Children Act 2004
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highlight no. 220 Children Act 2004 Background In September 2003, the government published Every Child Matters 1 , its Green Paper proposals for the future of children’s services (see Highlight no.204). Every Child Matters proposes whole system changes to the way in which children’s services are planned, commissioned and delivered, with a renewed emphasis on prevention and early intervention. Children’s services are to be measured within a framework of five key outcomes for children and young people, described in the green paper as: being healthy, staying safe, enjoying and achieving, making a positive contribution, and achieving economic well-being. Keeping Children Safe, 2 the government’s response to the Victoria Climbié Inquiry 3 chaired by Lord Laming, was also published. While asserting that the existing legislative framework for safeguarding children contained in the Children Act 1989 was sound, the government noted serious flaws in the implementation of the law, many of which could be improved through the development of new shared statutory duties, joint guidance and better practice. Specific actions would address inadequacies in terms of governance and accountability in local children’s services, the sharing of information on individual children both within and across agencies, and responsibility for being aware of and protecting children living in private foster care arrangements. A third volume, A Better Education for Children in Care, a review from the Social Exclusion Unit on the education of looked after children, 4 accompanied the Green Paper. Although significant improvements have been made in recent years (for example, 56 per cent of care leavers achieved at least one GCSE in 2003/4 compared with 34 per cent in 1999/2000), their results still lag behind those of the general child population (96 per cent of all school children achieved at least one GCSE in 2003/4). 5 The Children Bill was published in March 2004 alongside Every Child Matters: Next steps, 6 an overview of responses to the original consultation paper with more detailed information about government plans for taking forward its proposals. Although the Every Child Matters programme covers England only, many of the measures in the Children Bill extend to Wales. The Bill received Royal Assent on 15 November 2004, to become the Children Act 2004. 7 Children Act 2004 The Act comprises six parts and five schedules as follows: 1. Children’s Commissioner (with Schedule 1) 2. Children’s services in England includes local authority structural changes, local safeguarding children boards, information sharing, and joint inspections (Schedule 2 deals with the Director of Children’s Services) 3. Children’s services in Wales 4. Advisory and support services for family proceedings (Wales) (with Schedule 3) 5. Miscellaneous (Schedule 4 includes amendments for child minding and day care) 6. General (Schedule 5 provides the list of repeals) The Children’s Commissioner Part 1 of the Act establishes the office of the Children’s Commissioner for England, which is independent from government (a ‘corporation sole’), and has powers to cooperate with other public authorities in the United Kingdom. The Commissioner’s general function is defined as ‘promoting awareness of the views and interests of children in England’, in particular as they relate to five ‘aspects of their well-being’. Though differently worded, they mirror the five outcomes for children in Every Child Matters. In law, they are: • physical and mental health of children • protection of children from harm and neglect • education, training and recreation • contribution made by children to society • the social and economic well-being of children. Although ‘child’ generally refers to the Children Act 1989 definition of ‘a person under the age of 18’, s.9 stipulates that the Commissioner’s responsibilities also apply to young people leaving care, and those with a learning disability up to the age of 21. In addition, the Commissioner has a particular responsibility to ascertain the views of hard-to-reach groups of children. The Commissioner must have regard to the United Nations Convention on the Rights of the Child. The Commissioner may not conduct an investigation on behalf of an individual child, but may either initiate s.3 or be directed to initiate an inquiry s.4 into cases that have a wider public policy implication. Relationships with the Children’s Commissioners for Northern Ireland, Scotland and Wales are less clear, and in many cases are to be negotiated between the Commissioners themselves. In law, this post is responsible for representing the views and interests of children in non- devolved matters. (See Highlight no.217 on Children's commissioners in the United Kingdom.) Children’s services Sections 10 (England) and 25 (Wales) place a duty on the children’s services authority to make arrangements to promote cooperation between itself and a list of partner agencies that are themselves under a duty to cooperate with the local authority – all in order to improve the well-being of children as measured against the five outcomes for children. A children’s services authority comprises local authority education and children’s social services, as well as other local government services that have an impact on children like housing or leisure. The relevant partners are: district councils; the police authority and chief officer of police; local probation board; youth offending team; Strategic Health Authority and Primary Care Trust in England, or Local Health Board and NHS Trust in Wales; the Connexions Service, and the Learning and Skills Council for England; or the National Council for Education and Training in Wales. ‘Others’ like voluntary and community organisations may be included as partners. The children’s services authority and its partners may establish and maintain a pooled fund and/or pooled resources (defined as staff, goods, services, accommodation or other resources). Joint guidance for England 8 makes it clear that the ‘duty to cooperate’ is the basis for a children’s trust approach to partnership working. The essential features of the children’s trust are: • a child-centred, outcome-led vision that is informed by the views of children and young people • integrated front line delivery which includes reference to co-located staff in extended schools or children’s centres • integrated processes like the use of the Common Assessment Framework or information sharing arrangements • joint planning and commissioning of children’s services • inter-agency governance with the local authority taking the lead. The responsibilities extend to young people leaving care or those with learning difficulties up to the age of 25 who are receiving certain services. Under s.17, children’s services authorities in England must prepare and publish an overarching Children and Young People’s Plan (CYPP) to cover all local children’s services, and to replace a number of existing early years, child protection, teenage pregnancy, youth service and education plans. Guidance to the CYPP 9 stipulates that the plan must include agreed targets and priorities for all services that will affect children and young people in the local area; and identify the actions and activities needed to achieve these targets and ensure
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Transcript of Children Act 2004
highlight no. 220
Children Act 2004
BackgroundIn September 2003, the government published Every Child Matters1, its GreenPaper proposals for the future of children’s services (see Highlight no.204). EveryChild Matters proposes whole system changes to the way in which children’sservices are planned, commissioned and delivered, with a renewed emphasis onprevention and early intervention. Children’s services are to be measured withina framework of five key outcomes for children and young people, described in thegreen paper as: being healthy, staying safe, enjoying and achieving, making apositive contribution, and achieving economic well-being.
Keeping Children Safe,2 the government’s response to the Victoria ClimbiéInquiry3 chaired by Lord Laming, was also published. While asserting that theexisting legislative framework for safeguarding children contained in the ChildrenAct 1989 was sound, the government noted serious flaws in the implementationof the law, many of which could be improved through the development of newshared statutory duties, joint guidance and better practice. Specific actions wouldaddress inadequacies in terms of governance and accountability in local children’sservices, the sharing of information on individual children both within and acrossagencies, and responsibility for being aware of and protecting children living inprivate foster care arrangements.
A third volume, A Better Education for Children in Care, a review from theSocial Exclusion Unit on the education of looked after children,4 accompanied theGreen Paper. Although significant improvements have been made in recent years(for example, 56 per cent of care leavers achieved at least one GCSE in 2003/4compared with 34 per cent in 1999/2000), their results still lag behind those ofthe general child population (96 per cent of all school children achieved at leastone GCSE in 2003/4).5
The Children Bill was published in March 2004 alongside Every Child Matters:Next steps,6 an overview of responses to the original consultation paper withmore detailed information about government plans for taking forward itsproposals. Although the Every Child Matters programme covers England only,many of the measures in the Children Bill extend to Wales. The Bill receivedRoyal Assent on 15 November 2004, to become the Children Act 2004.7
Children Act 2004The Act comprises six parts and five schedules as follows:
1. Children’s Commissioner (with Schedule 1)
2. Children’s services in England includes local authority structuralchanges, local safeguarding children boards, information sharing, andjoint inspections (Schedule 2 deals with the Director of Children’sServices)
3. Children’s services in Wales
4. Advisory and support services for family proceedings (Wales) (withSchedule 3)
5. Miscellaneous (Schedule 4 includes amendments for child minding andday care)
6. General (Schedule 5 provides the list of repeals)
The Children’s CommissionerPart 1 of the Act establishes the office of the Children’s Commissioner forEngland, which is independent from government (a ‘corporation sole’), and haspowers to cooperate with other public authorities in the United Kingdom.
The Commissioner’s general function is defined as ‘promoting awareness of theviews and interests of children in England’, in particular as they relate to five‘aspects of their well-being’. Though differently worded, they mirror the fiveoutcomes for children in Every Child Matters. In law, they are:
• physical and mental health of children
• protection of children from harm and neglect
• education, training and recreation
• contribution made by children to society
• the social and economic well-being of children.
Although ‘child’ generally refers to the Children Act 1989 definition of ‘a personunder the age of 18’, s.9 stipulates that the Commissioner’s responsibilities alsoapply to young people leaving care, and those with a learning disability up to theage of 21. In addition, the Commissioner has a particular responsibility toascertain the views of hard-to-reach groups of children. The Commissioner musthave regard to the United Nations Convention on the Rights of the Child.
The Commissioner may not conduct an investigation on behalf of an individualchild, but may either initiate s.3 or be directed to initiate an inquiry s.4 into casesthat have a wider public policy implication. Relationships with the Children’sCommissioners for Northern Ireland, Scotland and Wales are less clear, and inmany cases are to be negotiated between the Commissioners themselves. In law,this post is responsible for representing the views and interests of children in non-devolved matters. (See Highlight no.217 on Children's commissioners in theUnited Kingdom.)
Children’s servicesSections 10 (England) and 25 (Wales) place a duty on the children’s servicesauthority to make arrangements to promote cooperation between itself and a listof partner agencies that are themselves under a duty to cooperate with the localauthority – all in order to improve the well-being of children as measured againstthe five outcomes for children.
A children’s services authority comprises local authority education and children’ssocial services, as well as other local government services that have an impact onchildren like housing or leisure. The relevant partners are: district councils; thepolice authority and chief officer of police; local probation board; youthoffending team; Strategic Health Authority and Primary Care Trust in England,or Local Health Board and NHS Trust in Wales; the Connexions Service, and theLearning and Skills Council for England; or the National Council for Educationand Training in Wales.
‘Others’ like voluntary and community organisations may be included aspartners. The children’s services authority and its partners may establish andmaintain a pooled fund and/or pooled resources (defined as staff, goods, services,accommodation or other resources).
Joint guidance for England8 makes it clear that the ‘duty to cooperate’ is the basisfor a children’s trust approach to partnership working. The essential features ofthe children’s trust are:
• a child-centred, outcome-led vision that is informed by the views ofchildren and young people
• integrated front line delivery which includes reference to co-located staffin extended schools or children’s centres
• integrated processes like the use of the Common Assessment Frameworkor information sharing arrangements
• joint planning and commissioning of children’s services
• inter-agency governance with the local authority taking the lead.
The responsibilities extend to young people leaving care or those with learningdifficulties up to the age of 25 who are receiving certain services.
Under s.17, children’s services authorities in England must prepare and publishan overarching Children and Young People’s Plan (CYPP) to cover all localchildren’s services, and to replace a number of existing early years, childprotection, teenage pregnancy, youth service and education plans. Guidance tothe CYPP9 stipulates that the plan must include agreed targets and priorities forall services that will affect children and young people in the local area; andidentify the actions and activities needed to achieve these targets and ensure
highlight no. 220Highlight No. 220 © National Children’s Bureau 2005. ISSN: 1365-9081. Highlights may be reproduced by NCBmembers for non-commercial circulation within their own organisation, subject to acknowledgement of source.Contact the Library for further information. National Children’s Bureau, 8 Wakley Street, London EC1V 7QE. Tel: 020 7843 6000. Fax: 020 7278 9512. www.ncb.org.uk
service delivery. Sections 18 and 19 introduce a requirement for children’s servicesauthorities to appoint a Director of Children’s Services (DCS) and a LeadMember with responsibility for children’s services in order to provide,respectively, a professional and political focus for children’s services.10 The DCSis also responsible for the successful working of the local partnership under s.10.Most local authorities should have their children’s trust arrangements in placeand a DCS in post by 2006, and all by 2008.
The Welsh Assembly Government plans to use the Act to give existing Childrenand Young People’s Frameworks and Children’s Partnerships statutory force, andunder s.26 to produce Children and Young People Framework Strategies. Thesewill set out headline objectives and targets for those providing children’s servicesin a local area. Wales will not be introducing children’s trusts, but under s.27 eachlocal authority will be asked to designate both a lead director of, and leadmember for, children and young people’s services. In the health service, NHSTrusts and Local Health Boards will be asked to designate lead directors, officersand members. Draft guidance on the local partnerships11 and planrationalisation12 have been published for consultation.
Safeguarding children and young peopleSections 11 (England) and 28 (Wales) place a general duty to safeguard andpromote the welfare of children on the children’s services authority; districtcouncil; Strategic Health Authority, Special Health Authority, Primary CareTrust, NHS Trust and NHS foundation trust in England or Local Health Boardand NHS trust in Wales; police authority and Chief officer of police; BritishTransport Police; local probation board; youth offending team; governor of aprison or secure training centre including those contracted out to the privatesector; and Connexions staff in England or youth support services in Wales.Statutory guidance for England13 came into force on 1 October 2005.
Under s.13 (England) and 31 (Wales), each children’s services authority mustestablish a Local Safeguarding Children Board (LSCB) with the same list ofpartner agencies and any other relevant bodies. In England only, there must alsobe representation from the Children and Family Court Advisory and SupportService. LSCBs replace the current non-statutory Area Child ProtectionCommittees, and in England must be in place in all local authority areas by 1April 2006. Guidance for LSCBs will be available in an updated WorkingTogether to Safeguard Children14,15 and associated regulations.
Information sharing Sections 12 (England) and 29 (Wales) require children’s services authorities to setup and operate information sharing databases or an electronic child index.Sections 12(4) and 29(4) list the information that may be included in the basicrecord that will be kept on every child: the child’s name, address, gender and dateof birth; a unique identifying number; name and contact details of any personwith parental responsibility or day-to-day care; details of educationalestablishment (or early years provider if relevant); details of primary healthprovider (health visitor or GP); name and contact details of anyone providingservices to the child; and information on any ‘cause for concern’ (the threshold ofwhich is undefined). Records cannot include medical or personal records.
Information sharing pilots involving 15 local authorities grouped into 11Trailblazer areas have been running since 2002/3. Draft cross-governmentguidance on the sharing of information is out for consultation,16 and thegovernment is due to announce a timetable for implementation of the indexes inEngland in Winter 2005. The Welsh Assembly has yet to consult on the newinformation sharing databases.
Joint inspections of children’s servicesSection 20 establishes a new inspection system for Joint Area Reviews in England.Under s.21, a framework for the inspection of children’s services has been issuedby Ofsted.17
Every children’s services authority undergoes an Annual Performance Assessment(APA), carried out by Ofsted and the Commission for Social Care Inspection(CSCI), which are due to be merged by 2008. That inspection exercise is used toanalyse available evidence and help highlight priority areas that need to bescrutinised as part of the new three-yearly Joint Area Review (JAR). FromSeptember 2005, JARs will subsume or replace current inspections by Ofsted andCSCI of council education and children’s social services, as well as inspections ofConnexions, 14 to 19 training and Children’s Fund programmes.
Other measuresSections 44 to 47 strengthen current arrangements for private foster carecontained in the Children Act 1989, and new regulations, guidance and nationalminimum standards came into force on 30 November 2005. If the governmentfeels that these powers are not being used, it may choose to implement s.45 and46 of the Act, which give the Secretary of State or Welsh Assembly Governmentthe power to set up a private foster care registration scheme through regulations.This power will cease to have effect if not used by November 2008. Section 49introduces a power for either the Secretary of State in England or Welsh Assemblyto issue an order relating to the level of payments for foster carers.
The new duty on local authorities to promote the educational achievement oflooked after children appears in s.52 of the Act. Section 53 amends s.17 (childrenin need), 21 (provision of accommodation for children) and 47 (child protectioninvestigations) of the Children Act 1989 to require the local authority to ascertainand consider a child’s wishes and feelings regarding any services it may beproviding.
Section 58, in force from 15 January 2005, removes the defence of reasonablechastisement of children in cases leading to visible and provable injury [battery].However, common assault committed by a parent or person with parentalauthority may still be regarded in law as reasonable punishment.
Child safety orders (CSOs) were introduced in the Crime and Disorder Act 1998,and can be used for children who are under ten years old, the age of criminalresponsibility. Section 60 of the Children Act 2004 amends the original legislationto ensure that the power to make a care order on breach of the CSO meets thesame threshold criteria as under the Children Act 1989. It also extends themaximum duration of the CSO from three to 12 months.
Lisa PayneNational Children’s Bureau October 2005
References1. HM Treasury (2003) Every Child Matters. (Cm 5860). London: TSO.2. Department of Health (2003) Keeping Children Safe: The government’s
response to the Victoria Climbié Inquiry report and Joint Chief Inspectors’report Safeguarding Children. (Cm 5861). London: TSO.
3. Department of Health and Home Office (2003) The Victoria Climbié Inquiry:Report of an inquiry by Lord Laming. (Cm 5730). London: TSO.
4. Social Exclusion Unit (2003) A Better Education for Children in Care.London: Social Exclusion Unit.
5. Department for Education and Skills (2005) Statistics of Education: Outcomeindicators for looked after children, twelve months to 30 September 2004,England. London: DfES.
6. Department for Education and Skills (2004) Every Child Matters: Next steps.London: DfES.
7. Children Act 2004. London: TSO.8. Department for Education and Skills (2005) Statutory Guidance on Inter-
agency Co-operation to Improve the Wellbeing of Children: Children’s trusts.London: DfES.
9. Department for Education and Skills (2005) Guidance on the Children andYoung People’s Plan. London: DfES.
10. Department for Education and Skills (2005) Statutory Guidance on the Roleand Responsibilities of the Director of Children’s Services and the LeadMember for Children’s Services. London: DfES.
11. Welsh Assembly Government (2005) Children and Young People: Rights toaction – stronger partnerships for better outcomes. Draft guidance on localcooperation under the Children Act 2004. Cardiff: WAG.
12. Welsh Assembly Government (2005) Local Government PlanRationalisation. Cardiff: WAG.
13. Department for Education and Skills (2005) Statutory Guidance on MakingArrangements to Safeguard and Promote the Welfare of Children UnderSection 11 of the Children Act 2004. London: DfES.
14. HM Government (2005) Working Together to Safeguard Children: A guideto inter-agency working to safeguard and promote the welfare of children,and Department for Education and Skills (2005) Children and YoungPersons: The local safeguarding children boards regulations. London: DfES.
15. Welsh Assembly Government (2005) Safeguarding Children Together:Safeguarding and promoting the welfare of children in Wales – guidance toLocal Safeguarding Children Boards in Wales. Cardiff: WAG.
16. Department for Education and Skills (2005) Cross-government Guidance:Sharing information on children and young people consultation. London:DfES.
17. Office for Standards in Education and others (2005) Every Child Matters:Framework for the inspection of children’s services. London: Ofsted.
