian of the child.
CHILDREN IN CARE
Children in compulsory care
15
(1)
Sub-paragraph (2) applies where, immediately before the day on which Part IV comes into force, a person was—
(a)
in care by virtue of—
(i)
a care order under section 1 of the M99Children and Young Persons Act 1969;
(ii)
a care order under section 15 of that Act, on discharging a supervision order made under section 1 of that Act; or
(iii)
an order or authorisation under section 25 or 26 of that Act;
F996(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)
in care—
(i)
under section 2 of the M100Child Care Act 1980; or
(ii)
by virtue of paragraph 1 of Schedule 4 to that Act (which extends the meaning of a child in care under section 2 to include children in care under section 1 of the M101Children Act 1948),
and a child in respect of whom a resolution under section 3 of the Act of 1980 or section 2 of the Act of 1948 was in force;
(d)
a child in respect of whom a resolution had been passed under section 65 of the Child Care Act 1980;
(e)
in care by virtue of an order under—
(i)
section 2(1)(e) of the M102Matrimonial Proceedings (Magistrates’ Courts) Act 1960;
(ii)
section 7(2) of the M103Family Law Reform Act 1969;
(iii)
section 43(1) of the M104Matrimonial Causes Act 1973; or
(iv)
section 2(2)(b) of the M105Guardianship Act 1973;
(v)
section 10 of the M106Domestic Proceedings and Magistrates’ Courts Act 1978,
(orders having effect for certain purposes as if the child had been received into care under section 2 of the Child Care Act 1980);
(f)
in care by virtue of an order made, on the revocation of a custodianship order, under section 36 of the M107Children Act 1975; F997. . .
(g)
in care by virtue of an order made, on the refusal of an adoption order, under section 26 of the M108Adoption Act 1976 or any order having effect (by virtue of paragraph 1 of Schedule 2 to that Act) as if made under that section.
F998; or—
(h)
in care by virtue of an order of the court made in the exercise of the High Court’s inherent jurisdiction with respect to children,
(2)
Where this sub-paragraph applies, then, on and after the day on which Part IV commences—
(a)
the order or resolution in question shall be deemed to be a care order;
(b)
the authority in whose care the person was immediately before that commencement shall be deemed to be the authority designated in that deemed care order; and
(c)
any reference to a child in the care of a local authority shall include a reference to a person who is the subject of such a deemed care order,
and the provisions of this Act shall apply accordingly, subject to paragraph 16.
Modifications
16
(1)
Sub-paragraph (2) only applies where a person who is the subject of a care order by virtue of paragraph 15(2) is a person falling within sub-paragraph (1)(a) F999. . . of that paragraph.
(2)
Where the person would otherwise have remained in care until reaching the age of nineteen, by virtue of—
(a)
section 20(3)(a) or 21(1) of the Children M109and Young Persons Act 1969; F1000. . .
F1000(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
this Act applies as if in section 91(12) for the word “eighteen" there were substituted “
nineteen"
”
F1001(3)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1002(3A)
Where in respect of a child who has been placed or allowed to remain in the care of a local authority pursuant to section 7(2) of the Family Law Reform Act 1969 or in the exercise of the High Court’s inherent jurisdiction and the child is still in the care of a local authority, proceedings have ceased by virtue of paragraph 1 (1A) to be treated as pending, paragraph 15(2) shall apply on 14th October 1992 as if the child was in care pursuant to an order as specified in paragraph 15(1)(e)(ii) or (h) as the case may be.
(4)
(5)
F1005Subject to sub-paragraph (6),Where a court, on making the order, or at any time thereafter, gave directions F1006-
(a)
under section 4(4)(a) of the Guardianship Act 1973;
(b)
under section 43(5)(a) of the Matrimonial Causes Act 1973; or
(c)
in the exercise of the High Court’s inherent jurisdiction with respect to children,
as to the exercise by the authority of any powers, those directions shall F1007, subject to the provisions of section 25 of this Act and of any regulations made under that section,continue to have effect (regardless of any conflicting provision in this Act F1008other than section 25) until varied or discharged by a court under this sub-paragraph.
F1009(6)
Where directions referred to in sub-paragraph (5) are to the effect that a child be placed in accommodation provided for the purpose of restricting liberty then the directions shall cease to have effect upon the expiry of the maximum period specified by regulations under section 25(2)(a) in relation to children of his description, calculated from 14th October 1991.
Cessation of wardship where ward in care
F101016A
F1011-(1)
Where a child who is a ward of court is in care by virtue of—
(a)
an order under section 7(2) of the Family Law Reform Act 1969; or
(b)
an order made in the exercise of the High Court’s inherent jurisdication with respect to children,
he shall, on the day on which Part IV commences, cease to be a ward of court.
F1012(2)
Where immediately before the day on which Part IV commences a child was in the care of a local authority and as a result of an order—
(a)
pursuant to section 7(2) of the Family Law Reform Act 1969; or
(b)
made in the exercise of the High Court’s inherent jurisdiction with respect to children,
continued to be in the care of a local authority and was made a ward of court, he shall on the day on which Part IV commences, cease to be a ward of court.
F1012(3)
Sub-paragraphs (1) and (2) do not apply in proceedings which are pending.
Children placed with parent etc. while in compulsory care
17
(1)
This paragraph applies where a child is deemed by paragraph 15 to be in the care of a local authority under an order or resolution which is deemed by that paragraph to be a care order.
(2)
If, immediately before the day on which Part III comes into force, the child was allowed to be under the charge and control of—
(a)
a parent or guardian under section 21(2) of the M110Child Care Act 1980; or
(b)
a person who, before the child was in the authority’s care, had care and control of the child by virtue of an order falling within paragraph 5,
on and after that day the provision made by and under section 23(5) shall apply as if the child had been placed with the person in question in accordance with that provision.
Orders for access to children in compulsory care
18
(1)
This paragraph applies to any access order—
(a)
made under section 12C of the Child Care Act 1980 (access orders with respect to children in care of local authorities); and
(b)
in force immediately before the commencement of Part IV.
(2)
On and after the commencement of Part IV, the access order shall have effect as an order made under section 34 in favour of the person named in the order.
F101318A
(1)
This paragraph applies to any decision of a local authority to terminate arrangements for access or to refuse to make such arrangements—
(a)
of which notice has been given under, and in accordance with, section 12B of the Child Care Act 1980 (termination of access); and
(b)
which is in force immediately before the commencement of Part IV.
(2)
On and after the commencement of Part IV, a decision to which this paragraph applies shall have effect as a court order made under section 34(4) authorising the local authority to refuse to allow contact between the child and the person to whom notice was given under section 12B of the Child Care Act 1980.
19
(1)
This paragraph applies where, immediately before the commencement of Part IV, an access order made under section 12C of the Act of 1980 was suspended by virtue of an order made under section 12E of that Act (suspension of access orders in emergencies).
(2)
The suspending order shall continue to have effect as if this Act had not been passed.
(3)
If—
(a)
before the commencement of Part IV; and
(b)
during the period for which the operation of the access order is suspended,
the local authority concerned made an application for its variation or discharge to an appropriate F1014youth court, its operation shall be suspended until the date on which the application to vary or discharge it is determined or abandoned.
Children in voluntary care
20
(1)
This paragraph applies where, immediately before the day on which Part III comes into force—
(a)
a child was in the care of a local authority—
(i)
under section 2(1) of the Child Care M111Act 1980; or
(ii)
by virtue of paragraph 1 of Schedule 4 to that Act (which extends the meaning of references to children in care under section 2 to include references to children in care under section 1 of the M112Children Act 1948); and
(b)
he was not a person in respect of whom a resolution under section 3 of the Act of 1980 or section 2 of the Act of 1948 was in force.
(2)
Where this paragraph applies, the child shall, on and after the day mentioned in sub-paragraph (1), be treated for the purposes of this Act as a child who is provided with accommodation by the local authority under Part III, but he shall cease to be so treated once he ceases to be so accommodated in accordance with the provisions of Part III.
(3)
Where—
(a)
this paragraph applies; and
(b)
the child, immediately before the day mentioned in sub-paragraph (1), was (by virtue of section 21(2) of the Act of 1980) under the charge and control of a person falling within paragraph 17(2)(a) or (b),
the child shall not be treated for the purposes of this Act as if he were being looked after by the authority concerned.
Boarded out children
21
(1)
Where, immediately before the day on which Part III comes into force, a child in the care of a local authority—
(a)
was—
(i)
boarded out with a person under section 21(1)(a) of the Child Care Act 1980; or
(ii)
placed under the charge and control of a person, under section 21(2) of that Act; and
(b)
the person with whom he was boarded out, or (as the case may be) placed, was not a person falling within paragraph 17(2)(a) or (b),
on and after that day, he shall be treated (subject to sub-paragraph (2)) as having been placed with a local authority foster parent and shall cease to be so treated when he ceases to be placed with that person in accordance with the provisions of this Act.
(2)
Regulations made under section 23(2)(a) shall not apply in relation to a person who is a local authority foster parent by virtue of sub-paragraph (1) before the end of the period of twelve months beginning with the day on which Part III comes into force and accordingly that person shall for that period be subject—
(a)
in a case falling within sub-paragraph (1)(a)(i), to terms and regulations mentioned in section 21(1)(a) of the Act of 1980; and
(b)
in a case falling within sub-paragraph (1)(a)(ii), to terms fixed under section 21(2) of that Act and regulations made under section 22A of that Act,
as if that Act had not been repealed by this Act.
Children in care to qualify for advice and assistance
22
Any reference in Part III to a person qualifying for advice and assistance shall be construed as including a reference to a person within the area of the local authority in question who is under twenty-one and who was, at any time after reaching the age of sixteen but while still a child—
(a)
a person falling within—
(i)
any of paragraphs (a) to F1015(h) of paragraph 15(1); or
(ii)
paragraph 20(1); or
(b)
the subject of a criminal care order (within the meaning of paragraph 34).
Emigration of children in care
23
Where—
(a)
the Secretary of State has received a request in writing from a local authority that he give his consent under section 24 of the Child M113Care Act 1980 to the emigration of a child in their care; but
(b)
immediately before the repeal of the Act of 1980 by this Act, he has not determined whether or not to give his consent,
section 24 of the Act of 1980 shall continue to apply (regardless of that repeal) until the Secretary of State has determined whether or not to give his consent to the request.
Contributions for maintenance of children in care
24
(1)
Where, immediately before the day on which Part III of Schedule 2 comes into force, there was in force an order made (or having effect as if made) under any of the enactments mentioned in sub-paragraph (2), then, on and after that day—
(a)
the order shall have effect as if made under paragraph 23(2) of Schedule 2 against a person liable to contribute; and
(b)
Part III of Schedule 2 shall apply to the order, subject to the modifications in sub-paragraph (3).
(2)
The enactments are—
(a)
section 11(4) of the Domestic M114Proceedings and Magistrates’ Courts Act 1978;
(b)
section 26(2) of the M115Adoption Act 1976;
(c)
section 36(5) of the M116Children Act 1975;
(d)
section 2(3) of the M117Guardianship Act 1973;
(e)
section 2(1)(h) of the M118Matrimonial Proceedings (Magistrates’ Courts) Act 1960,
(provisions empowering the court to make an order requiring a person to make periodical payments to a local authority in respect of a child in care).
(3)
The modifications are that, in paragraph 23 of Schedule 2—
(a)
in sub-paragraph (4), paragraph (a) shall be omitted;
(b)
“(6)
Where—
(a)
a contribution order is in force;
(b)
the authority serve a contribution notice under paragraph 22; and
(c)
the contributor and the authority reach an agreement under paragraph 22(7) in respect of the contribution notice,
the effect of the agreement shall be to discharge the order from the date on which it is agreed that the agreement shall take effect”; and
(c)
“and
(c)
where the order is against a person who is not a parent of the child, shall be made with due regard to—
(i)
whether that person had assumed responsibility for the maintenance of the child, and, if so, the extent to which and basis on which he assumed that responsibility and the length of the period during which he met that responsibility;
(ii)
whether he did so knowing that the child was not his child;
(iii)
the liability of any other person to maintain the child.”
SUPERVISION ORDERS
25
(1)
This paragraph applies to any supervision order—
(a)
made—
(i)
under section 1(3)(b) of the Children M119and Young Persons Act 1969; or
(ii)
under section 21(2) of that Act on the discharge of a care order made under section 1(3)(c) of that Act; and
(b)
in force immediately before the commencement of Part IV.
(2)
On and after the commencement of Part IV, the order shall be deemed to be a supervision order made under section 31 and—
(a)
any requirement of the order that the child reside with a named individual shall continue to have effect while the order remains in force, unless the court otherwise directs;
(b)
any other requirement imposed by the court, or directions given by the supervisor, shall be deemed to have been imposed or given under the appropriate provisions of Schedule 3.
(3)
Where, immediately before the commencement of Part IV, the order had been in force for a period of F1016six months or more, it shall cease to have effect at the end of the period of six months beginning with the day on which Part IV comes into force unless—
(a)
the court directs that it shall cease to have effect at the end of a different period (which shall not exceed three years);
(b)
it ceases to have effect earlier in accordance with section 91; or
(c)
it would have ceased to have had effect earlier had this Act not been passed.
(4)
Where sub-paragraph (3) applies, paragraph 6 of Schedule 3 shall not apply.
(5)
Where, immediately before the commencement of Part IV, the order had been in force for less than six months it shall cease to have effect in accordance with section 91 and paragraph 6 of Schedule 3 unless—
(a)
the court directs that it shall cease to have effect at the end of a different period (which shall not exceed three years); or
(b)
it would have ceased to have had effect earlier had this Act not been passed.
Other supervision orders
26
(1)
This paragraph applies to any order for the supervision of a child which was in force immediately before the commencement of Part IV and was made under—
(a)
section 2(1)(f) of the Matrimonial M120Proceedings (Magistrates Courts) Act 1960;
(b)
section 7(4) of the M121Family Law Reform Act 1969;
(c)
section 44 of the M122Matrimonial Causes Act 1973;
(d)
section 2(2)(a) of the M123Guardianship Act 1973;
(e)
section 34(5) or 36(3)(b) of the M124Children Act 1975;
(f)
section 26(1)(a) of the M125Adoption Act 1976; or
(g)
section 9 of the M126Domestic Proceedings and Magistrates Courts Act 1978.
(2)
The order shall not be deemed to be a supervision order made under any provision of this Act but shall nevertheless continue in force for a period of one year beginning with the day on which Part IV comes into force unless—
(a)
the court directs that it shall cease to have effect at the end of a lesser period; or
(b)
it would have ceased to have had effect earlier had this Act not been passed.
Place of safety orders
27
(1)
This paragraph applies to—
(a)
any order or warrant authorising the removal of a child to a place of safety which—
(i)
was made, or issued, under any of the enactments mentioned in sub-paragraph (2); and
(ii)
was in force immediately before the commencement of Part IV; and
(b)
any interim order made under section 23(5) of the Children M127and Young Persons Act 1963 or section 28(6) of the Children and Young Persons Act M1281969.
(2)
The enactments are—
(a)
section 40 of the M129Children and Young Persons Act 1933 (warrant to search for or remove child);
(b)
section 28(1) of the M130Children and Young Persons Act 1969 (detention of child in place of safety);
(c)
section 34(1) of the M131Adoption Act 1976 (removal of protected children from unsuitable surroundings);
(d)
section 12(1) of the M132Foster Children Act 1980 (removal of foster children kept in unsuitable surroundings).
(3)
The order or warrant shall continue to have effect as if this Act had not been passed.
(4)
Any enactment repealed by this Act shall continue to have effect in relation to the order or warrant so far as is necessary for the purposes of securing that the effect of the order is what it would have been had this Act not been passed.
(5)
Sub-paragraph (4) does not apply to the power to make an interim order or further interim order given by section 23(5) of the M133Children and Young Persons Act 1963 or section 28(6) of the Children and Young Persons Act 1969.
(6)
Where, immediately before section 28 of the Children and Young Persons Act 1969 is repealed by this Act, a child is being detained under the powers granted by that section, he may continue to be detained in accordance with that section but subsection (6) shall not apply.
Recovery of children
28
The repeal by this Act of subsection (1) of section 16 of the M134Child Care Act 1980 (arrest of child absent from compulsory care) shall not affect the operation of that section in relation to any child arrested before the coming into force of the repeal.
29
(1)
This paragraph applies where—
(a)
a summons has been issued under section 15 or 16 of the Child Care Act 1980 (recovery of children in voluntary or compulsory care); and
(b)
the child concerned is not produced in accordance with the summons before the repeal of that section by this Act comes into force.
(2)
The summons, any warrant issued in connection with it and section 15 or (as the case may be) section 16, shall continue to have effect as if this Act had not been passed.
30
The amendment by paragraph 27 of Schedule 12 of section 32 of the Children and Young Persons Act 1969 (detention of absentees) shall not affect the operation of that section in relation to—
(a)
any child arrested; or
(b)
any summons or warrant issued,
under that section before the coming into force of that paragraph.
Voluntary organisations: Parental rights resolutions
31
(1)
This paragraph applies to a resolution—
(a)
made under section 64 of the Child Care Act 1980 (transfer of parental rights and duties to voluntary organisations); and
(b)
in force immediately before the commencement of Part IV.
(2)
The resolution shall continue to have effect until the end of the period of six months beginning with the day on which Part IV comes into force unless it is brought to an end earlier in accordance with the provisions of the Act of 1980 preserved by this paragraph.
(3)
While the resolution remains in force, any relevant provisions of, or made under, the Act of 1980 shall continue to have effect with respect to it.
(4)
Sub-paragraph (3) does not apply to—
(a)
section 62 of the Act of 1980 and any regulations made under that section (arrangements by voluntary organisations for emigration of children); or
(b)
section 65 of the Act of 1980 (duty of local authority to assume parental rights and duties).
(5)
Section 5(2) of the Act of 1980 (which is applied to resolutions under Part VI of that Act by section 64(7) of that Act) shall have effect with respect to the resolution as if the reference in paragraph (c) to an appointment of a guardian under section 5 of the M135Guardianship of Minors Act 1971 were a reference to an appointment of a guardian under section 5 of this Act.
Foster children
32
(1)
This paragraph applies where—
(a)
immediately before the commencement of Part VIII, a child was a foster child within the meaning of the M136Foster Children Act 1980; and
(b)
the circumstances of the case are such that, had Parts VIII and IX then been in force, he would have been treated for the purposes of this Act as a child who was being provided with accommodation in a children’s home and not as a child who was being privately fostered.
(2)
If the child continues to be cared for and provided with accommodation as before, section 63(1) and (10) shall not apply in relation to him if—
(a)
an application for registration of the home in question is made under section 63 before the end of the period of three months beginning with the day on which Part VIII comes into force; and
(b)
the application has not been refused or, if it has been refused—
(i)
the period for an appeal against the decision has not expired; or
(ii)
an appeal against the refusal has been made but has not been determined or abandoned.
(3)
While section 63(1) and (10) does not apply, the child shall be treated as a privately fostered child for the purposes of Part IX.
Nurseries and child minding
33
(1)
Sub-paragraph (2) applies where, immediately before the commencement of Part X, any premises are registered under section 1(1)(a) of the M137Nurseries and Child-Minders Regulation Act 1948 (registration of premises, other than premises wholly or mainly used as private dwellings, where children are received to be looked after).
(2)
During the transitional period, the provisions of the Act of 1948 shall continue to have effect with respect to those premises to the exclusion of Part X.
(3)
Nothing in sub-paragraph (2) shall prevent the local authority concerned from registering any person under section 71(1)(b) with respect to the premises.
(4)
In this paragraph “the transitional period” means the period ending with—
(a)
the first anniversary of the commencement of Part X; or
(b)
if earlier, the date on which the local authority concerned registers any person under section 71(1)(b) with respect to the premises.
34
(1)
Sub-paragraph (2) applies where, immediately before the commencement of Part X—
(a)
a person is registered under section 1(1)(b) of the Act of 1948 (registration of persons who for reward receive into their homes children under the age of five to be looked after); and
(b)
all the children looked after by him as mentioned in section 1(1)(b) of that Act are under the age of five.
(2)
During the transitional period, the provisions of the Act of 1948 shall continue to have effect with respect to that person to the exclusion of Part X.
(3)
Nothing in sub-paragraph (2) shall prevent the local authority concerned from registering that person under section 71(1)(a).
(4)
In this paragraph “the transitional period” means the period ending with—
(a)
the first anniversary of the commencement of Part X; or
(b)
if earlier, the date on which the local authority concerned registers that person under section 71(1)(a).
Children accommodated in certain establishments
35
In calculating, for the purposes of section 85(1)(a) or 86(1)(a), the period of time for which a child has been accommodated any part of that period which fell before the day on which that section came into force shall be disregarded.
Criminal care orders
36
(1)
This paragraph applies where, immediately before the commencement of section 90(2) there was in force an order (“a criminal care order") made—
(a)
under section 7(7)(a) of the M138Children and Young Persons Act 1969 (alteration in treatment of young offenders etc.); or
(b)
under section 15(1) of that Act, on discharging a supervision order made under section 7(7)(b) of that Act.
(2)
The criminal care order shall continue to have effect until the end of the period of six months beginning with the day on which section 90(2) comes into force unless it is brought to an end earlier in accordance with—
(a)
the provisions of the Act of 1969 preserved by sub-paragraph (3)(a); or
(b)
this paragraph.
(3)
While the criminal care order remains in force, any relevant provisions—
(a)
of the Act of 1969; and
(b)
of the M139Child Care Act 1980,
shall continue to have effect with respect to it.
(4)
While the criminal care order remains in force, a court may, on the application of the appropriate person, make—
(a)
a residence order;
(b)
a care order or a supervision order under section 31;
(c)
an education supervision order under section 36 (regardless of subsection (6) of that section); or
(d)
an order falling within sub-paragraph (5),
and shall, on making any of those orders, discharge the criminal care order.
(5)
The order mentioned in sub-paragraph (4)(d) is an order having effect as if it were a supervision order of a kind mentioned in section 12AA of the Act of 1969 (as inserted by paragraph 23 of Schedule 12), that is to say, a supervision order—
(a)
imposing a requirement that the child shall live for a specified period in local authority accommodation; but
(b)
in relation to which the conditions mentioned in F1017subsection (6) of section 12AA are not required to be satisfied.
(6)
The maximum period which may be specified in an order made under sub-paragraph (4)(d) is six months and such an order may stipulate that the child shall not live with a named person.
(7)
Where this paragraph applies, section 5 of the M140Rehabilitation of Offenders Act 1974 (rehabilitation periods for particular sentences) shall have effect regardless of the repeals in it made by this Act.
(8)
In sub-paragraph (4) “appropriate person” means—
(a)
in the case of an application for a residence order, any person (other than a local authority) who has the leave of the court;
(b)
in the case of an application for an education supervision order, a local education authority; and
(c)
in any other case, the local authority to whose care the child was committed by the order.
MISCELLANEOUS
Consents under the Marriage Act 1949 (c. 76)
37
(1)
In the circumstances mentioned in sub-paragraph (2), section 3 of and Schedule 2 to the Marriage Act 1949 (consents to marry) shall continue to have effect regardless of the amendment of that Act by paragraph 5 of Schedule 12.
(2)
The circumstances are that—
(a)
immediately before the day on which paragraph 5 of Schedule 12 comes into force, there is in force—
(i)
an existing order, as defined in paragraph 5(1); or
(ii)
an order of a kind mentioned in paragraph 16(1); and
(b)
section 3 of and Schedule 2 to the Act of 1949 would, but for this Act, have applied to the marriage of the child who is the subject of the order.
The Children Act 1975 (c. 72)
38
The amendments of other enactments made by the following provisions of the Children Act 1975 shall continue to have effect regardless of the repeal of the Act of 1975 by this Act—
(a)
section 68(4), (5) and (7) (amendments of section 32 of the M141Children and Young Persons Act 1969); and
(b)
in Schedule 3—
(i)
paragraph 13 (amendments of M142Births and Deaths Registration Act 1953);
(ii)
paragraph 43 (amendment of M143Perpetuities and Accumulations Act 1964);
(iii)
paragraphs 46 and 47 (amendments of M144Health Services and Public Health Act 1968); and
(iv)
paragraph 77 (amendment of M145Parliamentary and Other Pensions Act 1972).
The Child Care Act 1980 (c. 5)
39
The amendment made to section 106(2)(a) of the M146Children and Young Persons Act 1933 by paragraph 26 of Schedule 5 to the Child Care Act 1980 shall continue to have effect regardless of the repeal of the Act of 1980 by this Act.
Legal aid
F101840
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SCHEDULE 15 Repeals
1891 c. 3. | The Custody of Children Act 1891. | The whole Act. |
1933 c. 12. | The Children and Young Persons Act 1933. | In section 14(2), the words from “may also" to “together, and". |
In section 34(8), “(a)" and the words from “and (b)" to the end. | ||
Section 40. | ||
In section 107(1), the definitions of “care order" and “interim order". | ||
1944 c. 31. | The Education Act 1944. | In section 40(1), the words from “or to imprisonment" to the end. |
In section 114(1), the definition of parent. | ||
1948 c. 53. | The Nurseries and Child-Minders Regulation Act 1948. | The whole Act. |
1949 c. 76. | The Marriage Act 1949. | In section 3(1), the words “unless the child is subject to a custodianship order, when the consent of the custodian and, where the custodian is the husband or wife of a parent of the child of that parent shall be required". |
Section 78(1A). | ||
Schedule 2. | ||
1956 c. 69. | The Sexual Offences Act 1956. | Section 38. |
1959 c. 72. | The Mental Health Act 1959. | Section 9. |
1963 c. 37. | The Children and Young Persons Act 1963. | Section 3. |
Section 23. | ||
In section 29(1), the words “under section 1 of the Children and Young Persons Act 1969 or". | ||
Section 53(3). | ||
In Schedule 3, paragraph 11. | ||
1964 c. 42. | The Administration of Justice Act 1964. | In section 38, the definition of “domestic court". |
1968 c. 46. | The Health Services and Public Health Act 1968. | Section 60. |
In section 64(3)(a), sub-paragraphs (vi), (vii), (ix) and (xv). | ||
In section 65(3)(b), paragraphs (vii), (viii) and (x). | ||
1968 c. 49. | The Social Work (Scotland) Act 1968. | Section 1(4)(a). |
Section 5(2)(d). | ||
In section 86(3), the words “the Child Care Act 1980 or". | ||
In Schedule 8, paragraph 20. | ||
1969 c. 46. | The Family Law Reform Act 1969. | Section 7. |
1969 c. 54. | The Children and Young Persons Act 1969. | Sections 1 to 3. |
In section 7, in subsection (7) the words “to subsection (7A) of this section and", paragraph (a) and the words from “and subsection (13) of section 2 of this Act" to the end; and subsection (7A). | ||
Section 7A. | ||
In section 8(3), the words from “and as if the reference to acquittal" to the end. | ||
In section 9(1), the words “proceedings under section 1 of this Act or". | ||
Section 11A. | ||
Section 14A. | ||
In section 15, in subsection (1) the words “and may on discharging the supervision order make a care order (other than an interim order) in respect of the supervised person"; in subsection (2) the words “and the supervision order was not made by virtue of section 1 of this Act or on the occasion of the discharge of a care order"; in subsection (2A), the words “or made by a court on discharging a care order made under that subsection"; and in subsection (4), the words “or made by a court on discharging a care order made under that section". | ||
In section 16, in subsection (6)(a), the words “a care order or"; and in subsection (8) the words “or, in a case where a parent or guardian of his was a party to the proceedings on an application under the preceding section by virtue of an order under section 32A of this Act, the parent or guardian". | ||
In section 17, paragraphs (b) and (c). | ||
Sections 20 to 22. | ||
Section 27(4). | ||
Section 28. | ||
Sections 32A to 32C. | ||
In section 34(2) the words “under section 1 of this Act or", the words “2(3) or" and the words “and accordingly in the case of such a person the reference in section 1(1) of this Act to the said section 2(3) shall be construed as including a reference to this subsection". | ||
In section 70, in subsection (1), the definitions of “care order" and “interim order"; and in subsection (2) the words “21(2), 22(4) or (6) or 28(5)" and the words “care order or warrant". | ||
In Schedule 5, paragraphs 12(1), 37, 47 and 48. | ||
1970 c. 34. | The Marriage (Registrar General’s Licence) Act 1970. | In section 3(b), the words from “as amended" to “1969". |
1970 c. 42. | The Local Authority Social Services Act 1970. | In Schedule 1, in the entry relating to the Children and Young Persons Act 1969, the words “welfare, etc. of foster children"; the entries relating to the Matrimonial Causes Act 1973, section 44, the Domestic Proceedings and Magistrates’ Courts Act 1978, section 9, the Child Care Act 1980 and the Foster Children Act 1980. |
1971 c. 3. | The Guardianship of Minors Act 1971. | The whole Act. |
1971 c. 23. | The Courts Act 1971. | In Schedule 8, paragraph 59(1). |
1972 c. 18. | The Maintenance Orders (Reciprocal Enforcement) Act 1972. | Section 41. |
1972 c. 70. | The Local Government Act 1972. | In Schedule 23, paragraphs 4 and 9(3). |
1972 c. 71. | The Criminal Justice Act 1972. | Section 51(1). |
1973 c. 18. | The Matrimonial Causes Act 1973. | Sections 42 to 44. |
In section 52(1), the definition of “custody". | ||
In Schedule 2, paragraph 11. | ||
1973 c. 29. | The Guardianship Act 1973. | The whole Act. |
1973 c. 45. | The Domicile and Matrimonial Proceedings Act 1973. | In Schedule 1, in paragraph 11(1) the definitions of “custody" and “education" and in paragraph 11(3) the word “four". |
1973 c. 62. | The Powers of Criminal Courts Act 1973. | In section 13(1), the words “and the purposes of section 1(2)(bb) of the Children and Young Persons Act 1969". |
In Schedule 3, in paragraph 3(2A), the word “and" immediately preceding paragraph (b). | ||
1974 c. 53. | The Rehabilitation of Offenders Act 1974. | In section 1(4)(b) the words “or in care proceedings under section 1 of the Children and Young Persons Act 1969". |
In section 5, in subsection 5(e), the words “a care order or"; and in subsection (10) the words “care order or". | ||
1975 c. 72. | The Children Act 1975. | The whole Act. |
1976 c. 36. | The Adoption Act 1976. | Section 11(5). |
Section 14(3). | ||
In section 15, in subsection (1), the words from “subject" to “cases)" and subsection (4). | ||
Section 26. | ||
In section 28(5), the words “or the organisation". | ||
Section 34. | ||
Section 36(1)(c). | ||
Section 37(1), (3) and (4). | ||
Section 55(4). | ||
In section 57, in subsection (2), the words from “and the court" to the end and subsections (4) to (10). | ||
In section 72(1), the definition of “place of safety", in the definition of “local authority" the words from “ and" to the end and, in the definition of “specified order", the words “Northern Ireland or". | ||
In Schedule 3, paragraphs 8, 11, 19, 21, and 22. | ||
1977 c. 45. | The Criminal Law Act 1977. | Section 58(3). |
1977 c. 49. | The National Health Service Act 1977. | In section 21, in subsection (1)(a) the words “and young children". |
In Schedule 8, in paragraph 1(1), the words from “and of children" to the end; in paragraph 2(2) the words from “or (b) to persons who" to “arrangements"; and in paragraph 3(1) “(a)" and the words from “or (b) a child" to “school age". | ||
In Schedule 15, paragraphs 10 and 25. | ||
1978 c. 22. | The Domestic Proceedings and Magistrates’ Courts Act 1978. | Sections 9 to 15. |
In section 19, in subsection (1) the words “following powers, that is to say" and sub-paragraph (ii), subsections (2) and (4), in subsection (7) the words “and one interim custody order" and in subsection (9) the words “or 21". | ||
In section 20, subsection (4) and in subsection (9) the words “subject to the provisions of section 11(8) of this Act". | ||
Section 21. | ||
In section 24, the words “or 21" in both places where they occur. | ||
In section 25, in subsection (1) paragraph (b) and the word “or" immediately preceding it and in subsection (2) paragraphs (c) and (d). | ||
Section 29(4). | ||
Sections 33 and 34. | ||
Sections 36 to 53. | ||
Sections 64 to 72. | ||
Sections 73(1) and 74(1) and (3). | ||
In section 88(1), the definition of “actual custody". | ||
In Schedule 2, paragraphs 22, 23, 27, 29, 31, 36, 41 to 43, 46 to 50. | ||
1978 c. 28. | The Adoption (Scotland) Act 1978. | In section 20(3)(c), the words “section 12(3)(b) of the Adoption Act 1976 or of". |
In section 45(5), the word “approved". | ||
Section 49(4). | ||
In section 65(1), in the definition of “local authority", the words from “and" to the end and, in the definition of “specified order", the words “Northern Ireland or". | ||
1978 c. 30. | The Interpretation Act 1978. | In Schedule 1, the entry with respect to the construction of certain expressions relating to children. |
1980 c. 5. | The Child Care Act 1980. | The whole Act. |
1980 c. 6. | The Foster Children Act 1980. | The whole Act. |
1980 c. 43. | The Magistrates’ Courts Act 1980. | In section 65(1), paragraphs (e) and (g) and the paragraph (m) inserted in section 65 by paragraph 82 of Schedule 2 to the Family Law Reform Act 1987. |
In section 81(8), in the definition of “guardian" the words “by deed or will" and in the definition of “sums adjudged to be paid by a conviction" the words from “as applied" to the end. | ||
In section 143(2), paragraph (i). | ||
In Schedule 7, paragraphs 78, 83, 91, 92, 110, 116, 117, 138, 157, 158, 165, 166 and 199 to 201. | ||
1981 c. 60. | The Education Act 1981. | In Schedule 3, paragraph 9. |
1982 c. 20. | The Children’s Homes Act 1982. | The whole Act. |
1982 c. 48. | The Criminal Justice Act 1982. | Sections 22 to 25. |
Section 27. | ||
In Schedule 14, paragraphs 45 and 46. | ||
1983 c. 20. | The Mental Health Act 1983. | In section 26(5), paragraph (d) and the word “or" immediately preceding it. |
In section 28(1), the words “(including an order under section 38 of the Sexual Offences Act 1956)". | ||
In Schedule 4, paragraphs 12, 26(a), (b) and (c), 35, 44, 50 and 51. | ||
1983 c. 41. | The Health and Social Services and Social Security Adjudications Act 1983. | Section 4(1). |
Sections 5 and 6. | ||
In section 11, in subsection (2) the words “the Child Care Act 1980 and the Children’s Homes Act 1982". | ||
In section 19, subsections (1) to (5). | ||
Schedule 1. | ||
In Schedule 2, paragraphs 3, 9 to 14, 20 to 24, 27, 28, 34, 37 and 46 to 62. | ||
In Schedule 4, paragraphs 38 to 48. | ||
In Schedule 9, paragraphs 5, 16 and 17. | ||
1984 c. 23. | The Registered Homes Act 1984. | In Schedule 1, in paragraph 5, sub-paragraph (a) and paragraphs 6, 7 and 8. |
1984 c. 28. | The County Courts Act 1984. | In Schedule 2, paragraph 56. |
1984 c. 37. | The Child Abduction Act 1984. | In section 3, the word “and" immediately preceding paragraph (c). |
In the Schedule, in paragraph 1(2) the words “or voluntary organisation" and paragraph 3(1)(e). | ||
1984 c. 42. | The Matrimonial and Family Proceedings Act 1984. | In Schedule 1, paragraphs 19 and 23. |
1984 c. 56. | The Foster Children (Scotland) Act 1984. | In section 1, the words “for a period of more than 6 days" and the words from “The period" to the end. |
In section 7(1), the word “or" at the end of paragraph (e). | ||
In Schedule 2, paragraphs 1 to 3 and 8. | ||
1984 c. 60. | The Police and Criminal Evidence Act 1984. | In section 37(15), the words “and is not excluded from this Part of this Act by section 52 below". |
Section 39(5). | ||
Section 52. | ||
In section 118(1), in the definition of parent or guardian, paragraph (b) and the word “and" immediately preceding it. | ||
In Schedule 2, the entry relating to section 16 of the Child Care Act 1980. | ||
In Schedule 6, paragraphs 19(a) and 22. | ||
1985 c. 23. | The Prosecution of Offences Act 1985. | Section 27. |
1985 c. 60. | The Child Abduction and Custody Act 1985. | Section 9(c). |
Section 20(2)(b) and (c). | ||
Section 25(3) and (5). | ||
In Schedule 3, paragraph 1(2). | ||
1986 c. 28. | The Children and Young Persons (Amendment) Act 1986. | The whole Act. |
1986 c. 33. | The Disabled Persons (Services, Consultation and Representation) Act 1986. | In section 16, in the definition of “guardian", paragraph (a). |
1986 c. 45. | The Insolvency Act 1986. | In section 281(5)(b), the words “in domestic proceedings". |
1986 c. 50. | The Social Security Act 1986. | In Schedule 10, paragraph 51. |
1986 c. 55. | The Family Law Act 1986. | In section 1(2), in paragraph (a) the words “(a) or" and paragraph (b). |
Section 3(4) to (6). | ||
Section 4. | ||
Section 35(1). | ||
In section 42(6), in paragraph (b) the words “section 42(6) of the Matrimonial Causes Act 1973 or", in paragraph (c) the words “section 42(7) of that Act or" and in paragraph (d) the words “section 19(6) of the Domestic Proceedings and Magistrates’ Courts Act 1978 or". | ||
In Schedule 1, paragraphs 10, 11, 13, 16, 17, 20 and 23. | ||
1987 c. 42. | The Family Law Reform Act 1987. | Section 3. |
Sections 4 to 7. | ||
Sections 9 to 16. | ||
In Schedule 2, paragraphs 11, 14, 51, 67, 68, 94 and 95. | ||
In Schedule 3, paragraphs 11 and 12. | ||
1988 c. 34. | The Legal Aid Act 1988. | Section 3(4)(c). |
Section 27. | ||
Section 28. | ||
In section 30, subsections (1) and (2). | ||
In Part I of Schedule 2, paragraph 2(a) and (e). |