Legislation update
Published
22nd Apr 2009
by Admin
Community Care Inform's legal expert, Ed Mitchell, has provided the latest legislation update for your attention. Please find the details below.
Emergency Protection Orders
There used to be a bar on a court hearing an application for discharge of an Emergency Protection Order during the first 72 hours of the life of the Order. However, this was removed on 6 April 2009, because of human rights concerns. On that date, an amendment made to section 45 of the Children Act 1989 by section 30 of the Children and Young Persons Act 2008 came into force. Now, a court may hear an application for discharge during the first 72 hours of the life of an EPO. The CC Inform guide to the Children Act 1989 has been amended to take account of this change.
Independent Review Mechanism for Fostering
The relationship between local authorities and actual and prospective foster parents can be contentious. It is therefore important to note that local authorities do not have an entirely free hand to make whatever fostering decisions they wish. Persons whom a local authority in England intends not to approve as suitable to foster now have new rights to challenge the authority's proposal. Actual foster parents also have new rights to challenge a decision to terminate, or alter the terms of, their approval. The rights are contained in the Independent Review of Determinations (Adoption and Fostering) Regulations 2009 (S.I. 2009/395). Where a fostering service provider proposes to make one of the decisions just mentioned, the prospective or actual foster parent has the right to have the matter looked at by an independent panel. The authority must take the panel's recommendation into account when making its ultimate decision.
Click here for the Independent review regulations. Associated amendments have also been made to the Fostering Services Regulations 2002. CC Inform's amended version of those regulations are available here.
Fostering Panels
The powers of fostering panels in England have been bolstered by amendments to regulation 26 of the Fostering Services Regulations 2002 (which sets out the functions of fostering panels). The amendments have the following effect:
- they give fostering panel members an express power to request from the fostering services provider information and assistance that they consider to be relevant and necessary.
- they require fostering services providers to provide the information and assistance requested, so far as is reasonably practicable.
- they give a fostering panel an express power, in considering what recommendation to make to the provider, to seek legal or medical advice.
The law relating to membership of fostering panels in England has also been altered. As a result of amendments made to regulation 24 of the Fostering Services Regulations 2002, the maximum period of office for a member of a fostering panel has been increased from two consecutive terms of up to three years to three terms of up to three years, whether served consecutively or not.
Click here for CC Inform's amended version of the Fostering Service Regulations 2002.
Adoption
Relatively minor amendments have been made to the Family Procedure (Adoption) Rules 2005. These concern adoption proceedings in a family proceedings court (magistrates' court) and clarify that the court may proceed with a hearing in the absence of an applicant or any person responding to an application. This is already the case in proceedings in the High Court and county courts. The CC Inform version of the Adoption Rules has been amended to take account of this change and is available here (the relevant rule is Rule 95).
Safeguarding Vulnerable Groups Act 2006
The CC Inform guide to the Safeguarding Vulnerable Groups Act 2006 (available here) has been amended to reflect the following recent developments:
- new regulations which set out which offenders are automatically included on the list of persons barred from working with children. For further details, see section 2 of the guide to the 2006 Act,
- new regulations which set out the information to be given (once the 2006 Act is fully operational) to the Independent Safeguarding Authority upon an employer referring an individual to the Authority. For further details see sections 35 and 39 of the guide to the 2006 Act,
- transitional legislation which acts as a legal bridge between the current safeguarding regimes and the 2006 Act regime so that, when the 2006 Act regime is fully operational in October 2009, it should work smoothly straight away. For further details, see section 63 of the guide to the 2006 Act.
Childcare registration
Any registration authority needs supporting powers, such as powers of entry, in order to work effectively. In this respect, Ofsted, which is the registration authority in respect of childcare provision in England, is no different from any other registration authority. Court rules have recently been amended so that Ofsted may apply for a warrant to enter premises in support of its regulatory role without notice being given to the person whose premises Ofsted wishes to enter. For example, if Ofsted thinks that a person is carrying on an unregistered nursery, it might want to obtain a warrant to enter those premises without the person in charge of the premises being told that it has applied to the court for a warrant.
The CC Inform versions of the relevant Court rules have been amended in the light of these recent changes. Click here for the amended Family Proceedings Rules 1991 (the relevant rule is Rule 4.4). And click here for the amended Family Proceedings Court (Children Act 1989) Rules 1991 (the relevant rule is Rule 4).
Human fertilisation
The law, and not biology, determines the parentage of a child conceived using donated sperm. That law has now been updated to take account of civil partnerships and same-sex relationships. Historically, the general position was that (a) the husband of a woman treated with donor sperm was to be the father of any child conceived (unless he did not agree to the treatment) and (b) a man who was not the woman's husband, but was treated with her in an authorised clinic, would also be deemd to be the father of any child conceived using donated sperm.
The Human Fertilisation and Embryology Act 2008 extended the law so as to (a) put a civil partner of a woman in the same position as a husband, and (b) put certain same-sex partners in the same position as an unmarried male partner (so that where these provisions apply both women are the parents of a child conceived using donated sperm). This meant that there was a need for court rules about applying for declarations of parentage to be updated to cover cases where a mother's same-sex partner alleged that she was entitled to be treated as the parent of a child conceived using donated sperm. Click here for the amended Family Proceedings Rules 1991 (the relevant rule is Rule 3.13)."
