The Education Tribunal for Wales Regulations 2021

Children who lack capacity and case friends E+W

Applications under section 70(3) of the 2018 Act for a declaration under section 71(2) of the 2018 Act relating to child’s capacity to understand E+W

59.—(1) A child or child’s parent seeking a declaration from the tribunal pursuant to section 71(2) of the 2018 Act must submit an application in writing to the tribunal.

(2) The application must state—

(a) the name and address of the person seeking the declaration and, if available, the person’s telephone number and e-mail address;

(b) the name and date of birth of the child;

(c) the name and address of the child’s school and the relevant local authority;

(d) the applicant’s relationship to the child;

(e) the names and addresses of all persons—

(i) who have parental responsibility for a child, or

(ii) who share parental responsibility for a child, or

(iii) have care of the child,

or reasons why the names and addresses of such persons are not provided;

(f) a copy of the governing body’s and local authority’s decisions under section 84 of the 2018 Act relating to the child’s capacity;

(g) the reason or reasons for making the application;

(h) supporting evidence of the child’s capacity, or lack of capacity, within the meaning of section 85(1) of the 2018 Act;

(i) the declaration sought.

(3) Where it appears to the President or tribunal panel that further information is required before a declaration can be made, the President or tribunal panel may direct the applicant to provide such information.

(4) The Secretary of the Tribunal must serve notice of any declaration made under section 71(2) of the 2018 Act on the applicant, the governing body, the local authority and, where appropriate, those listed in paragraph (2)(e).

(5) The Secretary of the Tribunal must record the decision and any declaration in the Register.

Commencement Information

I1 Reg. 59 in force at 1.9.2021, see reg. 1

Who may be a case friend E+W

60.  A person may only act as a case friend if the person is not barred from regulated activity relating to children under section 3(2)(a) of the Safeguarding Vulnerable Groups Act 2006(1).

Commencement Information

I2 Reg. 60 in force at 1.9.2021, see reg. 1

How a person becomes a case friend E+W

61.—(1) A person who wishes to act as a case friend must submit an application in writing to the Tribunal.

(2) The application must state—

(a) the name and address of the person who wishes to act as the child’s case friend and, if available, the person’s telephone number and e-mail address;

(b) the name and date of birth of the child;

(c) the name and address of the child’s school and the relevant local authority;

(d) the person’s relationship or connection to the child;

(e) a declaration of suitability confirming that the person satisfies the conditions and requirements specified in these Regulations and section 85(6) of the 2018 Act;

(f) supporting evidence of the child’s lack of capacity within the meaning of section 85(1) of the 2018 Act.

(3) The application must include—

(a) the views of the child’s parent in relation to the person’s wish to act as the case friend, or

(b) an explanation of why the person has not established the parent’s views.

(4) Subject to paragraph (5), the declaration of suitability must be accompanied by an enhanced disclosure certificate issued by the Disclosure and Barring Service.

(5) The requirement in paragraph (4) does not apply where the person who wishes to act as the case friend is the child’s parent, step-parent, brother, step-brother, half-brother, sister, step-sister, half-sister, grand-parent, uncle, aunt, nephew or niece.

(6) The Secretary of the Tribunal must—

(a) record on the Tribunal’s register the enhanced disclosure certificate’s number and the start and expiry date, and

(b) use the recorded delivery service to return the enhanced disclosure certificate to the person.

(7) The application must be accompanied by evidence to support the person’s suitability to act as a case friend.

(8) The application must be signed by the person who wishes to act as the child’s case friend.

(9) The person who wishes to act as the child’s case friend must serve a copy of the application on—

(a) the parties to the proceedings,

(b) the child’s parent, and

(c) the child’s school and local authority.

Commencement Information

I3 Reg. 61 in force at 1.9.2021, see reg. 1

Steps in proceedings E+W

62.—(1) If during the appeal or the claim the President or the tribunal panel make a finding that a child appellant or claimant lacks capacity to understand within the meaning of section 85(1) of the 2018 Act and requires a case friend to conduct the proceedings on its behalf, no party may take any further step in the appeal or the claim without the President’s or the tribunal panel’s permission until and unless a person who wishes to act as the appellant’s or the claimant’s case friend has submitted an application to the Tribunal in accordance with regulation 61.

(2) Where the President or tribunal panel has ordered that a person is a case friend, the Secretary of the Tribunal must send a copy of the order to the case friend, the child’s parent and to the child’s school and local authority.

(3) Where the President or tribunal panel has ordered that a person is a case friend, the Secretary of the Tribunal must send all documents and notices concerning the appeal or claim to the case friend instead of the appellant or the claimant.

(4) If paragraph (3) applies, references in these Regulations (however expressed) to sending documents to, or giving notice to, the appellant or the claimant must be construed as references to sending documents to, or giving notice to, the case friend.

Commencement Information

I4 Reg. 62 in force at 1.9.2021, see reg. 1

Removing a case friend E+W

63.—(1) The President or the tribunal panel may remove a case friend by order in accordance with section 85(2)(b) of the 2018 Act on the President’s or the tribunal panel’s own initiative or on application, if satisfied that—

(a) the person does not meet one or more of the conditions set out in section 85(6) of the 2018 Act, or

(b) other good reason exists.

(2) An application for an order to remove a case friend must be supported by evidence.

(3) Where an order is made under paragraph (1), the President or the tribunal panel may stay the appeal or the claim until the appellant or the claimant has appointed a new case friend.

(4) The Secretary of the Tribunal must serve notice on the parties of any order made under paragraph (1) stating—

(a) that the person no longer acts as the appellant’s or the claimant’s case friend, and

(b) where a person has been substituted as a case friend, the name and address of the new case friend for service of notices and documents.

(5) The Secretary of the Tribunal must serve a copy of a direction made under paragraph (1) on—

(a) the person who has been removed as the case friend,

(b) the child’s parent, and

(c) the child’s school and local authority.

Commencement Information

I5 Reg. 63 in force at 1.9.2021, see reg. 1

(1)

Under section 3(2)(a) of the Safeguarding Vulnerable Groups Act 2006 (c. 47), a person is barred from regulated activity relating to children if the person’s name is included in the list in Part 1 of Schedule 3 to that Act (“the children’s barred list”).