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  1      The main legislative changes affecting the child care system that were a prelude to the period under review have been discussed in Chapter 3 of this report. The powers and duties of local authorities thereafter in relation to children were detailed and complex. In this appendix we outline only those provisions that are most relevant to our report and, in doing so, we use terminology current at the time.

Modes of entry to care

  2      In the 1970s and 1980s there was a wide variety of routes by which a child might enter into care. However, those most relevant to the large majority of children whose histories and complaints we have considered were:

(a)  Reception into care by voluntary agreement[936].

This could be followed by the assumption of parental rights by the local authority in defined circumstances[937].

(b)  Committal to the care of the local authority by the courts in care proceedings[938].

Care orders replaced, from 1971, the former approved school orders and fit person orders. Under care orders parental rights were transferred to the local authority, which was given full discretion as to the placement of children made subject to such orders.

(c)  Committal to the care of the local authority by the courts in matrimonial proceedings in specified circumstances[939].

The powers of local authorities in such cases were similar to those in (b) but there were some limitations on their discretion.

The duties of a local authority

  3      The general duty of a local authority in reaching a decision relating to any child in its care was:

(a)  so to exercise its powers with respect to the child as to further the child's best interests and afford the child the opportunity for the proper development of his/her character and abilities; and

(b)  to make such use of facilities and services available for children in the care of their own parents as appeared to the local authority reasonable in each child's case[940].

  4      With the effect from 1 January 1971 local authorities' powers and duties were enlarged (a) to add an obligation to receive a child committed into its care and (b) to confer on them the same powers and duties as a parent or guardian would have had apart from the order, including (but subject to regulations) the power to restrict the child's liberty[941].

  5      On 1 January 1976, the general duty was significantly amended by the Children Act 1975. The amended duty was re-stated in the same form by the Child Care Act 1980 as follows:

(a)  to give first consideration to the need to safeguard and promote the child's welfare throughout his childhood; and

(b)  so far as practicable to ascertain the wishes and feelings of the child regarding any decision relating to that child and to give due consideration to them having regard to the child's age and understanding.

  6      The local authority was obliged to discharge its duty to accommodate and maintain a child in its care by[942]:

(a)  boarding the child out (state approved fostering) in accordance with the regulations made by the Secretary of State[943]; or

(b)  maintaining the child in a home provided by the local authority or in a voluntary home; or

(c)  making such other arrangements as seemed appropriate to the local authority (including the power to allow a child to be under the charge and control of a parent, guardian, relative or friend).

  7      The Act of 1948 required local authorities to consider boarding out in preference to placement in a residential home but this duty was not re-enacted in the Act of 1969. The new duty gave local authorities the discretion to make arrangements for accommodation and maintenance as they saw fit. However, a high percentage of children boarded out continued to be seen as an indicator of good practice.

Ways of accommodating children

  8      Both the Children and Young Persons Act 1969 and the Child Care Act 1980 imposed a duty upon local authorities to provide community homes within overall arrangements for the regional planning of accommodation. Until the 1 January 1984 the duty upon a local authority was to provide, manage, equip and maintain such community homes as were included in the regional plan approved by the Secretary of State. The plan had to contain proposals with regard to the nature and purpose of each home and for the provision of facilities for observing the physical and mental condition of children in care and for assessing the most suitable accommodation and treatment for them.

  9      In 1984 the regional plan arrangements were discontinued. From then on, local authorities, acting alone or jointly, were required to make arrangements by themselves or with voluntary organisations to provide for the accommodation needs of children in care; and this requirement included a duty to ensure that community homes were available for the accommodation and maintenance of such children. In making such arrangements local authorities had to have regard to the need to ensure that accommodation of different descriptions was available and suitable to meet the varying requirements of children.

Statutory reviews

  10    It was the duty of the local authority (under section 27(4) of the Children and Young Persons Act 1969) to review the case of every child in its care every six months and, if he was the subject of a care order, to consider upon the review whether to apply to discharge the order.

  11    The Children Act 1975 made provision for the duty to be defined further by regulations to be made by the Secretary of State, which could include the manner, the times and the matters to be reviewed. Despite the importance of the potential effect of such regulations on the quality of child care provision and the enactment of a like provision in section 20 of the Child Care Act 1980, neither provision was ever brought into force.

  12    Regulations eventually appeared as the Review of Children's Cases Regulations 1991[944]. These regulations require a first review within four weeks of the date upon which a child begins to be looked after or provided with accommodation by a responsible authority, a second review not more than three months after the first and subsequent reviews at not more than six months intervals.

The regulation of children's homes

  13    Local authority community homes were not required to be registered during the period under review. They were, however, regulated by the Community Homes Regulations 1972, with effect from 1 April 1972, until those regulations were superseded by the Children's Homes Regulations 1991, made under the Children Act 1989. The latter regulations did not come into force until 14 October 1991.

  14    Voluntary children's homes have been required to be registered since the Children Act 1948[945]. Sections 15 and 31 of that Act authorised the Secretary of State to make regulations for the conduct of both local authority and voluntary homes; and, until 1 April 1972, both categories of home were governed by the Administration of Homes Regulations 1951. From April 1972, however, the regulatory provisions diverged: the 1951 regulations continued to apply to voluntary homes until they too were superseded by the Children's Homes Regulations 1991[946].

  15    Private children's homes were not required to be registered until they were brought into a common framework with voluntary homes when section 63 of the Children Act 1989 came into force on 14 October 1991; and there were no regulations prior to the 1991 regulations governing the conduct of private children's homes. Provision for the registration of private children's homes had been made in the Children's Homes Act 1982 but the relevant provisions were never brought into force. Thus, there were quite glaring gaps and inconsistencies in the regulatory framework for residential establishments for children.

  16    The Community Homes Regulations 1972, which applied to controlled community homes and assisted community homes as well as local authority homes, required the local authority (or the defined body responsible for other community homes) to arrange for the community home under their charge "to be conducted so as to make proper provision for the care, treatment and control of the children who are accommodated therein"[947]. There were requirements also for monthly visits and reports on local authority homes by such persons as the local authority considered appropriate (and by a manager in the case of other community homes); for the provision of suitable facilities for visits by parents, guardians, relatives and friends of the children accommodated in the homes; and for the person in charge of the home to provide information and access to records to persons entitled to inspect it under section 58 of the Act of 1969. Other matters dealt with in the regulations were control and secure accommodation, which are referred to in paragraphs 22 to 26 of this Appendix.

  17    The Administration of Homes Regulations 1951, which governed voluntary homes until October 1991, required the administering authority to make arrangements for every home provided or carried on by them to be conducted "in such a manner and on such principles as are calculated to secure the well-being of the children in the home"[948]. Again, there were provisions for monthly visits and reporting by a person (on behalf of the administering authority) who had to satisfy himself whether the home was being conducted in the interests of the well-being of the children and in relation to facilities for visiting by parents and guardians, as well as detailed provisions about other matters, (which need not be quoted here) such as the keeping of records, religious instruction, health and fire precautions. The Children Act 1948 also laid a duty upon local authorities to arrange visits from time to time to children in voluntary homes in their area in the interests of the well-being of the children, whether or not the children there were in their care.

  18    Section 63 of the Children Act 1989, as amended in 1991 and 1993, now provides that no child shall be cared for and provided with accommodation in a children's home unless the home is registered under Part VIII of the Act with the local authority for its area. For this purpose "children's home" is defined as follows:

"(a) means a home which provides (or usually provides or is intended to provide) care and accommodation wholly or mainly for more than three children at any one time; but

(b)  does not include a home which is exempted by or under any of the following provisions of this section or by regulations made for the purposes of this subsection by the Secretary of State."

  19    Establishments falling outside this definition include community homes, voluntary homes, health service hospitals and schools. However, an independent school is a children's home at any time if at that time accommodation is provided for more than three of the children at that school, or under arrangements made by the proprietor of the school, for more than 295 days in that year or it is intended to do so, unless the school is approved by the Secretary of State[949]. Voluntary children's homes have to be registered by the Secretary of State under section 60 of the Act of 1989.

  20    The Children Act 1989 and the 1991 regulations contain additional provisions governing the welfare of children in private children's homes, annual reviews of the registration and the duties of local authorities in respect of the homes.

Control and punishment

  21    Corporal punishment was not banned in community homes and voluntary children's homes until 19 February 1990 when the Children's Homes (Control and Discipline) Regulations 1990 came in to force[950]. The ban was extended to registered private children's homes by Regulation 9 of the Children's Homes Regulations 1991.

  22    Until 1 April 1972 punishment in both community homes and voluntary homes was governed by Regulation 11 of the Administration of Children's Homes Regulations 1951, which continued to apply thereafter to voluntary homes only until 19 February 1990. Regulation 11 dealt with the subject in some detail as follows:

"(1) No corporal punishment except that authorised by paragraph (3) of this regulation shall be administered by any person except the person in charge of the home or in his illness or absence his duly authorised deputy.

(2)  No corporal punishment shall be administered to a girl who has attained the age of ten years or to a boy who has attained the age at which he is no longer required by law to attend school (hereafter referred to as 'school leaving age').

(3)  No corporal punishment shall be administered to a child under ten years of age except by smacking his hands with the bare hand of the person administering the punishment.

(4)  No corporal punishment shall be administered to a boy who has attained the age of ten years but has not attained school leaving age except the caning of the posterior of the boy with a cane of a type approved by the Secretary of State applied over the boy's clothing to the extent of six strokes or less.

(5)  No caning shall be administered in the presence of another child.

(6)  No corporal punishment shall be administered, without the sanction of the medical officer of the home, to any child known to have any physical or mental disability."

  23    From 1 April 1972 the relevant regulation governing community homes (until 19 February 1990) was Regulation 10 of the Community Homes Regulations 1972, which did not make any express reference to corporal punishment. Sub-paragraph (1) required the control of a community home to be maintained on the basis of "good personal and professional relationships between the staff and the children resident therein". Sub-paragraph (2) permitted undefined "additional measures" for the maintenance of control to be taken but such measures and the conditions under which they were to be taken had to be approved in respect of each home by the local authority or other responsible body. The approval had to be reviewed every 12 months and a permanent record of any use of the measures, including the circumstances in which they were used, had to be kept by the Officer-in-Charge.

  24    Regulation 2(2) of the Children's Homes (Control and Discipline) Regulations 1990 prohibited a number of specified sanctions as well as any form of corporal punishment. These were deprivation of food and drink; any restriction or refusal of any facility to receive visits or communications from specified persons, including a solicitor; any restriction or refusal of any facility to make visits to parents or guardian or relatives; requiring a child to wear distinctive or inappropriate clothes; and the use, or withholding, of medication or medical or dental treatment. The list of prohibitions was re-enacted in Regulation 8 of the 1991 Regulations and extended by the addition of intentional deprivation of sleep, the imposition of fines (except by way of reparation) and any intimate physical examination of the child. These prohibitions apply to registered children's homes as well as community homes and voluntary homes.

Secure accommodation

  25    By section 24(2) of the Act of 1969 a local authority was given the power to restrict a child's liberty to such extent as it thought appropriate. However, by section 43(2)(c) of the same Act, the Secretary of State was given power to make regulations regarding the conduct of community homes, including power to require his approval for the use of secure accommodation and to impose requirements as to the placement of children.

  26    The Secretary of State exercised these powers in Regulations 11 to 14 of the Community Homes Regulations 1972. Secure accommodation had to be expressly approved by the Secretary of State, who could and did impose conditions, and strict time limits were imposed: the maximum continuous period, in general, to be authorised by the local authority was 28 days and the maximum period with the authority of the Officer-in-Charge was one continuous period of 24 hours or a total of 48 hours in a consecutive period of seven days. An extension could be granted by the responsible body (local authority or voluntary organisation), subject to review every three months.

  27    A new scheme was implemented from 1 January 1984 by the insertion of section 21A into the Child Care Act 1980[951]. Thereafter no child in the care of a local authority could be placed or kept in accommodation provided for the purpose of restricting liberty unless one or more of the following criteria was met:

(a)  he had a history of absconding and was likely to abscond from any other description of accommodation; and

(b)  if he absconded, it was likely that his physical, mental or moral welfare would be at risk; or

(c)  if he was kept in any other description of accommodation he was likely to injure himself or other persons.

  28    The new scheme, to which there were limited exceptions, was a marked improvement because it imposed a requirement that a local authority had to apply to the court for any extension beyond an initial specified period. New Secure Accommodation Regulations in 1983 and 1986 replaced the relevant provisions of Community Homes Regulations 1972 and the discretion of the officer in charge to detain a child in specified circumstances was increased to a consecutive period of 72 hours (or 72 hours in aggregate in a consecutive period of 28 days). Separate guidance[952] indicated that single secure rooms in community homes would no longer be approved. It stated also, however, that "control imposed or applied by staff or other responsible adults will not be considered to constitute the restriction of liberty, though control should always be applied in a manner consistent with good child care practice".

Powers of inspection

  29    Before leaving this account of the legislation affecting community homes it is appropriate to emphasise that throughout the period under review comprehensive powers to inspect all forms of premises in which children in care were accommodated were vested in the Secretary of State. These powers of inspection[953] extended to private children's homes and to premises where children had been boarded out by a voluntary organisation and where foster children and protected children were being accommodated and maintained. The person authorised by the Secretary of State to conduct the inspection could be an officer of a local authority but only with the consent of that authority.

Independent visitors

  30    An additional statutory safeguard was a local authority's duty to appoint an independent visitor for any child over the age of five years accommodated by the local authority in a community home or other establishment who had not been allowed to leave in the preceding three months to attend school or work and where it appeared to the authority that communication between him and his parents or guardian had been so infrequent that it was appropriate to appoint a visitor for him. Moreover, if the child had not been visited by either parent or a guardian in the previous 12 months, the local authority had to appoint a person independent of the authority and unconnected with the community home to be the child's visitor. The role of the independent visitor was to befriend the child and to advise him and he had the power to apply for the child's discharge from care[954]. The duty applies now in respect of a child looked after by a local authority whether or not he is in compulsory care and where family contact in the previous 12 months has merely been infrequent, provided that the child agrees to the appointment.

The boarding out of children in care

  31    The boarding out of children in care with foster parents was governed throughout the period under review by successive Boarding Out Regulations. The 1955 Regulations remained in force largely unchanged until they were superseded by the 1988 Regulations in June 1989. Thus, it was the 1955 Regulations and the accompanying Home Office memorandum[955] that governed practice in this field during almost the whole of the period in which the abuse that we have investigated occurred. We set out below only the main provisions of those regulations that related to long term placements by a local authority. The 1988 Regulations were a re-statement and refinement of the earlier version but they were soon replaced in October 1991 by new regulations made under the Children Act 1989.

  32    The 1955 regulations provided quite a comprehensive framework of regulation for boarding out, including provision for the vetting of prospective foster parents. Regulation 17 required a written assessment to be made, prior to placement, of the suitability of both the home and the foster parents and their ability to meet the needs of a particular child. The supervisory regime included the following responsibilities:

--to ensure that a visitor should see the child and visit the foster homes at specified minimum intervals and forthwith after the receipt of a complaint by or concerning the child unless it appeared that action upon it was unnecessary;

--to consider the welfare, health, conduct and progress of the child and any complaint concerning the child whenever the visitor saw the child and to make a written report;

--to compile and keep case records;

--to keep registers of all children boarded out in the area;

--in the light of the visitors' reports to review the welfare, health, conduct and progress of every child within three months of placement and thereafter no less often than once every six months[956];

--to ensure that children were medically examined before and throughout placement.

  33    It was the duty of the placing local authority to terminate boarding out if it appeared that the boarding out was no longer in the child's best interests. Moreover, the regulations conferred a power for the supervising visitor to remove a child from the foster home forthwith if the visitor considered that the conditions in which the child was boarded out endangered the latter's health, safety or morals. An undertaking in a form specified in the schedule to the regulations was required to be signed by foster parents: the undertaking covered such matters as permitting visits, access to the child and permitting removal of the child from the foster home when requested by the local authority.

  34    The Foster Placement (Children) Regulations 1991 came into force from 14 October 1991. The main changes under these regulations are that:

--approval is of the foster parents rather than the household in which the child is to live;

--foster parents may be approved by only one local authority or voluntary organisation at any one time;

--an emergency placement may be made with any approved foster parent for up to 24 hours;

--an immediate placement may be made with a relative or friend for up to six weeks;

--local authority responsibilities towards children placed by voluntary organisations are increased;

--foster parents now have to undertake in writing not to administer corporal punishment to any child placed with them.

  35    These regulations came into force contemporaneously with a number of other regulations made under the Children Act 1989, notably:

Arrangements for Placement of Children (General) Regulations 1991;

Placement of Children with Parents etc Regulations 1991;

Disqualification for Caring for Children Regulations 1991.

Registration and inspection of independent schools

  36    The legislative framework governing the registration and inspection of independent schools remained substantially unchanged throughout the period of our review. An independent school was defined by the Education Act 1944 (and now by the Education Act 1996) as an establishment where full time education is provided for five or more pupils of compulsory school age and which is neither maintained by a local education authority nor a non-maintained special school nor a grant maintained school. Independent schools account for three per cent of all schools in Wales and they must be registered by the Secretary of State for Wales. The process of registration is governed by the Education (Particulars of Independent Schools) Regulations 1982, as amended in 1994, and it is an offence to conduct an independent school that has not been registered.

  37    Once certain required information has been provided by the proprietor an applicant school is automatically granted provisional registration pending inspection by HMI. Full registration is only granted on the recommendation of HMI, after one or more inspections. The standards expected for final registration are set out in Welsh Office guidance to proprietors. HMI have to have regard to the suitability of the premises and accommodation, staffing, the curriculum, standards of teaching and welfare arrangements. According to the evidence submitted by the Welsh Office, many independent schools remain provisionally registered for several years.

  38    Some independent schools are specifically approved to take pupils with statements of special educational needs (SEN). Approval as an independent special school can only be granted after or with approval as an independent school. Independent special schools came into existence under the provisions of the Education Act 1981 following the report of the Warnock Committee three years earlier. In place of earlier categories of disability the Act referred to children with learning disabilities and those with special educational needs. Local education authorities were required to assess children and prepare a statement of their special needs where these could not be met by local mainstream schools.

  39    The Education Act 1981 introduced approval and consent procedures for independent special schools and the placement of children in them, which were subsequently embodied in specific regulations in 1991[957]. Section 11(3) of that Act provided that:

"(3)Where a local education authority maintain a statement for a child under section 7 they shall not make arrangements for the provision of education for that child at an independent school unless--

(a)the school is for the time being approved by the Secretary of State as suitable for the admission of children for whom statements are maintained under section 7; or

(b)the Secretary of State consents to the child being there."

   Thus, if an independent school was refused approval by the Secretary of State under section 11(a), the Secretary of State could still consent under section 11(b) to the placement of a specific child there by a local education authority. Moreover, a Social Services Department could place an SEN child at an unapproved independent school without the Secretary of State's consent if the placement was wholly funded by the Social Services Department. However, the Children Act 1989 introduced provisions to ensure the exchange of information between Education and Social Services Departments and central government guidance encourages close collaboration between them before the placement in a school of an SEN child who is looked after by the local authority[958]. In January 1996 110 children with SEN statements provided by Welsh local education authorities were placed in independent schools.

  40    Until 1993 schools were inspected by HMIs who were part of the Welsh Office. In 1992 a separate government department, the Office of Her Majesty's Chief Inspector in Wales (OHMCI(Wales)) was established. Independent schools with SEN approval under section 11(3)(a) of the Act of 1981 are now inspected by OHMCI(Wales) registered inspectors under a five year cycle of inspections prescribed by the Chief Inspector for Wales under section 9(2) of the Education (Schools) Act 1992. In addition to these full inspections, independent special schools are subject to annual visits, except in years when a full inspection takes place. For other independent schools the Secretary of State requires an annual visit by registered inspectors to all those that are provisionally registered whereas fully registered schools are visited by HMIs once in every four or five years (at the rate of ten per year).

  41    There are various provisions enabling the Secretary of State to remove an independent school from the register. It may be removed if the number of children on the roll falls below five and there is a clear intention by the proprietor to discontinue the school or if the proprietor, a teacher or other member of staff is on the Department of Education's List 99. Otherwise, the Secretary of State has had power since the Education Act 1944 to serve a Notice of Complaint specifying his full grounds of concern and the measures considered necessary to remedy them within a specified timescale of not less than six months. If the notice is not complied with, the school may be struck off the register, subject to a right of appeal to an Independent Schools Tribunal[959].

  42    We have referred at paragraph 19 to the introduction of dual registration (ie as independent schools and children's homes) for independent schools in the Children Act 1989. This Act contains a number of measures designed to promote and safeguard the welfare of children at independent boarding schools, including powers for inspections and action by a Social Services Department and the Secretary of State if there is concern about the welfare of accommodated children. The Act also requires proprietors of independent boarding schools to safeguard and promote children's welfare and the Social Services Department for the area has to take reasonable practicable steps to determine whether the proprietor is complying with this duty. This gives power to Social Services Departments to inspect the welfare provision at all independent schools providing accommodation for children within the definition cited in paragraphs 18 and 19 above. Copies of the reports on such inspections are sent to the Welsh Office Education Department and Social Services Departments have to notify the Secretary of State formally if they are of the opinion that a child's welfare is not being safeguarded.

Statutes and statutory instruments

  43    A list of statutes and statutory instruments relevant to the period and matters under review in this report is at Appendix 7.

Footnotes:

936   Section 1 of the Children Act 1948 and section 2 of the Child Care Act 1980.

937   Section 2 of the Act of 1948 and section 3 of the Act of 1980.

938   Section 1 of the Children and Young Persons Act 1969.

939   Section 2(1)(e) of the Matrimonial Proceedings (Magistrates' Courts) Act 1960, replaced from 1 February 1981 by section 10 of the Domestic Proceedings Magistrates' Court Act 1978; and section 43(1) of the Matrimonial Causes Act 1973.

940   Section 12 of the Children Act 1948.

941   Section 24 of the Children and Young Persons Act 1969.

942   Sections 13 and 14 of the Children Act 1948 as amended and substituted by section 49 of the Children and Young Persons Act 1969.

943   Pursuant to section 14 of the Children Act 1948.

944   Made under section 26 of the Children Act 1989.

945   Section 29.

946   An exception to this was that Regulation 11 of the 1951 regulations governing punishment was replaced by the Children's Homes (Control and Discipline) Regulations 1990 with effect from 19 February 1990.

947   Regulation 3(1).

948   Regulation 1.

949   Under (now) section 347 of the Education Act 1996 (originally section 11 of the Education Act 1981) as a school catering for "statemented" pupils with special educational needs.

950   It was banned in state schools from 1987 by section 47 of the Education (No 2) Act 1986.

951   Section 25(1) of the Criminal Justice Act 1982 and Sch 2 para 50 of the Health and Social Services and Social Security Adjudications Act 1983.

952   At para 4 of Annex B to Welsh Office Circular 63/83.

953   Under section 58 of the Children and Young Persons Act 1969 and subsequently section 74 of the Child Care Act 1980.

954   The intention of the provisions in section 24(5) of the Act of 1969 and section 11 of the Act of 1980 has been carried forward and extended by the Children Act 1989.

955   HMSO 1955.

956   cf para 10 of this Appendix.

957   Now the Education (SEN)(Approval of Independent Schools) Regulations 1994.

958   See sections 28 and 85 and Welsh Office Circular 56/94.

959   The relevant provisions are now contained in the Education Act 1996, having been earlier amended in the Children Act 1989.