Criminal Justice and Court Services Act 2000

Criminal Justice and Court Services Act 2000

2000 CHAPTER 43

Commentary on Sections

Part II: Protection of Children

Sections 35 and 36: Work in regulated positions

89. Section 35 provides for the offence of seeking, offering, accepting, or continuing to, work with children while under a disqualification order. An individual commits an offence if he knowingly seeks etc. to work with children in a regulated position while disqualified:

• by inclusion (other than provisionally) on the list held by the Department of Health, of those considered unsuitable to work with children, under the Protection of Children Act 1999;

• by inclusion on ‘List 99’, on the grounds of not being a fit person to be employed as a teacher or in certain other areas of education under the Education Reform Act 1988, as amended by the Protection of Children Act 1999;

• by inclusion on any list kept by the Secretary of State or National Assembly of Wales of persons disqualified under Section 470 or 471 of the Education Act 1996 (as being amended by the Care Standards Act 2000 on grounds that they are unsuitable to work with children;

• by a disqualification order made under this Part.

90. An individual also commits an offence if he knowingly offers work in a regulated position to a disqualified person. This is intended to cover the individual who knows someone is disqualified, but nevertheless offers him work in a regulated position. It is also an offence for someone to fail to remove an individual he knows is disqualified from working with children (e.g. to hold open a position for a disqualified person).

91. Subsection (3) provides the defence for an individual who seeks to work with children that he neither knew, nor could be reasonably expected to know, that he was himself disqualified from such work. The provision ‘be reasonably expected to know’ is intended to ensure that an individual cannot escape liability by, for example, moving house to prevent the notification of a disqualification by the Secretary of State being served on him.

92. Subsection (6) sets out the penalty that will follow if an individual is convicted of either offence.

93. Section 36 provides a definition of ‘working with children’ that encompasses all the positions and roles from which those subject to disqualification will be excluded. The definition is deliberately wide-ranging, in order to provide protection for children across as broad an area as possible. However it seeks to ensure that casual contact with children which does not form part of the normal duties of the position or where there is no element of care involved (for example, the supermarket assistant) is excluded, except in some particular areas identified in the Act. Under Section 42 a child is defined as a person under 18. The only exception to this is in Subsection (1)(e) of Section 36 in relation to children in work where the age limit is under 16. This is intended to ensure that those who, for example, supervise children who have left school and are in regular work, are not covered by the definition. Subsection (1) of Section 36 identifies the eight main areas of ‘regulated positions’ to be covered by the disqualification. Subsections (2) to (12) of Section 36 go on to clarify some of these areas:

• Subsection (2) clarifies Subsection (1)(a) by defining the nature of the establishment in which the regulated position is held; these are the areas of work in which it is considered right that all members of staff, whether carers or ancillary staff, should be included;

• Subsection (3) clarifies Subsection (1)(b) by ensuring that it does not apply to any parts of the premises where children are not looked after, or at time when children are not present. This prevents, for example, the need to check workers in another part of a building in which a holiday crèche is held, or the cleaners who clean the premises when the children are not present;

• Subsections (4) and (5) clarify Subsections (1)(c) and (1)(d) by ensuring that they do not apply where the contact is made in the course of a child’s employment;

• Subsection (6) defines Subsection (1)(g), listing positions or roles not otherwise caught by the definition, such as members of a school’s governing body and charitable trustees; these positions are ones which may provide privileged access to children and imply that the individual concerned is a person who can be properly trusted with children, and are therefore included even if contact with children is not a regular part of the position. Subsection (7) clarifies certain of these definitions as they relate to local government, andSubsections (8) and (9) further qualify Subsection (6) for the purposes of applying these measures to Northern Ireland;

• Subsection (10) clarifies Subsection (1)(h) by explaining what is meant by the supervision or management of an individual; and

• Subsections (11) to (14) provide further definition and clarification where necessary.

94. Subsection (15) gives the Secretary of State power to amend the definition of a ‘regulated position’ by affirmative resolution order, should it become apparent that - perhaps because new positions are created or developed - there are positions or roles not covered by this legislation that should be caught.