The Children Act 2004 gained Royal Assent on 15 November 2004. It contains a broad range of measures aimed at promoting the interests of children and young people.
The Act provides for the establishment of a Children's Commissioner for England. The Commissioner’s general function will be to “promoting awareness of the views and interests of children” in England. This compares to the aim of the Children’s Commissioner for Wales which is to “safeguard and promote the rights and welfare of children”. The Commissioner will be able to hold inquiries into cases relating to individual children if they have relevance to the wider policy issues and these may be either initiated at the direction of the Secretary of State or through the Commissioner’s own initiative. The Commissioner is also given powers relating to non-devolved matters in Wales, Scotland and Northern Ireland. He/she will therefore have the function of promoting awareness of the views and interests of children in Wales relating to matters that do not already fall within the remit of the Children’s Commissioner for Wales. He/she will also be able to hold inquiries relating to cases of individual children in relation to these matters either through his/her own initiative or on the direction of the Secretary of State. The Commissioner is required to take account of the views of, and any work undertaken by the Children’s Commissioner for Wales when discharging these functions relating to Wales.
The Act also makes some provisions relating to the Children’s Commissioner for Wales. He will have new powers of entry which will enable him to enter premises, other than private homes, to interview children in relation to issues connected to his functions of reviewing and monitoring arrangements by the Assembly and others.
The Act introduces a duty on local authorities and their partners to co-operate to improve the well-being of children. In Wales, Children and Young People’s Framework Partnerships have already been set up in each local authority to facilitate co-operation between local authorities and these partners. The Act provides the Welsh Assembly Government with the power to issue guidance about the new duty and this will enable them to put the Framework Partnerships, and their sub-groups the Children’s Partnerships, on a statutory footing. These partnerships will thus be brought in line with the Young People’s Partnerships, which already have a statutory basis through the Learning and Skills Act 2000. The Assembly is also given powers to make regulations requiring children’s services authorities in Wales to prepare and publish a single plan or a framework of plans for services to children and young people.
As far as local education authorities are concerned Estyn is given the powers to review the LEAs functions relating to this part of the Act, namely in co-operating to improve well-being and producing children and young people’s plans where these functions relate to education, training or youth support services.
The Act requires each local authority to identify a lead director for children and young people’s services. This person will have the responsibility for planning under the Framework. A lead council member for children and young people will also be appointed to reinforce the director’s role. In addition to this, Local Health Boards and NHS Trusts will be required to appoint lead executive and non-executive directors for children.
Arrangements to Safeguard Children and Promote their Welfare
The Act places a duty on local authorities, health services the police and others, including Youth Offending Teams and local probation boards, to have regard to safeguarding children and promoting their well-being.
Provisions are also made for Area Child Protection Committees to be replaced by Local Safeguarding Children Boards (LSCBs) in both Wales and England. These LSCBs will co-ordinate the work of their members in relating to safeguarding and promoting children’s welfare and will ensure that what is done is effective. This follows the recommendation made by Lord Laming in the report of the Victoria Climbiè Inquiry. It is intended that the statutory footing of the boards should improve their influence over strategic decisions and provide them with more senior management commitment compared to the current Area Child Protection Committees
The Act gives the Assembly the powers to make regulations enabling the establishment of local databases about children. These databases would be used to facilitate the exchange of information by professionals from different agencies. The Assembly will consult further on this matter before introducing these databases in Wales.
Responsibility for CAFCASS the Children and Families Courts Advisory Support Service is being transferred to the National Assembly for Wales. The work of CAFCASS relates to the welfare of children involved in family court proceedings. It promotes the welfare of children before courts dealing with family proceedings, gives advice to courts on applications made to it in such proceedings, makes provision for children to be represented in such proceedings and provides information advice and support to children and their families. The devolution of these responsibilities to Wales is intended to bring the interests of these children into the Assembly’s children’s services agenda.
The Act contains provisions to strengthen the current arrangements for the notification of private fostering to local authorities and will ensure that those involved in private fostering arrangements give local authorities advance notice of it. The Assembly is given the power to make regulations requiring local authorities to monitor the way in which they discharge their functions under Part 9 of the Children Act 1989 which relates to private fostering arrangements.
Additional provisions allow for the Assembly to establish a private foster registration scheme in Wales without additional legislation should the new strengthened arrangements prove not to work effectively.
Provisions are also made so that the Assembly can make an Order relating to the level of payments that should be made to foster parents.
Child Minding and Day Care
A number of changes are made relating to the registration of child minders and providers of day care. These include:
The Assembly will be given new powers enabling it to intervene where local authorities are failing to discharge their duties in respect to their children’s social services. This power of intervention will be similar to the power of intervention relating to an authority’s education functions, which the Assembly already has through the Education Act 1996.
The Education of Looked After Children
A new duty will be placed on local authorities to promote the educational achievement of looked after children. This means that they will have to consider the implications for a child’s education of any decision they make about a child’s welfare.
Ascertaining Children’s Wishes
A new duty will be placed on local authorities to ascertain a child’s wishes and take them into consideration when deciding what services they should provide to safeguard and promote the welfare of a child in need in their area.
Information about Individual Children
Amendments are made to Section 83 of the Children Act 1989, which relates to the information that the Assembly can obtain from local authorities and voluntary organisations. The amendments mean that the information obtained might include details relating to and identifying individual children.
Social Services Committees
The requirement on local authorities in England and Wales to have a social services committee is removed.
Fees Payable to Adoption Review Panel Members
Amendments are made to the Adoption and Children Act 2002 so that fees can be paid to Adoption Panel members, rather than just expenses as it previously stood.
The defence of reasonable chastisement has been changed so that it can no longer be used in situations where an assault on a child causes actual bodily harm.
Power to Give Financial Assistance
The Assembly is given new powers to give or make arrangements for giving financial assistance to promote the welfare of children and their parents and to provide for the support for parenting.
Child Safety Orders
Amendments are made to the Crime and Disorder Act 1998 so that in some situations, where a court determines that a child has failed to comply with the requirements of a child safety order, a parenting order might be made. When a child safety order is breached a court will no longer have the power to make a care order at a lower threshold than is required by Section 31 of the Children Act 1989. The Act also changes the maximum duration of a child safety order from 3 to 12 months.
Publication of Material Relating to Legal Proceedings
Changes are made to the Children Act 1989 so that the publication of information from family proceedings, which is likely to identify a child involved, is only prohibited in relation to the public. Passing on this information to individuals in certain circumstances, however, will not be a criminal offence.
Disclosure of Information by Inland Revenue
Changes are made to the Tax Credit Act 2002 so that the Inland Revenue can share Tax Credit, Child Benefit or Guardian’s Allowance information with local authorities to help with certain enquiries and investigations about the welfare of a child. The information that can be shared does not extend to information about a person’s income.
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