140.Section 68 deals with cancellation of the registration of a provider registered on the early years register or either part of the general childcare register. It requires the Chief Inspector to cancel registration if a person becomes disqualified from registration and allows him to cancel registration where requirements are not met, conditions are not complied with or fees are not paid. Subsections (3) to (5) allow the Chief Inspector to cancel a childminder’s registration if they appear not to have provided any relevant childminding for more than 3 years of their registration.
141.Section 69 allows the Secretary of State to make regulations to allow a person’s registration to be suspended in certain circumstances. Where a person who is required to be registered has their registration suspended, they may not during that time provide care for children in respect of which they are required to be registered and a person who does so commits an offence.
142.Section 70 allows registered providers to give notice to the Chief Inspector when they wish to be removed from either of the registers. The Chief Inspector is generally required to remove from the register anyone who has given notice. However, the Chief Inspector may not remove the person if the Chief Inspector has already sent notice of his intention to cancel registration and he has not yet decided against that step or if he has already sent notice of a decision to cancel registration and the time for appeal is still running. These restrictions on removal do not apply to providers who wish to be removed from Part B of the general childcare register (which contains the names of those who have registered voluntarily).
143.Section 71 allows the Secretary of State to make regulations specifying a period of time after which voluntary registration will expire. Providers who wished to continue to be registered would be required to reapply for registration on expiry of this period.
144.Section 72 allows the Chief Inspector to apply to a Justice of the Peace for an order cancelling registration, varying or removing a condition on registration or imposing a condition. This application may be made without giving notice to the registered person. The Justice of the Peace has the power to make the order if it appears that a child for whom care is being provided by that person is suffering or is likely to suffer harm. Harm and significant harm are defined by reference to the Children Act 1989 under which harm is defined as ill treatment or impairment of physical or mental health or physical, intellectual, emotional, social or behavioural development, including impairment which may be suffered from seeing or hearing another person being ill-treated. “Significant harm” is defined by reference to the child’s health or development as compared to what could reasonably be expected of another child.
145.Section 73 sets out the procedure for taking certain steps such as refusing an application for registration, imposing, varying, removing or refusing to remove conditions on registration and cancelling registration. Subsection (4) requires the Chief Inspector to give 14 days notice before taking such a step and the person concerned must be given an opportunity to make an objection if he so wishes. However, the Chief Inspector may take such a step before the 14 days is up if the applicant indicates he will not be objecting.
146.The taking of certain steps does not have effect until the time for appealing has expired or, if an appeal is brought, until the appeal is determined. There is an exception to this where the person affected has notified the Chief Inspector that he does not intend to appeal (see subsections (8) and (9)).
147.Section 74 sets out the procedure for appeals and replicates the existing position in the Children Act 1989. The section allows the applicant or registered person to appeal to the Tribunal set up under the Protection of Children Act 1999 (and commonly known as the Care Standards Tribunal) against the taking of the steps specified in subsection (1). Subsection (2) also allows appeals to the Tribunal against any other determinations made by the Chief Inspector which are prescribed in regulations. Subsection (3) makes provision for appeals against orders under section 72 (which deals with protection of children in an emergency).
148.Subsection (4) requires the Tribunal to either confirm the step or determination or direct that it shall not have effect. In some circumstances, the Tribunal may also impose conditions or vary or remove conditions imposed on registration.
149.Section 75 sets out the provisions for disqualification from registration. This is largely based on existing provisions in paragraph 4 of Schedule 9A to the Children Act 1989. It provides for the Secretary of State to make regulations setting out when a person may be disqualified from registration. Subsection (3) sets out particular circumstances in which the regulations may provide for a person to be disqualified. Subsection (4) allows regulations to provide for a person to be disqualified if he lives in the same household as someone who is disqualified or if he lives in a household in which any such person is employed. Subsection (5) makes provision for the regulations to allow the Chief Inspector to waive disqualification in certain circumstances.
150.Section 76 sets out the consequences of disqualification. These are that a disqualified person may not provide any provision in respect of which he is required to be registered (or only exempt from registration by virtue of the provision being made at certain schools). Subsection (3) provides that no one may employ a disqualified person in connection with provision that is required to be registered (or exempt school provision).
151.Contravention of these prohibitions is an offence (see subsection (4)). However there are defences to the offence. Under subsection (5) a person who is disqualified by virtue of living in a household in which a disqualified person lives or works does not commit an offence if he does not know and has no reasonable grounds for believing that a person who lives or works in his household is disqualified. A person who employs someone who is disqualified does not commit an offence if he does not know and has no reasonable grounds for believing that the employee was disqualified.
152.Section 77 gives a person authorised by the Chief Inspector powers of entry at any reasonable time on premises if he has reasonable cause to believe that a person is providing early years or later years provision on the premises without being registered as required by the Act (subsection (1)). It also gives a power of entry on the premises of any registered providers at any reasonable time (subsection (2)).
153.Subsection (7) provides that the person requesting entry under this power must show an authenticated document showing their authority to enter if requested. Under subsection (8) it is an offence intentionally to obstruct a person exercising powers under this section (which include powers to inspect premises and interview in private the person caring for the children). Subsection (9) specifies the penalty for the offence, a fine not exceeding level 4 on the standard scale.
154.There are circumstances in which a power of entry conferred by the Act is exercisable on domestic premises. In particular, many children are looked after in the homes of their childminders.
155.In other cases, children may be looked after in the home of a friend or relative of the childminder or in their own home. In such cases, section 78 generally requires the consent of an adult occupying the property before a power of entry under the Act may be exercised (see subsection (2)). This requirement does not apply to entry under section 77(1) (which covers rights of entry where a person authorised by the Chief Inspector has reasonable cause to believe that that a person is providing early years or later years provision without being registered as required by the Act).
156.Subsection (3) clarifies that the Chief Inspector may impose a condition on registration requiring a provider who operates on premises which are not his own to obtain the necessary consent to entry.
157.Section 79 is based on existing powers in section 102 of the Children Act 1989 allowing a constable to assist in the exercise of powers of entry.
158.Subsection (1) enables a person authorised for the purposes of section 77(1) or (2) to apply for a warrant authorising a police constable to assist him in the exercise of a power conferred by that section.
159.Subsection (2) provides that the court may issue such a warrant if it appears that the authorised person has attempted to exercise a power conferred by section 77 but has been prevented from doing so or that the authorised person is likely to be prevented from exercising any such power. The warrant authorises the use of reasonable force by the constable providing assistance, if this is necessary.
160.Subsection (3) provides that the warrant must be both addressed to and executed by a constable.
161.Subsection (4) provides that Schedule 11 to the Children Act 1989 applies for the purposes of determining jurisdiction in relation to proceedings for the issue of a warrant under this section.
162.Subsection (5) defines what is meant by “court” for the purposes of the section. This is subject to any provision made by or under Schedule 11 of the Children Act 1989 (c.41) determining which court has jurisdiction. The effect of subsections (4) and (5) is that proceedings may be brought in the High Court, county court or magistrates’ court but this is subject to any provision, made by or under Schedule 11 of the Children Act 1989, which has the effect of determining that proceedings must be brought in a particular court.
163.Section 80 allows for the Chief Inspector to combine reports (if he considers it appropriate) in certain cases. For example, he may combine reports where he carries out inspections of compulsorily registered early years provision and compulsorily registered later years provision. This power may be useful where a childminder cares for both young children and older children.
164.This section requires the Chief Inspector to include an account of the exercise of his functions relating to early years and later years provision in his annual report to the Secretary of State under section 3(a) of the Education Act 2005.
165.This section allows the Chief Inspector to require from a registered person information about their activities as an early years or later years provider. The information is limited to that which the Chief Inspector considers it is necessary to have for the purpose of his functions under Part 3.
166.This section requires the Chief Inspector to give HMRC (Her Majesty’s Revenue and Customs) and the relevant local authority information (to be prescribed in regulations) when he takes certain steps under Part 3, such as adding or removing a name from a register. The information which may be prescribed is, in the case of HMRC, information relevant to their functions relating to tax credits and, in the case of local authorities, information which would assist them in the running of the information service which they are required to establish under section 12 of the Act.
167.Section 84 allows the Chief Inspector to make prescribed information about registered persons available (to such persons and in such manner as he feels appropriate) for the purpose of (a) assisting parents in choosing a childcare provider or (b) protecting children from harm and neglect. Subsection (3) allows the Secretary of State to make regulations requiring the Chief Inspector to provide prescribed information about registered persons to prescribed people for either of those purposes. This could include, for example, passing information to the police or other child protection agencies for the purpose of protecting children from harm.
168.Section 85 makes it an offence for any person applying for registration (whether compulsory or voluntary) to knowingly make a false or misleading statement in their application.
169.Section 86 has the effect that where a person commits an offence proceedings may be brought up to six months after a prosecutor decides there is enough evidence. No proceedings may be brought in respect of an offence after three years have passed since the date of the alleged offence.
170.Section 87 applies where an offence under the Act is committed by a body corporate and makes provision for the liability of directors, managers or other officers of the company.
171.Section 88 makes provision for how childcare providers who are unincorporated associations are to be treated for the purposes of proceedings for offences relating to registration. Proceedings must be brought against the organisation using its name rather than the name of individual members. In this and other matters relating to the proceedings, including liability for payment of any fine, the unincorporated association is to be treated as if it were a body corporate. Subsection (5) ensures that where an individual officer or member of the governing body of the association has consented or connived in the committing of an offence, or where an offence is attributable to that person's neglect, they may be held liable as well as the association.
172.Section 89 allows the Secretary of State to prescribe in regulations the amounts of fees to be paid to the Chief Inspector and the timing of payment. Regulations may also make provision allowing fees payable to be waived or varied in accordance with the regulations.
173.For the purpose of making decisions about registration, it may be necessary for the Chief Inspector to obtain information from third parties which relates to an applicant for registration or a registered person (or to other persons who may be caring for the children concerned). Section 90 enables the Secretary of State to make regulations allowing the Chief Inspector to refuse or to cancel registration if consent to the disclosure of information by third parties is withheld or consent is withdrawn. This section replaces (for England) the provision made by section 79B(5A) of the Children Act 1989.
174.Section 91 sets out the requirements relating to co-operation by the local authority with the Chief Inspector and replaces (for England) similar provision made by paragraph 8 of Schedule 9A to the Children Act 1989.
175.Section 92 allows for the Chief Inspector (where he considers it appropriate and is required to issue more than one certificate of registration to a person) to combine any two or more certificates in a single document.
176.Section 93 provides for the methods by which the Chief Inspector may give certain notices to registered providers or applicants, for instance in respect of decisions to refuse registration, impose conditions or cancel registration. It also applies to certain notices which may be given by applicants and registered persons – for example, when giving notice that they wish to be registered on another register or part of a register, wish to be removed from a register or do not intend to object to the taking of a step by the Chief Inspector under section 73.
177.A notice to which section 93 applies may be given by delivering it to the Chief Inspector, sending it by post, or by email. The Chief Inspector may only send notices by email where the applicant or registered person has indicated to the Chief Inspector his willingness to receive information electronically and he has provided an address (which must be used). Email notices to the Chief Inspector must be transmitted in accordance with the Chief Inspector’s requirements.
178.Section 94 enables the Secretary of State to make an order amending Part 3 to allow applications for registration by persons other than childminders to be made in respect of more than one set of premises. The order may make changes to Part 3 that may be necessary as a consequence of this amendment.
179.Section 95 amends section 4 of the Education Act 1996 to provide that institutions that only provide early years provision and are not maintained nursery schools are not be regarded as schools.
180.Section 96 defines certain terms used in Part 3. Early years provision means the provision of childcare for a young child (a young child being a child aged from birth up to the 1st September following his fifth birthday). Later years provision means the provision of childcare for a child older than this. An early years provider is someone who provides early years provision, and later years provider someone who provides later years provision. An early or later years childminder is someone who provides early or later years provision on domestic premises for reward with no more than two other people.
181.The effect of section 97 is that where an early years or later years provider employs an individual to care for a child the employee cannot be registered (because the employee is not regarded as providing early years or later years provision for the purposes of Part 3). The employer (as the early years or later years provider) will be under an obligation to ensure that the early years or later years provision meets any legal requirements (for example, an early years provider registered under Chapter 2 of Part 3 will be required to secure that the early years provision meets the learning and development requirements). The employer will also be under an obligation to ensure that they do not employ anyone who is disqualified in connection with early or later years provision (see section 76(3)).
182.Section 98 defines terms used in Part 3 (regulation and provision of childcare) such as the use of ‘the Chief Inspector’ to mean Her Majesty’s Chief Inspector of Schools in England.