SECTION 71 – TERMINATION OF VOLUNTARY REGISTRATION ON EXPIRY OF PRESCRIBED PERIOD
The Explanatory Notes to the Childcare Act 2006 describe this section as follows:
“Section 71 allows the Secretary of State to make regulations specifying a period of time after which voluntary registration will expire. Providers who wished to continue to be registered would be required to reapply for registration on expiry of this period.”
SECTION 72 – PROTECTION OF CHILDREN IN AN EMERGENCY
The Explanatory Notes to the Childcare Act 2006 describe this section as follows:
“Section 72 allows the Chief Inspector to apply to a Justice of the Peace for an order cancelling registration, varying or removing a condition on registration or imposing a condition. This application may be made without giving notice to the registered person. The Justice of the Peace has the power to make the order if it appears that a child for whom care is being provided by that person is suffering or is likely to suffer harm. Harm and significant harm are defined by reference to the Children Act 1989 under which harm is defined as ill treatment or impairment of physical or mental health or physical, intellectual, emotional, social or behavioural development, including impairment which may be suffered from seeing or hearing another person being ill-treated. ‘Significant harm’ is defined by reference to the child’s health or development as compared to what could reasonably be expected of another child.”
Note, section 74 of the Childcare Act 2006 confers a right of appeal against an order made under this section, and the Chief Inspector must serve a copy of the order upon the registered person as soon as is reasonably practicable after it has been made (subsection (5)).
SECTION 73 – PROCEDURE FOR TAKING CERTAIN STEPS
The Explanatory Notes to the Childcare Act 2006 describe this section as follows:
“Section 73 sets out the procedure for taking certain steps such as refusing an application for registration, imposing, varying, removing or refusing to remove conditions on registration and cancelling registration. Subsection (4) requires the Chief Inspector to give 14 days’ notice before taking such a step and the person concerned must be given an opportunity to make an objection if he so wishes. However, the Chief Inspector may take such a step before the 14 days is up if the applicant indicates he will not be objecting.
The taking of certain steps does not have effect until the time for appealing has expired or, if an appeal is brought, until the appeal is determined. There is an exception to this where the person affected has notified the Chief Inspector that he does not intend to appeal (see subsections (8) and (9)).”
SECTION 74 – APPEALS
The Explanatory Notes to the Childcare Act 2006 state that “section 74 sets out the procedure for appeals and replicates the existing position in the Children Act 1989. The section allows the applicant or registered person to appeal to the tribunal set up under the Protection of Children Act 1999 (and commonly known as the Care Standards Tribunal) against the taking of the steps specified in subsection (1).”
The steps specified in subsection (1) for which there is a right of appeal are:
The Explanatory Notes go on:
“Subsection (2) also allows appeals to the tribunal against any other determinations made by the Chief Inspector which are prescribed in regulations. Subsection (3) makes provision for appeals against orders under section 72 (which deals with protection of children in an emergency).
Subsection (4) requires the tribunal to either confirm the step or determination or direct that it shall not have effect. In some circumstances, the tribunal may also impose conditions or vary or remove conditions imposed on registration.”
Regulations made under this section
The Childcare (Disqualification) Regulations 2009 (S.I. 2009/1547) have been made under this section. The Regulations are available at www.opsi.gov.uk/si/si2009/uksi_20091547_en_1. These Regulations provide, in regulation 11, that a refusal by the Chief Inspector to grant a waiver from disqualification may be appealed to the first-tier tribunal established under the Tribunals, Courts and Enforcement Act 2007.
SECTION 75 – DISQUALIFICATION FROM REGISTRATION
The Explanatory Notes to the Childcare Act 2006 describe this section as follows:
“Section 75 sets out the provisions for disqualification from registration. This is largely based on existing provisions in paragraph 4 of Schedule 9A to the Children Act 1989. It provides for the Secretary of State to make regulations setting out when a person may be disqualified from registration. Subsection (3) sets out particular circumstances in which the regulations may provide for a person to be disqualified. Subsection (4) allows regulations to provide for a person to be disqualified if he lives in the same household as someone who is disqualified or if he lives in a household in which any such person is employed. Subsection (5) makes provision for the regulations to allow the Chief Inspector to waive disqualification in certain circumstances.”
The consequences of disqualification are set out in section 76.
Regulations made under this section
The Childcare (Disqualification) Regulations 2009 (S.I. 2009/1547) have been made under this section. The Regulations are available at www.opsi.gov.uk/si/si2009/uksi_20091547_en_1.
SECTION 76 – CONSEQUENCES OF DISQUALIFICATION
The Explanatory Notes to the Childcare Act 2006 describe this section as follows:
“Section 76 sets out the consequences of disqualification. These are that a disqualified person may not provide any provision in respect of which he is required to be registered (or only exempt from registration by virtue of the provision being made at certain schools). Subsection (3) provides that no one may employ a disqualified person in connection with provision that is required to be registered (or exempt school provision).
Contravention of these prohibitions is an offence (see subsection (4)). However, there are defences to the offence. Under subsection (5) a person who is disqualified by virtue of living in a household in which a disqualified person lives or works does not commit an offence if he does not know and has no reasonable grounds for believing that a person who lives or works in his household is disqualified. A person who employs someone who is disqualified does not commit an offence if he does not know and has no reasonable grounds for believing that the employee was disqualified.”
The maximum penalty on conviction for an offence under this section is six months’ imprisonment, or a £5,000 fine, or both.
SECTION 77 – POWERS OF ENTRY
Section 77 gives a person authorised by the Chief Inspector powers of entry at any reasonable time on premises if he has reasonable cause to believe that a person is providing early years or later years provision on the premises without being registered as required by the Act (subsection (1)). It also gives a power of entry on the premises of any registered provider at any reasonable time (subsection (2)).
A person exercising the power of entry has a range of associated powers, such as power to inspect, take copies of, or seize, documents (subsection (4)) and power to require any person at the premises to give such assistance as s/he is able to give (subsections (5) and (6)).
Subsection (7) provides that the person requesting entry under this power must show an authenticated document showing their authority to enter if requested. Under subsection (8) it is an offence intentionally to obstruct a person exercising powers under this section (which include powers to inspect premises and interview in private the person caring for the children). Subsection (9) specifies the penalty for the offence, a fine not exceeding £2,500.
In practice, the Chief Inspector him/herself does not carry out inspections. Instead, the Chief Inspector authorises members of his/her staff to carry out inspections.
SECTION 78 – REQUIREMENT FOR CONSENT TO ENTRY
The Explanatory Notes to the Childcare Act 2006 describe this section as follows:
“There are circumstances in which a power of entry conferred by the Act is exercisable on domestic premises. In particular, many children are looked after in the homes of their childminders.
In other cases, children may be looked after in the home of a friend or relative of the childminder or in their own home. In such cases, section 78 generally requires the consent of an adult occupying the property before a power of entry under the Act may be exercised (see subsection (2)). This requirement does not apply to entry under section 77(1) (which covers rights of entry where a person authorised by the Chief Inspector has reasonable cause to believe that a person is providing early years or later years provision without being registered as required by the Act).
Subsection (3) clarifies that the Chief Inspector may impose a condition on registration requiring a provider who operates on premises which are not his own to obtain the necessary consent to entry.”
SECTION 79 – POWER OF CONSTABLE TO ASSIST IN EXERCISE OF POWERS OF ENTRY
The Explanatory Notes to the Childcare Act 2006 describe this section as follows (the note has been updated to take account of amendments made to this section by the Education and Inspections Act 2006):
“Section 79 is based on existing powers in section 102 of the Children Act 1989 allowing a constable to assist in the exercise of powers of entry.
Subsection (1) enables [the Chief Inspector or a person authorised by him under the Education and Inspections Act 2006] to apply for a warrant authorising a police constable to assist him in the exercise of a power conferred by [section 77(1) or (2) of the Childcare Act 2006].
Subsection (2) provides that the court may issue such a warrant if it appears that the [Chief Inspector or an authorised person] has attempted to exercise a power conferred by section 77 but has been prevented from doing so or that the [Chief Inspector/authorised person] is likely to be prevented from exercising any such power. The warrant authorises the use of reasonable force by the constable providing assistance, if this is necessary.
Subsection (3 provides that the warrant must be both addressed to and executed by a constable.
Subsection (4) provides that Schedule 11 to the Children Act 1989 applies for the purposes of determining jurisdiction in relation to proceedings for the issue of a warrant under this section.
Subsection (5) defines what is meant by “court” for the purposes of the section. This is subject to any provision made by or under Schedule 11 of the Children Act 1989 (c.41) determining which court has jurisdiction. The effect of subsections (4) and (5) is that proceedings may be brought in the High Court, county court or magistrates’ court but this is subject to any provision, made by or under Schedule 11 of the Children Act 1989, which has the effect of determining that proceedings must be brought in a particular court.”
SECTION 80 – COMBINED REPORTS
The Explanatory Notes to the Childcare Act 2006 describe this section as follows:
“Section 80 allows for the Chief Inspector to combine reports (if he considers it appropriate) in certain cases. For example, he may combine reports where he carries out inspections of compulsorily registered early years provision and compulsorily registered later years provision. This power may be useful where a childminder cares for both young children and older children.”
This section was repealed by the Education and Inspections Act 2006. However, its effect is re-enacted by that Act.