The Disqualification from Caring for Children (Wales) Regulations 2004
Citation, commencement and application1.
(1)
These Regulations may be cited as the Disqualification from Caring for Children (Wales) Regulations 2004 and shall come into force on 20 October 2004.
(2)
These Regulations apply in relation to Wales.
Revocation2.
Interpretation3.
(1)
In these Regulations —
“the Act” (“y Ddeddf”) means the Children Act 1989;
“appropriate office” (“swyddfa briodol”) means —
(a)
if an office has been specified under paragraph (2) in relation to any person, that office;
(b)
in any other case, any office of the National Assembly;
“disqualification order”, “qualifying sentence”, “relevant order” and “senior court” (“gorchymyn datgymhwyso”, “dedfryd gymhwysol”, “gorchymyn perthnasol”, “prif lys”) have the same meanings as in section 30 of the 2000 Act;
“disqualified” (“wedi'i ddatgymhwyso/ wedi'u datgymhwyso”) means disqualified for registration under Part XA of the Act for child minding or providing day care;
“the National Assembly” (“y Cynulliad Cenedlaethol”) means the National Assembly for Wales;
“offence against a child” (“tramgwydd yn erbyn plentyn”) in relation to offences committed in England and Wales has the meaning given in section 26 of the 2000 Act;
(2)
The National Assembly may specify an office controlled by it as the appropriate office in relation to any registered person or applicant for registration under Part XA of the Act.
Disqualification from fostering a child privately4.
(1)
For the purposes of section 68 of the Act (persons disqualified from being private foster parents) a person is disqualified from fostering a child privately if —
(a)
that person has been convicted of any offence mentioned in Part I of the Schedule to these Regulations; or
(b)
that person is a person mentioned in Parts II or III of the Schedule to these Regulations.
(2)
A person who has successfully appealed against a conviction or determination is not disqualified under paragraph (1) in respect of that conviction or determination.
Disqualification for registration for child minding and providing day care5.
(1)
For the purposes of paragraph 4 of Schedule 9A to the Act (disqualification for registration) a person is, subject to regulation 6, disqualified if —
(a)
that person has been convicted of any offence mentioned in Part I of the Schedule to these Regulations;
(b)
that person is a person mentioned in Parts II or III of the Schedule to these Regulations; or
(c)
that person has at any time been disqualified from fostering a child privately.
(2)
Subject to regulation 6, a person who lives —
(a)
in the same household as a person who is disqualified under paragraph (1); or
(b)
in a household in which any such person is employed,
is disqualified.
(3)
A person who has successfully appealed against a conviction or determination is not disqualified under paragraph (1) in respect of that conviction or determination.
Waivers6.
(1)
Where a person would be disqualified by virtue of regulation 5 but that person has disclosed to the National Assembly the facts that would give rise to the disqualification and the National Assembly has given written consent and has not withdrawn that consent, then that person is not, by reason of the facts so disclosed, to be regarded as disqualified for the purpose of these Regulations.
(2)
A person is not disqualified under regulation 5 if, prior to 1 April 2002, the person —
(a)
disclosed the facts to an appropriate local authority under paragraph 2 of Schedule 9 to the Act which would disqualify the person under regulation 5; and
(b)
obtained the written consent of that local authority.
Duty of Disclosure7.
(1)
A person who has been registered as a childminder or day care provider or employed in connection with the provision of day care pursuant to section 79D of the Act has a continuing duty throughout the period of registration to provide the National Assembly with the information listed in subsection (2) in relation to:
(a)
any order made against the registered person;
(b)
any order made against a person who lives or works in the same household of which the registered person is aware or could reasonably be expected to be aware;
(c)
any offence of which the registered person has been convicted; and
(d)
any offence of which a person who lives or works in the same household has been convicted of which the registered person is aware or could reasonably be expected to be aware
which is a ground for disqualification under these Regulations.
(2)
The information which must be provided to the appropriate office of the National Assembly for the purposes of paragraph (1) is —
(a)
details of the precise nature of the order or conviction;
(b)
when the order was made and by which body or Court;
(c)
what sentence was imposed;
(d)
where available, a certified copy of the relevant Order or Court Order evidencing the conviction or other order.
(3)
The information referred to in paragraph (2) must be provided to the National Assembly as soon as reasonably practicable.
(4)
A person who without reasonable excuse fails to comply with the requirements of this regulation is guilty of an offence.
(5)
A person found guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Prescribed Determinations8.
For the purposes of section 79M(1)(c) of the Act (appeals to the Tribunal), a determination in relation to the disqualification of a person for registration for child minding or providing day care under Schedule 9A of the Act is a prescribed determination.
SCHEDULE
PART ISPECIFIED OFFENCES
Offences Against Children
1.
(a)
any offence against a child within the meaning of section 26(1) of the 2000 Act; or
(b)
any offence other than an offence referred to in (a) involving bodily injury to, or death of a child; save that
a person is not disqualified under this paragraph in respect of any offence if that person has successfully appealed against the disqualification order (pursuant to section 31 of the 2000 Act) or if the Tribunal has determined (pursuant to section 32 of that Act) that the person in question is no longer to be subject to the disqualification order (unless the High Court has restored the disqualification order pursuant to section 34 of that Act following such a determination).
Other Offences
2.
Any offence —
(a)
committed against a person aged 18 or over and mentioned in paragraph 2 of Schedule 4 to the 2000 Act in respect of which a qualifying sentence has been imposed by a senior court; or
(b)
with which a person has been charged, against a person aged 18 or over and mentioned in paragraph 2 of Schedule 4 to the 2000 Act, in respect of which a relevant order has been imposed by a senior court; save that
a person is not disqualified under this paragraph in respect of any offence if that person has successfully appealed against the disqualification order (pursuant to section 31 of the 2000 Act) or if the Tribunal has determined (pursuant to section 32 of that Act) that the person is no longer to be subject to the disqualification order, (unless the High Court has restored the disqualification order pursuant to section 34 of that Act following such a determination), and further a person ceases to be disqualified under this paragraph where the rehabilitation period applicable to the conviction under the Rehabilitation of Offenders Act 1974 has expired.
3.
An offence under any of the following —
(a)
(b)
section 49 or 50(9) of the Act (offences relating to the abduction of a child in care);
(c)
(d)
sections 78C, 79D, 79E and 79F of the Act (offences relating to child minding and day care); or
(e)
4.
An offence in relation to a children’s home under or by virtue of any of the following provisions of the Care Standards Act 2000 —
(a)
section 11(1) (failure to register);
(b)
section 24 (failure to comply with conditions);
(c)
section 25 (contravention of regulations);
(d)
section 26 (false descriptions of establishments and agencies); or
(e)
section 27 (false statements in applications).
Offences in Scotland
5.
An offence of rape.
6.
7.
The common law offence of plagium (theft of a child below the age of puberty).
8.
9.
10.
An offence under any of the following —
(a)
(b)
(c)
sections 78, 79D, 79E and 79F of the Act (offences relating to child minding and day care); or
(d)
11.
An offence under or by virtue of section 60(3), 61(3) or 62(6) of the Social Work (Scotland) Act 1968 (offences relating to residential and other establishments).
12.
(a)
section 21 (offences relating to registration);
(b)
section 22 (false statements in applications); or
(c)
section 29(10) (offences in regulations).
Offences in Northern Ireland
13.
14.
An offence under any of the following —
(a)
(b)
(c)
article 117 of the Children Northern Ireland) Order 1995, or section 9(1) of the Children and Young Persons Act (Northern Ireland) 1968 (offences relating to private fostering); or
(d)
article 79(3), 81(4), 95(3) or 97(4) of the Children (Northern Ireland) Order 1995, or section 127(5) or 129(3) of the Children and Young Persons Act (Northern Ireland) 1968 (offences relating to voluntary homes and children’s homes).
Offences in the Channel Islands
15.
An offence contrary to —
(a)
(b)
16.
An offence contrary to —
(a)
(b)
(c)
(d)
(e)
(f)
Offences in the Isle of Man
17.
Other Offences
18.
19.
An offence by virtue of —
(a)
(b)
20.
An offence contrary to section 32(3) of the Children and Young Persons Act 1969 (detention of absentees).
PART IIRELEVANT PERSONS
21.
The person is a parent of a child in respect of whom an order has been made at any time under —
(a)
section 31(1)(a) of the Act (care order);
(b)
section 31(1)(b) of the Act (supervision order);
(c)
section 44(1) of the Act (emergency protection order);
(d)
article 50(1)(a) of the Children (Northern Ireland) Order 1995 (care order); or
(e)
section 31 of the Children and Young Persons Act 2001 (an Act of Tynwald).
22.
One of the following orders has been made at any time with respect to a child so as to remove the child from the care of, or prevent the child living with the person —
(a)
an order under section 31(1)(a) of the Act;
(b)
(c)
(d)
an order under article 50(1)(a) of the Children (Northern Ireland) Order 1995;
(e)
(f)
a child protection order under section 57 of the Children (Scotland) Act 1995;
(g)
an exclusion order under section 76 of the Children (Scotland) Act 1995; or
(h)
a supervision order which imposes a residence requirement under paragraph 5 of Schedule 9 to the Children and Young Persons Act 2001 (an Act of Tynwald) (requirement to live in accommodation provided by the Department of Health and Social Security).
23.
A supervision requirement has been imposed at any time with respect to a child so as to remove that child from the person’s care, under —
(a)
(b)
section 70 of the Children (Scotland) Act 1995.
24.
The person’s rights and powers with respect to a child have at any time been vested in a local authority in Scotland —
(a)
(b)
pursuant to a parental responsibilities order under section 86 of the Children (Scotland) Act 1995.
25.
The person —
(a)
has been refused registration in respect of a children’s home under section 13 of the Care Standards Act 2000;
(b)
has had their registration in respect of a children’s home cancelled under section 14 or 20(1) of the Care Standards Act 2000; or
(c)
has been concerned in the management of, or had any financial interest in, a children’s home, in respect of which the registration of any person has been cancelled under section 14 or 20(1) of the Care Standards Act 2000.
26.
The person has at any time been refused registration in relation to a voluntary home or a children’s home, or who carried on, was otherwise concerned with the management of, or had any financial interest in, a voluntary home or a children’s home the registration of which was cancelled, under, as the case may be —
(a)
(b)
paragraph 1 or 4 of Schedule 6 to the Act;
(c)
(d)
article 80, 82, 96 or 98 of the Children (Northern Ireland) Order 1995.
27.
The person has —
(a)
had a prohibition imposed at any time under —
(i)
(ii)
Article 110 of the Children (Northern Ireland) Order 1995 (power to prohibit private fostering);
(iii)
(iv)
section 59 of the Children and Young Persons Act 2001 (an Act of Tynwald) (power to prohibit or impose restrictions upon private fostering); or
(b)
been given a notice in writing by a Health and Social Services Board under section 1(3) of the Children and Young Persons Act (Northern Ireland) 1968 (withholding consent to the care and maintenance of the child being undertaken by a person).
28.
The person has at any time been refused registration in respect of the provision of nurseries or day care, or for child minding, been disqualified from registration or had any such registration cancelled under, as the case may be —
(a)
(b)
(c)
Part XA of the Act;
(d)
(Part XI of the Children (Northern Ireland) Order 1995;
(e)
section 11(5) or 15 of the Children and Young Persons Act (Northern Ireland) 1968;
(f)
(g)
section 65 or section 66 or section 69 of, or Schedule 7 to, the Children and Young Persons Act 2001 (an Act of Tynwald).
29.
The person has at any time been refused registration or had such registration cancelled under section 62 of the Social Work (Scotland) Act 1968 (registration of residential and other establishments).
30.
The person has at any time been refused registration as a provider of a child care agency under section 7 of the Regulation of Care (Scotland) Act 2001 or has had such registration cancelled under section 12 of that Act.
31.
The person has at any time been included on a list of persons unsuitable to work with children under section 3 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 or has been disqualified from working with children under Part 2 of that Order.
PART IIIRELEVANT LISTS
Protection of Children Act List
32.
Education Reform Act list
33.
Education Act 1996 list
34.
These Regulations replace, with modifications, the Disqualification from Caring for Children (Wales) Regulations 2002. They make provision for the circumstances in which a person is disqualified from fostering a child privately (regulation 4). In addition they set out the categories of persons who are disqualified from registration in Wales as child minders or providers of day care. Persons disqualified under these Regulations must not provide day care or be concerned in the management of, or have any financial interest in, any provision of day care. Nor must they be employed in connection with the provision of day care. Regulation 6 provides for a waiver of the disqualification in certain circumstances so that where the consent of the National Assembly for Wales, or a local authority prior to 1 April 2002, has been given a person is not to be regarded as disqualified. Regulation 7 imposes an ongoing duty on registered child minders or providers of day care to inform the National Assembly of any subsequent conviction or order which would be a ground for disqualification.
A Regulatory Appraisal has been prepared in connection with these Regulations. A copy may be obtained from the Children and Families Directorate, the National Assembly for Wales, Cathays Park, Cardiff, CF10 3NQ (Tel: 02920 825736).