PART 2

ADDITIONAL LEARNING NEEDS
CHAPTER 5

GENERAL

Capacity

Case friends for children who lack capacity
85
1
This section applies to a child who lacks the capacity to understand—
a
information or documents that must be given to a child under this Part, or
b
what it means to exercise the rights conferred on a child by this Part.
2
The Education Tribunal for Wales may by order—
a
appoint a person to be a case friend for a child to whom this section applies, or
b
remove the person from being a case friend for the child,
on the application of any person or on its own initiative, subject to provision in regulations under subsection (8).
3
A case friend appointed for a child under this section may—
a
represent and support the child, and
b
take decisions and act on behalf of the child,
in respect of matters arising under or by virtue of this Part, subject to provision in regulations under subsection (8).
4
Where a person is appointed to be a case friend by order of the Tribunal under this section, the rights of a child under the provisions in subsection (5) are to be exercised by the case friend on behalf of the child and the provisions are to be interpreted accordingly.
5
The provisions are—
a
sections 11(4), 13(3), 18(3), 22(2), 23(10), 24(9), 27(4), 28(4), 28(7), 31(7), 31(8), 31(9), 32(3), 40(4) and 42(6) (duties to notify or inform);
b
sections 22(1), 23(11), 24(10) and 40(5) (duties to give a copy of a plan or a revised plan);
c
section 20(3) (duty to inform and give an opportunity to discuss);
d
sections 23(8) and 24 (7) (duty to review a plan following a request);
e
sections 26(1), 27(1) and 32(1)(b) (duties to reconsider following a request);
f
section 28(1) (duty to decide following a request);
g
section 70(2) (right of appeal);
h
section 72 (right of appeal: detained persons).
6
A case friend appointed under this section must—
a
act fairly and competently,
b
not have any interest adverse to that of the child,
c
ensure that all steps and decisions taken by the case friend are for the benefit of the child, and
d
take account of the child’s views, so far as possible.
7
In deciding whether to appoint a person to be a case friend, or to remove a person from being a case friend, the Tribunal must have regard, in particular, to whether the person is likely to comply (in the case of appointment) or has complied (in the case of removal) with the duty in subsection (6).
8
Regulations may make further provision about case friends, including (among other things) provision—
a
conferring functions on the Education Tribunal for Wales;
b
conferring functions on case friends;
c
for procedures in relation to case friends;
d
specifying the circumstances in which a person may or may not act as a case friend;
e
specifying the circumstances in which a child must have a case friend;
f
specifying requirements in respect of the conduct of case friends;
g
applying any enactment with or without modifications for the purpose of enabling a case friend to make decisions or act on behalf of a child in respect of matters arising under or by virtue of this Part.