Clause 16: Amendments of Children Act 2004

61.     Clause 16 makes two amendments to the Children Act 2004.

62.     The first deals with accountability in relation to functions under Part 1 of the Bill. It amends section 18 of the 2004 Act, which provides for the appointment by English local authorities of a director of children's services for the purpose of functions specified in that section. The amendment adds functions under Part 1 of the Bill to the list of specified functions and thereby brings them within the responsibility of the director of children's services. The amendment also brings functions under Part 1 of the Bill within the remit of the lead member for children's services designated by the local authority under section 19 of the 2004 Act.

63.     The second amendment means that functions of English local authorities under Part 1 of the Bill are part of children's services for the purposes of sections 20 to 22 of the 2004 Act. This brings them within the remit of services which Ofsted may inspect by making them subject to a joint area review under section 20 of the 2004 Act.

Clause 17: Charges for early years provision at maintained school

64.     Clause 17 amends section 451 of the Education Act 1996 which prohibits charges for the provision of education for registered pupils at maintained schools. The changes allow for regulations to prescribe circumstances where the prohibition on charging for education does not apply in respect of early years provision. The regulations may not lift the prohibition in respect of children of compulsory school age or in respect of provision that is secured under clause 7 (which deals with the duty to secure free early years provision).

Clauses 18 to 21: Meaning of childcare and other terms

65.     Clause 18 defines childcare as any form of care for a child including education and any supervised activity but excluding education (or any other supervised activity) provided in school hours for a registered pupil at a school who is not a young child. The definition also excludes health care, care provided by certain individuals (for example, a parent or a relative of a child), care provided in a hospital, care home or family centre and care provided for children detained in young offender institutions or secure training centres.

66.     Clauses 19 and 20 define young child and early years provision. Early years provision is the provision of childcare for a young child and a child is regarded as a young child until the 1st September following the date on which he attains the age of 5.

PART 2 - GENERAL FUNCTIONS OF LOCAL AUTHORITY: WALES

Clause 22: Duty to secure sufficient childcare for working parents

67.     Clause 22 places a duty on local authorities in Wales to secure, as far as is reasonably practicable, sufficient childcare to meet the requirements of parents in their area who require childcare in order to work or to undertake training or education to prepare for work. This applies to childcare for non-disabled children up to the 1st September after their 14th birthday and for disabled children up to the 1st September after their 16th birthday.

68.      The duty applies "so far as reasonably practicable". This recognises that it may not be practicable for a local authority to secure childcare to meet the requirements of every parent in their area. In determining what is reasonably practicable, local authorities will need to take into account a number of factors, including the resources available to them. In discharging the duty, local authorities must have regard to guidance issued by the National Assembly for Wales.

69.     Clause 22 specifies that, in determining whether the provision of childcare is sufficient, local authorities must have regard to the needs of parents in their area for childcare eligible for the childcare element of the Working Tax Credit, for childcare that is suitable for disabled children, and for childcare delivered through the medium of the Welsh Language. Clause 22(4) enables the Assembly to amend, by order, the criteria to which local authorities must, or may, have regard in determining sufficiency and to make consequential amendments.

Clause 23: Powers of local authority in relation to the provision of childcare

70.     Clause 23 provides that a Welsh local authority may make arrangements with childcare providers and provide support to them (including financial support). The clause also allows local authorities to provide childcare themselves. In exercising these powers, Welsh local authorities must have regard to any guidance issued by the Assembly.

Clause 24: Arrangements between local authority and childcare providers

71.     Clause 24 requires local authorities to exercise their powers to ensure that any providers with whom they enter into a financial agreement in relation to childcare provision meet any conditions imposed on them by local authorities. It allows local authorities to require repayment of financial assistance if providers fail to meet such conditions.

Clause 25: Charges where local authority provide childcare

72.     Clause 25 provides that Welsh local authorities may enter into agreements which impose a charge for the provision of childcare by the authority. This does not apply where care is provided for children under section 18 of the Children Act 1989 as provision for charging in these circumstances is made in section 29 of that Act.

Clause 26: Power to require local authority to assess childcare provision

73.     Clause 26 provides the Assembly with a power to make regulations placing a duty on local authorities in Wales to assess the sufficiency of childcare provision in their area. The regulations may prescribe the interval between assessments and require a review of the assessment. They may define arrangements for consultation and require Welsh local authorities to have regard to guidance issued by the Assembly in respect of the assessment and review.

Clause 27: Duty to provide information, advice and assistance

74.     Clause 27 places a duty on Welsh local authorities to establish and maintain a service providing information, advice and assistance to parents and prospective parents in accordance with the clause.

75.     Subsection (2) requires local authorities to provide parents and prospective parents with information on services, facilities and publications that may benefit them or children or young people. The details of the information which must be provided will be dealt with in regulations.

76.      Subsection (3) allows local authorities to provide additional information to parents and prospective parents and to provide information to other persons.

77.     Subsection (4) requires local authorities to provide advice and assistance to parents or prospective parents using or seeking childcare.

78.     Subsection (5) requires the local authority to ensure that the information service is accessible to those who might benefit from it, in particular parents who might otherwise have difficulty accessing it.

79.     Subsection (6) requires local authorities to take account of guidance issued by the Assembly when carrying out their functions.

Clauses 28 and 29: Inspection and Powers of Assembly to secure proper performance etc.

80.     Clauses 28 and 29 ensure that a Welsh local authority's functions under Part 2 (to secure sufficient childcare and to provide information) are inspected by Her Majesty's Chief Inspector of Education and Training in Wales and are subject to the powers of the Assembly to secure proper performance through sections 496, 497, 497A, 497AA and 497B of the Education Act 1996.

Clause 30: Interpretation of Part 2

81.     Clause 30 defines childcare for the purposes of Part 2 as being care which is required to be registered by the Assembly under Part 10A of the Children Act 1989 or care approved through a scheme made by the Assembly under section 12(5) of the Tax Credits Act 2002.

PART 3 - REGULATION OF PROVISION OF CHILDCARE IN ENGLAND

Chapter 1: General Functions of Chief Inspector

Clause 31: General functions of the Chief Inspector

82.     Clause 31 sets out the general functions of the Her Majesty's Chief Inspector of Schools (subsequently referred to as the Chief Inspector) which include keeping the Secretary of State informed about the quality and standards of registered early years provision and unregistered early years provision in schools and its contribution to the well-being of children, and advising the Secretary of State on matters relating to early and later years provision.

Clause 32: Maintenance of the two childcare registers

83.     Clause 32 requires the Chief Inspector to maintain two registers:

• an early years register in which everyone who is required to be registered as an early years provider (and has been registered) is listed; and

• a general childcare register which is to be split into two Parts:

a)     Part A which lists all childcare providers who are required to be registered on the general register (and who have been registered) i.e. those caring for children over 5 but under 8;

b)     Part B which lists all childcare providers who have registered voluntarily.

Chapter 2: Regulation of Early Years Provision

Clause 33: Requirement to register: early years childminders

84.     Clause 33 prohibits a person from providing early years childminding unless he is registered in the early years register. Early years childminding is early years provision provided on domestic premises for reward where there are no more than three people providing the care or assisting with its provision (see clause 96(4) and (5)).

85.     Subsection (2) allows the Secretary of State to exempt certain persons from the requirement to be registered. This power may be used to exempt, for example, nannies and babysitters.

86.     Subsection (4) sets out what happens where a person who should be registered as an early years childminder under subsection (1) fails to register. In such cases the Chief Inspector may serve an enforcement notice on that person and that person may then be prosecuted if they continue to childmind without being registered (see subsection (7)). The notice will stay in effect until revoked by the Chief Inspector.

Clause 34: Requirement to register: other early years providers

87.     Clause 34 sets out the requirement for early years providers, other than childminders, to be registered. Such early years providers must register in respect of particular premises.

88.     Subsection (2) exempts from this requirement early years provision made for children aged 3 and over at a maintained school, non-maintained special school or independent school where that provision is made by the school and one or more pupils attend it. Subsection (3) makes provision for the Secretary of State to exempt by order certain providers from the requirement to be registered.

89.     It is an offence to provide non-exempt early years provision without being registered (see subsection (5)).

Clause 35: Applications for registration: early years childminders

90.     Clause 35 deals with applications for registration by early years childminders who are required to be registered.

91.     Subsection (3) requires the Chief Inspector to grant an application for registration as an early years childminder if the applicant is not disqualified from registration and the childminder meets and will continue to meet the requirements for registration set out in regulations. (Subsection (5) sets out some of the areas which the regulations may deal with which may include (but are not limited to) the premises on which the childminding is to be provided and any person who may be caring for the child.).

92.     Subsection (4) requires the Chief Inspector to refuse an application from an applicant who is disqualified and/or does not meet the requirements set out in regulations.

Clause 36: Applications for registration: other early years providers

93.     Clause 36 makes similar provision for applications by other early years providers. It differs from the provision for childminders in that applications are required to be made in respect of particular premises.

Clause 37: Entry on the register and certificates

94.     Clause 37 places an obligation on the Chief Inspector to place successful applicants in the early years register and to issue them with certificates of registration. This clause makes a distinction between early years childminders and early years providers who are not childminders. This is because, when a childminder is registered, the registration is not linked to any particular premises. In the case of other early years providers, however, the registration is in respect of particular premises. This means that early years providers (other than childminders) may have separate entries in the register in respect of different premises (where they provide childcare at more than one location).

95.     Clause 37 also requires the certificate of registration to set out particular information, as prescribed through regulations. Provision is made for amendment of registration certificates. Subsection (5) requires the Chief Inspector to provide a copy of a lost or destroyed registration certificate when paid a fee as required by regulations.

Clause 38: Conditions on registration

96.     Clause 38 deals with conditions on registration for compulsorily registered early years providers. It allows the Chief Inspector to impose any conditions he thinks fit at any time and to vary or remove any conditions at any time. Conditions may include (but are not limited to) conditions to ensure that providers comply with regulations. It is an offence for a person not to comply with conditions on his registration.

Clause 39: The Early Years Foundation Stage

97.     This clause places a duty on the Secretary of State to specify certain requirements for the purpose of promoting the well-being (as defined by clause 1 (2) of the Bill) of young children who are receiving early years provision. These requirements comprise requirements relating to learning by and the development of young children (the 'learning and development requirements') which the Secretary of State must specify by order and requirements relating to the welfare of young children and the organisation and staffing of early years settings (the 'welfare requirements'), which the Secretary of State must prescribe by regulations. These requirements are together to be known as the Early Years Foundation Stage (EYFS).

Clause 40: Duty to implement the Early Years Foundation Stage

98.     Clause 40 sets out which providers are required to implement the EYFS. This includes all early years providers who are required to be registered under clauses 33 and 34 of the Bill, as well as early years providers who are exempted from the requirement to be registered under clause 34(2) (i.e. provision made on school premises by schools for children aged 3 and over).

99.     Subsection (2) places these providers under a duty to implement the EYFS.

Clause 41: The learning and development requirements

100.     This clause sets out what may and may not be covered by a learning and development order made by the Secretary of State under clause 39(1)(a). The 'learning and development requirements' must cover six areas of learning and development, which are listed in subsection (2). In relation to these six areas, the 'learning and development requirements' may specify:

• early learning goals, setting out what most young children are expected to achieve by 1st September following their 5th birthday;

• educational programmes, setting out what should be taught to young children attending early years provision, although the order may not require providers to allocate any particular periods of time to the delivery of such a programme;

• arrangements for assessing the learning and development of young children attending early years provision.

Clause 42: Further provisions about assessment arrangements

101.     This clause enables the Secretary of State, when making a learning and development order under clause 39(1)(a) specifying assessment arrangements, to confer or impose functions on the persons listed under subsection (2). The order may specify, for example, when, how and by whom young children are to be assessed, as well as the purpose of any such arrangements. Provision must be made for ascertaining whether the purpose of the assessment arrangements is being achieved, and to facilitate this providers may be required to allow anyone on whom the order has conferred functions relating to the monitoring of assessment arrangements to enter premises and monitor those arrangements.

102.     Subsection (6) has the effect that a learning and development order could specify that detailed assessment arrangements may be published in a separate document and shall have the same effect as if they were prescribed in the order.

Clause 43: Welfare requirements

103.     Clause 43 sets out the matters that may be covered by regulations made by the Secretary of State under clause 39(1)(b) (the 'welfare requirements'). They relate to measures for securing young children's safety and welfare when they are receiving early years provision and the effective organisation of an early years setting, as well as procedures for dealing with complaints and the provision of information.

104.     The regulations may also provide that a person is guilty of an offence if they fail to comply with a requirement, and that they are liable to pay a fine if they commit such an offence.

Clause 44: Instruments specifying learning and development or welfare requirements

105.     Clause 44 refers to a "relevant instrument". Subsection (5) explains that a "relevant instrument" means a learning and development order (made under clause 39(1)(a)) or regulations prescribing welfare requirements (made under clause 39(1)(b)). A relevant instrument may, instead of setting out all the provisions to be made, give effect to provisions set out in a separate document.

106.     Under subsections (2) and (3), a relevant instrument may also confer powers and impose duties on the Chief Inspector in the exercise of his functions under Part 3. In particular it may require the Chief Inspector, in exercising these functions, to have regard to factors, standards and other matters prescribed by or referred to in the instrument.

107.     Subsection (4) provides that where a relevant instrument requires a person other than the Chief Inspector to have regard to or meet factors, standards and other matters, it may also allow for any allegation that the person has failed to do so to be taken into account by the Chief Inspector in the exercise of his functions under Part 3 or in any proceedings under that Part.

Clause 45: Procedure for making certain orders specifying learning and development requirements

108.     This clause sets out the consultation procedure required when the Secretary of State proposes to make an order under clause 39(1)(a) to specify the early learning goals or educational programmes for the Early Years Foundation Stage. It requires that the Secretary of State consult relevant bodies in the early years sector about any proposals for the order.

109.     The draft order will then be published, along with a summary of representative views, to enable all with a special interest in the Early Years Foundation Stage to provide any further representations over a one month period. The Secretary of State may then make the order with or without modifications.

Clause 46: Power to enable exemptions to be conferred

110.     Clause 46 enables the Secretary of State to confer exemptions from the learning and development requirements in certain prescribed circumstances. Regulations may provide that the learning and development requirements should not apply, or should apply with specified modifications, to a particular early years provider or to a group of early years providers. Regulations may also enable an early years provider to determine that the learning and development requirements do not apply, or apply with modifications, in respect of a particular child.

Clause 47: Independent Schools

111.     Subsection (1) of this clause amends section 157 of the Education Act 2002 so that the independent school standards prescribed by regulations made under that section do not apply in relation to early years provision for pupils of independent schools who have not attained the age of 3. Independent schools providing early years provision for children under 3 are required to be registered under Part 3 of the Bill and to implement the Early Years Foundation Stage.

112.     Subsection (2) amends section 157 of the Education Act 2002 so that, for early years provision for pupils of independent schools who have attained the age of 3, the independent school standards include the Early Years Foundation Stage

Clause 48 and Schedule 1: Amendments relating to curriculum

113.     This clause gives effect to Schedule 1. Schedule 1 amends section 23 of the Education Act 1997, which sets out the functions of the Qualifications and Curriculum Authority (QCA), in order to remove references to nursery education as a consequence of the provisions of Chapter 2 of Part 3. It also inserts a power for the Secretary of State to provide by order that the QCA shall have functions relating to children who are receiving early years provision under clause 40 of the Bill. The Secretary of State is required to consult the QCA before conferring such functions.

114.     Schedule 1 also makes amendments to Part 6 of the Education Act 2002 as a consequence of the provisions of Chapter 2 of Part 3. Part 6 of the Education Act 2002 makes provision for the National Curriculum for England including in relation to the foundation stage (which currently covers children from the age of 3 to the end of the school year in which they turn 5). As the Early Years Foundation Stage will cover all such children, provisions relating to the foundation stage are being removed from Part 6 of the Education Act 2002.

Clause 49: Inspections

115.     Clause 49 relates to inspection of early years provision and requires the Chief Inspector to inspect early years provision at intervals (to be prescribed in regulations) and on request from the Secretary of State. It also allows the Chief Inspector to inspect early years provision at any other time when he considers it appropriate.

116.     Subsection (3) allows regulations to be made setting out circumstances in which the Chief Inspector will not be required to carry out an inspection when it falls due. Regulations could, for example, provide that an inspection is not required where the provider does not have any children on the roll.

117.     Subsection (4) allows regulations to be made providing that the Chief Inspector is not required to carry out an inspection at an independent school where the early years provision would be inspected by a body approved by the Secretary of State.

118.     Subsection (6) provides for regulations to require the registered person to notify particular people of an inspection.

Clause 50: Report of inspections

119.     This clause sets out requirements for the Chief Inspector to report in writing on any early years provision which he inspects and makes provision for the distribution of copies of the report. Subsection (4) applies subsections (2) to (4) of section 11 of the Education Act 2005. This provision allows the Chief Inspector to publish the report by electronic means and provides for reports to be privileged for the purposes of defamation unless they have been made with malice.

Clause 51: Interpretation of Chapter 2

120.     This clause defines the meanings of terms used in Chapter 2 of Part 3.

Chapter 3: Regulation of Later Years Provision for children under 8

Clause 52: Requirement to register: later years childminders for children under eight

121.     This clause prohibits persons from providing later years childminding for children up to the age of 8 unless they are registered in Part A of the general childcare register as childminders. There is provision for the Secretary of State to exempt providers by order from the requirement to be registered.

122.      Subsection (4) sets out what happens where a person who should register as a later years childminder under subsection (1) fails to do so. In such cases the Chief Inspector may serve an enforcement notice on that person and that person may then be prosecuted if they continue to care for children without being registered (see subsection (7)). The notice will stay in effect until revoked by the Chief Inspector.