The Child Minding and Day Care (Disqualification) (No. 2) (Wales) Regulations 2022
Title and commencement1.
(1)
The title of these Regulations is the Child Minding and Day Care (Disqualification) (No. 2) (Wales) Regulations 2022.
(2)
Interpretation2.
(1)
In these Regulations—
“disqualified” (“wedi ei anghymhwyso”) means disqualified from registration as a child minder or provider of day care under Part 2 of the Measure;
“domestic premises” (“mangre ddomestig”) has the meaning given by section 19(6) of the Measure;
“the Measure” (“y Mesur”) means the Children and Families (Wales) Measure 2010;
“relevant order” (“gorchymyn perthnasol”) means—
(a)
an order made by the Crown Court, the Court of Appeal, the Court Martial or the Court Martial Appeal Court that the individual in question be admitted to hospital, or
(b)
(2)
In these Regulations, a person (“P”) has been “found to have committed” an offence if P has been—
(a)
convicted of an offence;
(b)
found not guilty of an offence by reason of insanity;
(c)
found to be under a disability and to have done the act charged against them in respect of such an offence;
(d)
on or after 6 April 2007, given a caution in respect of an offence by a police officer;
(e)
(3)
In these Regulations, P has been found to have committed an offence that is “related to” an offence if P has been found to have committed an offence of—
(a)
attempting, conspiring or incitement to commit that offence, or
(b)
aiding, abetting, counselling or procuring the commission of that offence.
Care of children and offences against children or adults3.
(1)
Subject to paragraphs (9), (10) and (11) and regulation 9, a person (“P”) is disqualified if any of paragraphs (2) to (8) apply.
(2)
Any of the orders or other determinations specified in Schedule 1 has been made—
(a)
with respect to P,
(b)
which prevents P from being registered in relation to any facility in which children are looked after or from being involved in the management of or otherwise concerned with the provision of any such facility, or
(c)
with respect to a child who has been in P’s care.
(3)
(4)
(5)
P—
(a)
has been found to have committed any offence specified in paragraph 1 of Schedule 2 or an offence that is related to such an offence, or
(b)
falls within paragraph 2 of that Schedule,
despite the fact that the statutory offences in that Schedule have been repealed.
(6)
P has been found to have committed any offence other than an offence referred to in paragraph (4) or (5) involving bodily injury to, or death of, a child.
(7)
P has been found to have committed any offence specified in Schedule 3 or an offence that is related to such an offence.
(8)
P has been—
(a)
(b)
charged with any offence, committed against a person aged 18 or over, mentioned in paragraph 2 of Schedule 4 to the 2000 Act or an offence that is related to such an offence in respect of which a relevant order has been imposed by a senior court,
despite the fact that the statutory offences in that Schedule have been repealed.
(9)
P is not disqualified under paragraphs (1) to (8) in respect of any order, determination or offence if—
(a)
P has successfully appealed against the order, determination or conviction,
(b)
a caution in respect of that offence has been withdrawn or set aside,
(c)
a direction based wholly or in part on the offence has been revoked, or
(10)
P is not disqualified by virtue of paragraph (2)—
(a)
if an order is made under the 1989 Act under which P was placed in the care or under the supervision of a designated local authority or similar body, unless an order has also been made as a result of P’s care of their own child, or
(b)
where P is a foster carer or adoptive parent of a child, and that child is or was made the subject of a care or supervision order under the 1989 Act, unless the order is made as a result of P’s care of that child.
(11)
P is not disqualified from registration by virtue of paragraph (2) in respect of any refusal or cancellation of registration under the provisions set out in paragraph 23(c) of Schedule 1 if—
(a)
the refusal or cancellation is in respect of registration with a child-minder agency, or
(b)
Overseas offences4.
(1)
Subject to regulation 9, a person (“P”) is disqualified if P has been found to have done an act which—
(a)
constituted an offence under the law in force in a country outside the United Kingdom, and
(b)
would constitute an offence requiring disqualification from registration under these Regulations if it had been done in any part of the United Kingdom.
(2)
In paragraph (1), P has been “found to have done an act which constituted an offence” if, under the law in force in a country outside the United Kingdom—
(a)
P has been convicted of an offence (whether or not P has been punished for it),
(b)
P has been cautioned in respect of an offence,
(c)
a court exercising jurisdiction under that law has made in respect of an offence a finding equivalent to a finding that P is not guilty by reason of insanity, or
(d)
such a court has made in respect of an offence a finding equivalent to a finding that P is under a disability and did the act charged against P.
(3)
P is not disqualified under paragraph (1) in respect of any finding if, under the law in force in the country concerned, such finding has been reversed.
(4)
An act punishable under the law in force in a country outside the United Kingdom constitutes an offence under that law for the purposes of this regulation however it is described in that law.
Protection of Children Act list5.
Direction in relation to the employment of teachers etc.6.
(1)
Subject to regulation 9, a person (“P”) is disqualified if any of the following provisions of this regulation apply to P.
(2)
P is subject to a direction.
(3)
Persons barred from regulated activity relating to children7.
A person who is barred from regulated activity relating to children within the meaning of section 3(2) of the Safeguarding Vulnerable Groups Act 2006 is disqualified.
Persons living or working on premises where a disqualified person lives8.
Subject to regulation 9, a person (“P”) is disqualified if P—
(a)
(i)
lives in the same household as another person who is disqualified from registration, or
(ii)
lives in a household in which any such person is employed, and
(b)
acts or intends to act as a childminder on domestic premises used by the household of which P is a member.
Waivers9.
(1)
Subject to paragraph (2), where a person (“P”) would be disqualified by virtue of regulation 3, 4, 6(1) and (3), or 8 but has disclosed to the Welsh Ministers the facts which would otherwise cause P to be disqualified, and the Welsh Ministers have given written consent and have not withdrawn that consent, then the person is not, by reason of the facts so disclosed, to be regarded as disqualified for the purpose of these Regulations.
(2)
(3)
A person is not disqualified if, prior to 1 April 2002, the person—
(a)
(b)
obtained the written consent of that local authority.
Appeals10.
Any determination made by the Welsh Ministers as to whether to give consent to waive disqualification under regulation 9(1) is a prescribed determination for the purposes of section 37(2)(a) of the Measure (appeals).
Duty of disclosure11.
(1)
A person who is registered under Part 2 of the Measure (“registered person”) must provide the following information to the Welsh Ministers—
(a)
details of any order, determination, conviction or other ground for disqualification from registration made or applying in relation to a person listed in paragraph (2) which results in that person being disqualified from registration under these Regulations;
(b)
the date when the order, determination or conviction was made or when any other ground for disqualification from registration arose;
(c)
the body or court by which the order, determination or conviction was made and the sentence, if any, imposed;
(d)
in relation to an order or conviction, a copy of the relevant order or court order certified by the issuing body or court.
(2)
The persons in respect of whom the information referred to in paragraph (1) must be provided are—
(a)
the registered person, and
(b)
any person who lives in the same household as the registered person or who is employed in that household.
(3)
The information referred to in paragraph (1) must be provided to the Welsh Ministers as soon as reasonably practicable, but in any event within 14 days of the time when the registered person became aware of that information or ought reasonably to have become aware of it if the registered person had made reasonable enquiries.
(4)
The requirement in paragraph (2)(b) only applies in respect of household members or those employed in the household of a registered childminder.
(5)
Any allegation that a registered person has failed to meet the requirements of this regulation may be taken into account by the Welsh Ministers in the exercise of their functions under Part 2 of the Measure (including cancellation of registration in accordance with section 31(1) of the Measure).
(6)
A person who without reasonable excuse fails to comply with the requirements of this regulation is guilty of an offence.
(7)
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.
Revocation and consequential amendment12.
(1)
(2)
(3)
“(Disqualification)” insert “(No. 2)”
.
SCHEDULE 1ORDERS ETC. RELATING TO THE CARE OF CHILDREN
Care, supervision and permanence orders
1.
An order under section 31(1)(a) of the 1989 Act (care order).
2.
An order under section 31(1)(b) of the 1989 Act (supervision order).
3.
4.
An order under article 50(1)(b) of the Children (Northern Ireland) Order 1995 (supervision order).
5.
6.
7.
8.
An order under section 31(1)(b) of the Children and Young Persons Act 2001 (an Act of Tynwald) (supervision order).
9.
10.
Any order that would have been deemed to be a care order by virtue of paragraph 15 of Schedule 14 to the 1989 Act (transitional provisions for children in compulsory care) had it been in force immediately before the day on which Part 4 of the 1989 Act came into force.
11.
A parental responsibility order made under article 7 of the Children (Northern Ireland) Order 1995.
12.
13.
Orders imposing a residence or exclusion requirement
14.
15.
16.
An exclusion order under section 76 of the Children (Scotland) Act 1995.
17.
18.
An order made at any time imposing a supervision requirement with respect to a child so as to remove that child from P’s care, under—
(a)
(b)
19.
An order made at any time vesting P’s rights and powers with respect to a child in a local authority in Scotland—
(a)
(b)
20.
A compulsory supervision order, within the meaning of section 83 of the Children’s Hearings (Scotland) Act 2011, or an interim compulsory supervision order, within the meaning of section 86 of that Act, made at any time with respect to a child so as to remove that child from P’s care.
Determinations in relation to P’s suitability to provide care
21.
In relation to registration of a children’s home—
(a)
a refusal of P’s application for registration under section 13 of the Care Standards Act 2000,
(b)
cancellation of P’s registration under section 14, 20(1) or 20(A) of the Care Standards Act 2000,
(c)
cancellation of the registration of any person under section 14, 20(1) or 20(A) of the Care Standards Act 2000 in relation to a children’s home which P has been concerned in the management of, or has any financial interest in, or
(d)
22.
(a)
a refusal of P’s application for registration under section 7 of the 2016 Act,
(b)
a refusal under section 12 of the 2016 Act of P’s application to vary P’s registration (made in accordance with section 11(1)(a)(i) or (ii) of that Act),
(c)
a cancellation of P’s registration under section 15(1)(b) to (f) or 23(1) of the 2016 Act,
(d)
a cancellation of the registration of any person under section 15(1)(b) to (f) or 23(1) of the 2016 Act in relation to a care home service provided wholly or mainly to persons under the age of 18, or a secure accommodation service, in which P has been concerned in the management, or in which P had any financial interest, or
(e)
a refusal of P’s application for registration or cancellation of P’s registration under the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003.
23.
Refusal at any time of P’s application for registration in relation to a voluntary home or a children’s home, or cancellation of the registration of a voluntary home or children’s home which was carried on by P or which P was otherwise concerned with the management of, or had any financial interest in, under, as the case may be—
(a)
(b)
(c)
(d)
(e)
(f)
(g)
24.
A prohibition imposed at any time under—
(a)
(b)
article 110 of the Children (Northern Ireland) Order 1995 (power to prohibit private fostering),
(c)
(d)
section 59 of the Children and Young Persons Act 2001 (an Act of Tynwald) (power to prohibit or impose restrictions under private fostering).
25.
26.
Refusal at any time of registration in respect of the provision of nurseries, day care, child minding or other provision of childcare, disqualification from such registration or cancellation of any such registration under—
(a)
(b)
(c)
(d)
Part 11 of the Children (Northern Ireland) Order 1995,
(e)
(f)
(g)
(h)
(i)
Part III of the Child Protection (Guernsey) Law 1972, or
(j)
Part 2 of the Measure.
27.
28.
29.
30.
Refusal at any time of P’s application for registration as a provider of a child care agency under section 59 of the Public Services Reform (Scotland) Act 2010 or cancellation of any such registration under section 64 or 65 of that Act.
31.
Refusal at any time of P’s application for registration or cancellation of P’s registration under section 60 of the Public Services Reform (Scotland) Act 2010.
32.
SCHEDULE 2REPEALED STATUTORY OFFENCES
1.
(1)
(a)
section 1 (rape);
(b)
section 2 or 3 (procurement of woman by threats or false pretences);
(c)
section 4 (administering drugs to obtain or facilitate intercourse);
(d)
section 5 (intercourse with a girl under 13);
(e)
section 6 (intercourse with a girl between 13 and 16);
(f)
section 14 or 15 (indecent assault);
(g)
section 16 (assault with intent to commit buggery);
(h)
section 17 (abduction of woman by force or for the sake of her property);
(i)
section 19 or 20 (abduction of girl under 18 or 16);
(j)
section 24 (detention of woman in brothel or other premises);
(k)
section 25 or 26 (permitting girl under 13, or between 13 and 16, to use premises for intercourse);
(l)
section 28 (causing or encouraging prostitution of, intercourse with or indecent assault on, girl under 16).
(2)
(3)
(4)
(5)
(6)
(7)
(a)
section 21 (offences in relation to registration),
(b)
section 22 (false statements in applications), or
(c)
section 29(10) (offences under regulations).
(8)
2.
P falls within this paragraph if P has been found to have committed an offence under any of the following provisions committed against or involving a child—
(a)
(b)
section 9 of that Act (procurement of defective),
(c)
section 10 of that Act (incest by a man),
(d)
section 11 of that Act (incest by a woman),
(e)
section 12 of that Act (buggery) except if the other party to the act of gross indecency was aged 16 or over and consented to the act,
(f)
section 21 of that Act (abduction of defective from parent or guardian),
(g)
section 22 of that Act (causing prostitution of women),
(h)
section 23 of that Act (procuration of girl under 21),
(i)
section 27 of that Act (permitting defective to use premises for intercourse),
(j)
section 30 of that Act (man living on earnings of prostitution),
(k)
section 31 of that Act (woman exercising control over prostitute),
(l)
(m)
(n)
section 5 of that Act (living on earning of male prostitution),
(o)
(p)
an offence that is related to an offence specified in sub-paragraphs (a) to (o).
SCHEDULE 3SPECIFIED OFFENCES
Offences in England and Wales
1.
(1)
(2)
An offence under section 49 or 50(9) of the 1989 Act (offences relating to the abduction of a child in care).
(3)
(a)
section 4 (putting people in fear of violence), or
(b)
(4)
(a)
section 11 (membership),
(b)
section 12 (support),
(c)
section 13 (uniform),
(d)
section 15 (fund-raising),
(e)
(f)
section 56 (directing terrorist organisation),
(g)
(h)
section 59 (England and Wales), or
(i)
section 63 (terrorist finance: jurisdiction).
(5)
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).
(6)
(7)
An offence under any of the following provisions of the Sexual Offences Act 2003—
(a)
(b)
section 62 or 63 (committing an offence or trespassing with intent to commit a sexual offence),
(c)
section 64 or 65 (sex with an adult relative),
(d)
section 67A (voyeurism: additional offences),
(e)
(f)
section 70 (sexual penetration of a corpse).
(8)
(a)
section 1 (encouragement of terrorism),
(b)
section 2 (dissemination of terrorist publications),
(c)
section 5 (preparation of terrorist acts),
(d)
(e)
section 8 (attendance at a place used for terrorist training),
(f)
section 9 (making and possession of devices or materials), or
(g)
section 11 (terrorist threats relating to devices, materials or facilities).
(9)
(10)
(a)
section 20 (ill treatment or wilful neglect: care worker offence),
(b)
section 21 (ill treatment or wilful neglect: care provider offence), or
(c)
section 33 (disclosing private sexual photographs and film with intent to cause distress).
(11)
(a)
(b)
section 76 (controlling or coercive behaviour in an intimate or family relationship).
(12)
(a)
section 1 (slavery, servitude and forced or compulsory labour),
(b)
section 2 (human trafficking),
(c)
section 4 (committing offence with intent to commit offence under section 2), or
(d)
(13)
(14)
An offence in relation to a care home service, which is provided wholly or mainly to persons under the age of 18, or a secure accommodation service (each has the meaning given in Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (“the 2016 Act”)) under or by virtue of any of the following provisions of the 2016 Act—
(a)
section 5 (requirement to register),
(b)
section 43 (failure to comply with a condition),
(c)
section 44 (false descriptions),
(d)
section 45 (failure by service provider to comply with requirements in regulations), or
(e)
section 47 (false statements).
(15)
An offence under section 70 of the 1989 Act (offences relating to private fostering).
(16)
(17)
(a)
section 1 (offence of female genital mutilation),
(b)
section 2 (assisting a girl to mutilate her own genitalia),
(c)
section 3 (assisting a non-UK person to mutilate overseas a girl’s genitalia), or
(d)
Offences in Scotland
2.
(1)
(2)
(3)
The common law offence of plagium (theft of a child below the age of puberty).
(4)
(5)
(6)
An offence under any of the following—
(a)
(b)
(c)
section 15 of the Foster Children (Scotland) Act 1984 (offences relating to private fostering).
(7)
(8)
An offence in relation to a care home service, child minding or day care of children, under or by virtue of any of the following sections of the Public Services Reform (Scotland) Act 2010—
(a)
section 78 (regulations: care services),
(b)
section 80 (offences in relation to registration under Chapter 3), or
(c)
section 81 (false statements in application under Chapter 3).
(9)
An offence under section 122 of the Anti-social Behaviour, Crime and Policing Act 2014 (offence of forced marriage: Scotland).
Offences in Northern Ireland
3.
(1)
(2)
(3)
An offence under article 70, 73 or 74 of the Sexual Offences (Northern Ireland) Order 2008.
(4)
(5)
(6)
(7)
(8)
(9)
An offence under Part 3 of the Sexual Offences (Northern Ireland) Order 2008 (sexual offences against children).
(10)
An offence under any of the following—
(a)
article 68 or 69(9) of the Children (Northern Ireland) Order 1995 (offences relating to the abduction of a child in care),
(b)
(c)
(11)
(12)
Offences in Jersey
4.
An offence contrary to—
(a)
(b)
(c)
Offences in Guernsey
5.
An offence contrary to—
(a)
(b)
(c)
(d)
(e)
the Children and Young Persons (Guernsey) Law 1967;
(f)
Offences in the Isle of Man
6.
An offence specified in Schedule 8 to the Children and Young Persons Act 2001 (an Act of Tynwald).
Other Offences
7.
(1)
(2)
An offence by virtue of—
(a)
(b)
(3)
An offence contrary to section 32(3) of the Children and Young Persons Act 1969 (detention of absentees).
(4)
These Regulations replace the Child Minding and Day Care (Disqualification) (Wales) Regulations 2022 (S.I. 2022/1066) (W. 224) (“the 2022 Regulations”). These Regulations set out the categories of persons who are disqualified from registration in Wales as child minders or providers of day care under Part 2 of the Children and Families (Wales) Measure 2010 (nawm 1) (“the Measure”).
Persons disqualified under these Regulations must not act as child minders in Wales, provide day care or be concerned in the management of any provision of day care. Nor must they be employed in connection with the provision of child minding or day care.
Regulation 3 together with Schedule 1 to these Regulations sets out orders and determinations for the care and supervision of children in connection with which a person is disqualified from registration. Regulation 3, together with Schedules 2 and 3, also sets out categories of offences against or involving children or adults in respect of which a person is disqualified from registration. Regulation 3(10) clarifies that disqualification does not apply to persons who have been the subject of care or supervision orders themselves or to foster carers or adoptive parents, with whom a child who is or was subject of a care or supervision order, lives, unless the order was made as a result of that applicant’s care of the child.
Regulation 4 sets out the offences committed overseas which are comparable to the offences set out in these Regulations.
Regulation 5 provides that persons included on the list kept under section 1 of the Protection of Children Act 1999 (c. 14) are disqualified from registration.
Regulation 6(1) and (2) provides that persons in respect of whom a direction has been made under section 142 of the Education Act 2002 (c. 32) (known as List 99) are disqualified from registration.
Regulation 7 sets out that persons barred from regulated activity relating to children under section 3(2) of the Safeguarding Vulnerable Groups Act 2006 (c. 47) are disqualified from registration.
Regulation 8 provides that a person is disqualified from registration as a childminder if that person lives with another person who is disqualified under these Regulations, or lives in a household in which such a person is employed and acts or intends to act as a childminder on domestic premises which is also their home.
Regulation 9 provides for a waiver of the disqualification in certain circumstances. Where the consent of the Welsh Ministers, or a local authority prior to 1 April 2002, has been given a person is not to be regarded as disqualified.
Regulation 9(2) sets out circumstances where the waiver process does not apply. This is where an individual has committed an offence against a child, where the offence itself has since been repealed and where the sentencing court ordered that the individual is disqualified from working with children.
Regulation 10 sets out a right of appeal to the First-tier Tribunal in relation to any determination made by the Welsh Ministers as to whether to give consent to waive disqualification under regulation 9.
Regulation 11 provides that a person registered under Part 2 of the Measure has a duty to disclose information to the Welsh Ministers about the details of any order, determination, conviction or other ground for disqualification from registration under these Regulations. That obligation applies to information relating to the registered person (and to any person living in the same household as the registered person or employed in that household where the registered person is a child minder). Failure to comply with this duty is a criminal offence.
Regulation 12 revokes the 2022 Regulations and provides for a consequential amendment.
The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result, a regulatory impact assessment has been prepared as to the likely costs and benefits of complying with these Regulations. A copy can be obtained from Welsh Government, Cathays Park, Cardiff, CF10 3NQ and is published on www.gov.wales.