Draft Child Minding and Day Care (Disqualification) (Wales) Regulations 2022

This consultation seeks your views on draft regulations entitled the Child Minding and Day Care (Disqualification) (Wales) Regulations 2022 (“the draft 2022 Regulations”) which are intended to replace the Child Minding and Day Care (Disqualification) (Wales) Regulations 2010 (“the 2010 Regulations”).

The purpose of the draft 2022 Regulations is to set out the categories of people who are disqualified from registration in Wales as a child minder or provider of day care under part 2 of the Children and Families (Wales) Measure 2010 (“the Measure”). The draft regulations also apply to people concerned in the management of any provision of day care in Wales.  

In practice, Care Inspectorate Wales (“CIW”), who registers childcare providers in Wales, will check that someone wishing to register as a child minder or provider of day care is not disqualified under these regulations.

It is a criminal offence under the Measure for the registered person to employ anyone who is disqualified under these regulations to be involved in the care of children in a setting.

The 2010 Regulations set out the categories of people who are disqualified from registration in Wales, as a child minder or provider of day care under Part 10A of the Children Act 1989.^[1] People who are disqualified 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.

The purpose of the consultation is to seek your views on the draft 2022 Regulations which are intended to replace the 2010 Regulations.

The 2010 Regulations require updates to reflect developments in the law and to ensure that they are fairer to all. The draft 2022 Regulations will also be made under new legal powers contained in the Children and Families (Wales) Measure 2010.

The draft 2022 Regulations only apply directly to those people who wish to become registered or who are currently registered as child minders and day care providers and to people who are directly concerned in the management of a day care service in Wales. It is the responsibility of the registered child minder or day care provider under existing legislation to ensure that no one disqualified under these regulations are employed to work with children and this forms part of their general duties to ensure that anyone working with or for them is suitable.

When providing your views and feedback please refer to the documents that have been prepared to sit alongside this consultation document, which are:

• draft of the Child Minding and Day Care (Disqualification) (Wales) Regulations 2022 – this includes explanatory notes and the draft regulations and schedules themselves
• Regulatory impact assessment (RIA) – this provides a summary of the costs and benefits of the changes that are planned
• Integrated Impact Assessment (IIA) – this provides an analysis of the impact of the changes in terms of social, economic, cultural and environmental aspects.

[1] Care Inspectorate Wales maintains a register of child minders and day care providers and once someone is successful in their application to register to provide these services, their name is added to the register. It is a criminal offence for anyone to act as a child minder or provider of day care in Wales without being registered with the inspectorate.

The main policy changes can be summarised as follows.

Additional offences

Technical drafting changes have been made to the references to orders, determinations and offences in the three Schedules to the draft 2022 Regulations to reflect the current legal position in the UK and in the Crown Dependencies of Isle of Man, Jersey and Guernsey.

We have added to the draft 2022 Regulations (at Schedule 3) new offences which were included in the equivalent regulations that apply in England when these were updated in 2018[2] on the basis that it is considered appropriate for anyone cautioned or convicted of these crimes to be disqualified from working in regulated childcare in Wales, as well as in England. Schedule 3 to the draft 2022 Regulations includes two further additional criminal offences over and above those which currently appear in the equivalent regulations that apply in England. These are:

• The Voyeurism (Offences) Act 2019, which became law in England and Wales from 12 April 2019. The 2019 Act amends the Sexual Offences Act 2003 to introduce two new offences associated with “upskirting”. “Upskirting” is a term that refers to the action of placing equipment such as a camera or mobile phone beneath a person’s clothing to take a voyeuristic photograph without their permission.
• Anti-social Behaviour, Crime and Policing Act 2014, section 121 which makes it an offences to use violence, threats or any form of coercion to force another person into marriage.

Care and supervision Orders

Regulation 3 together with Schedule 1 to the draft 2022 Regulations explains how the law applies in situations where care and supervision Orders have been made.

The reasons for making care and supervision Orders are that a child is suffering or likely to suffer significant harm.

The 2010 Regulations contain provisions which automatically and inadvertently disqualify some people from registration in Wales based on care and supervision orders, although under the current legislation anyone who considers themselves to be unfairly disqualified in these circumstances can apply for the decision to disqualify them from working in childcare to be waived.

These are the scenarios where people are currently disqualified:

• Foster carers (including kinship foster carers) and those who adopt children – where they are caring for a child who was made subject of a care or supervision Order as a result of the actions of others;
• People who themselves were once (the) subject of a care or supervision order - where the actions of others led to them being made subject of a care or supervision Order for their own protection.

It is felt to be unreasonable for people to be disqualified from working in childcare for the two reasons set out above. The draft 2022 Regulations have therefore been developed in a way which removes these arguably unfair restrictions on people, but importantly retains the disqualification provision in respect of foster carers (including kinship foster carers), adopters and childcare workers where care or supervision Orders have been made as a result of their care of a child.

Determinations

Regulation 3 together with Schedule 1 to the draft 2022 Regulations also explains how the law applies in situations where determinations about a person’s suitability to provide care have been made. By “determinations” we mean decisions made previously about a person’s suitability to provide childcare, for example a past refusal of an application to register to act as a child minder or provider of day care or prohibitions on their ability to act as a private foster carer.

Disqualification by association

Regulation 8 of the draft 2022 Regulations describes how someone can be disqualified based on an offence committed by someone who lives or works in their household or based on an order or determination. This is known in legal terms as “disqualification by association”.

Under the 2010 Regulations, a registered person working on domestic premises (normally this would be a child minder working from their home) and a registered person working on non-domestic premises (normally a person providing care away from their home, i.e. those that work in a day care setting) can be disqualified from working in childcare in Wales based on their association with someone who lives or works in their household who has committed an offence or who has been subject of an order or determination covered by the 2010 Regulations.

The disqualification by association provision currently applies in Wales to childcare providers working on both domestic and non-domestic premises (i.e. to child minders and individuals working in day care settings).

We are planning to remove the disqualification by association provision in the draft 2022 Regulations so far as they apply to childcare on non-domestic premises (i.e. people providing childcare services away from the home, for example in a day care setting).

However, we will retain the disqualification by association provision for registered persons working on domestic premises, which means the provision will still apply to the majority of child minders who work from their home.

With respect to child minders, the draft 2022 Regulations place a duty on people who want to register as child minders as well as those already registered as child minders, to disclose relevant information about people they live with or who work with them if they plan to, or are providing, childcare services from their home. They are disqualified if someone they live with or who works in their home has been the subject of any of the orders, determinations or offences in the draft 2022 Regulations. By doing this, we are aiming to safeguard and protect children from other people who may live and work on the same premises as the child minder, where there is a higher risk of them coming into close and unsupervised contact with the children. Failure to comply with this duty to disclose relevant information is a criminal offence.

Addressing any perceived injustices

In some circumstances, CIW are able to provide a waiver to disqualification, which means they are able to decide that someone is not disqualified having considered in detail the specific circumstances of the case in question. The draft 2022 Regulations retain this route for people to apply for a waiver from the Welsh Ministers in respect of their disqualification in certain circumstances and there is also a mechanism for an appeal to be made to the First Tier Tribunal if an application to CIW for a waiver is denied.

[2] The equivalent regulations that apply in England are the Childcare (Disqualification) and Childcare (Early Years Provision Free of Charge) (Extended Entitlement) (Amendment) Regulations 2018

Child minders

• I want to register as a child minder

If you wish to become a registered child minder working from your own home these changes will not impact on you unless one of the new Orders, determinations or specified offences apply to you personally or to someone who lives with you or who works in your household.

If at the time of registration you live with someone over the age of 16 or want to work with an assistant, CIW will undertake some checks in respect of these people and you will need to complete a statement to confirm that you have discussed with these people whether there is anything which may lead to them being disqualified.

• I’m already a registered child minder

If you are already a registered childminder working from your own home these changes will not impact on you unless one of the new Orders, determinations or specified offences apply to you personally or to someone who lives with you (and who is over 16 years of age) or to someone who is involved in the care of children on your premises. If you already employ an assistant or live with someone over the age of 16, you should check that none of the new Orders, determinations or specified offences apply to them.

• I’m a child minder assistant

You have a duty to disclose any relevant information in respect of the Orders, determinations and offences before you start working and during your employment.

Day care

• I want to register as a day care provider

If you want to apply to become a registered provider of day care, these changes will not impact on you unless one of the new Orders, determinations or specified offences apply to you personally or to someone who you employ to be involved in the care of the children on your premises.  Under the draft 2022 Regulations, it will not make any difference to your application for registration if someone you live with or who works in your household is disqualified under these regulations. However when you apply, CIW will check that the Person in Charge and Responsible Individual, if different from the registered person, is not disqualified under the regulations.

• I’m already registered to provide day care

If you are already a registered day care provider, the main change is that you could become disqualified if one of the new Orders, determinations or specified offences apply to you personally or to someone who you employ to be involved in the care of the children on your premises. However it will not count against you any more if someone you live with or who works in your household is disqualified under the draft 2022 Regulations. You will need to check that none of the new orders, determinations or specified offences apply to people who work for you and who are involved in the care of children.

• I want to work in a day care setting but I will not be the registered person, Responsible Person or Person in Charge

You will be able to work in a day care setting unless one of the new Orders, determinations or specified offences apply to you personally. Your employer will check this.

Care and supervision Orders

• I was made subject of a care or supervision order as a child for my own protection and now want to register as a child minder or provider of day care

If you were the subject of a care or supervision Order as a child, you will no longer be automatically disqualified from registration for that reason alone under the draft 2022 Regulations.

• I am a foster carer (or kinship foster carer) or adoptive parent caring for a child who was made subject of a care or supervision Order as a result of the actions of others and now I want to register as a child minder or provider of day care

If you are a foster carer (or kinship foster carer) or adoptive parent and care for a child who was or is subject of a care or supervision Order as a result of the actions of others you will, under the draft 2022 Regulations, no longer be automatically disqualified from registration.

You will only be automatically disqualified if the Orders are as a result of your care of a child.

Other

• What information do I need to disclose?

If you are applying to become a registered person (child minder or day care provider) you have a duty to disclose relevant information about the orders, determinations and offences in the regulations as they apply to you.  Anyone who wants to register to provide childcare from their home as a child minder will also need to disclose relevant information about the orders, determinations and offences in the regulations as they apply to anyone who lives or works in their household, and who are over the age of 16. Failure to do so is a criminal offence.

• Can I challenge my disqualification under the draft 2022 Regulations??

You will have the right to apply for a waiver to the Welsh Ministers should you feel that you have been unfairly disqualified as, in certain circumstances and on a case by case basis, some people can ask CIW to grant a waiver to disqualification (i.e. make an exception). However there are some circumstances where there is no option to apply for a waiver, for example if someone is named on a list for the protection of children.

• Right to appeal

If a waiver has not been agreed, there will be a right to appeal to the First Tier Tribunal under the draft 2022 Regulations as is the case at present.

New offences and orders included in the draft 2022 Regulations but which were not in the 2010 Regulations

The Welsh Government will be data controller for any personal data you provide as part of your response to the consultation. Welsh Ministers have statutory powers they will rely on to process this personal data which will enable them to make informed decisions about how they exercise their public functions. Any response you send us will be seen in full by Welsh Government staff dealing with the issues which this consultation is about or planning future consultations. Where the Welsh Government undertakes further analysis of consultation responses then this work may be commissioned to be carried out by an accredited third party (e.g. a research organisation or a consultancy company). Any such work will only be undertaken under contract. Welsh Government’s standard terms and conditions for such contracts set out strict requirements for the processing and safekeeping of personal data.

In order to show that the consultation was carried out properly, the Welsh Government intends to publish a summary of the responses to this document. We may also publish responses in full. Normally, the name and address (or part of the address) of the person or organisation who sent the response are published with the response. If you do not want your name or address published, please tell us this in writing when you send your response. We will then redact them before publishing.

You should also be aware of our responsibilities under Freedom of Information legislation.

If your details are published as part of the consultation response then these published reports will be retained indefinitely. Any of your data held otherwise by Welsh Government will be kept for no more than three years.

Your rights

Under the data protection legislation, you have the right:

• to be informed of the personal data held about you and to access it
• to require us to rectify inaccuracies in that data
• to (in certain circumstances) object to or restrict processing
• for (in certain circumstances) your data to be ‘erased’
• to (in certain circumstances) data portability
• to lodge a complaint with the Information Commissioner’s Office (ICO) who is our independent regulator for data protection.

For further details about the information the Welsh Government holds and its use, or if you want to exercise your rights under the UK GDPR, please see contact details below:

Data Protection Officer:
Welsh Government
Cathays Park
CARDIFF
CF10 3NQ

e-mail: Data.ProtectionOfficer@gov.wales

The contact details for the Information Commissioner’s Office are:

Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Tel: 01625 545 745 or
0303 123 1113

Website: https://ico.org.uk/