Citation and Interpretation

1.—(1) This Order may be cited as the Childcare Act 2006 (Commencement No. 5 and Savings and Transitional Provisions) Order 2008.

(2) In this Order—

“the 1989 Act” means the Children Act 1989(2),

“the 2006 Act” means the Childcare Act 2006,

“the Common Provisions Regulations” means the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008(3),

“the Disqualification Regulations 2005” means the Day Care and Child Minding (Disqualification) (England) Regulations 2005(4),

“the Disqualification Regulations 2007” means the Childcare (Disqualification) Regulations 2007(5),

“the Early Years Register Regulations 2008” means the Childcare (Early Years Register) Regulations 2008(6),

“the Exemption from Registration Order” means the Childcare (Exemption from Registration) Order 2008(7),

“the EYFS Statutory Framework” means the document entitled “Statutory Framework for the Early Years Foundation Stage” published by the Secretary of State in May 2008(8),

“the General Childcare Register Regulations 2008” means the Childcare (General Childcare Register) Regulations 2008(9),

“the Inspection Regulations” means the Day Care and Child Minding (Inspection) (England) Regulations 2005(10),

“the National Standards Regulations” means the Day Care and Child Minding (National Standards) (England) Regulations 2003(11),

“the Suspension Regulations” means the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003(12), and

“the transfer date” means 1st September 2008.

Provisions of the 2006 Act coming into force on 1st September 2008

2.  The following provisions of the 2006 Act come into force on 1st September 2008—

• section 7 (duty to secure prescribed early years provision free of charge), in so far as it is not already in force,

• section 32 (maintenance of the two childcare registers), in so far as it is not already in force,

• section 33 (requirement to register: early years childminders), in so far as it is not already in force,

• section 34 (requirement to register: other early years providers), in so far as it is not already in force,

• section 35 (applications for registration: early years childminders), in so far as it is not already in force,

• section 36 (applications for registration: other early years providers), in so far as it is not already in force,

• section 37 (entry on the register and certificates), in so far as it is not already in force,

• section 38 (conditions on registration),

• section 40 (duty to implement Early Years Foundation Stage),

• section 47 (independent schools),

• section 49 (inspections), in so far as it is not already in force,

• section 50 (report of inspections), in so far as it is not already in force(13),

• section 52 (requirement to register: later years childminders for children under eight), in so far as it is not already in force,

• section 53 (requirement to register: other later years providers for children under eight), in so far as it is not already in force,

• section 54 (applications for registration: later years childminders), in so far as it is not already in force,

• section 55 (applications for registration: other later years providers), in so far as it is not already in force,

• section 56 (entry on the register and certificates), in so far as it is not already in force,

• section 57 (special procedure for registered early years providers),

• section 58 (conditions on registration),

• section 59 (regulations governing activities), in so far as it is not already in force,

• section 60 (inspections), in so far as it is not already in force,

• section 61 (report of inspections), in so far as it is not already in force(14),

• section 62(1)(b) (applications for registration on the general register: childminders), in so far as it is not already in force,

• section 63(1)(b) (applications for registration on the general register: other childcare providers), in so far as it is not already in force

• section 65 (special procedure for persons already registered),

• section 76 (consequences of disqualification),

• section 92 (combined certificates of registration), in so far as it is not already in force,

• section 95 (certain institutions not to be regarded as schools),

• paragraphs 1, 2(2) and (4), and 3 to 16 of Schedule 1 (and section 48 in so far as it relates to those paragraphs),

• paragraphs 5 to 17, 18(1) to (4), (5)(a), (6) and (7), 25, 26, 29(b) and (c), 30, 33, 35, 36, 41 and 44 of Schedule 2 (and section 103(1) in so far as it relates to those paragraphs),

• in relation to England, paragraphs 18(5)(b) and (c), 20 to 24, 27 and 34 of Schedule 2 (and section 103(1) in so far as it relates to those paragraphs),

• Parts 1 and 2 of Schedule 3 (and section 103(2) in so far as it relates to those Parts), to the extent that those Parts have not yet been brought into force in relation to England.

3.  Schedule 1 to this Order has effect for the purposes of making general savings in relation to the provisions brought into force by this Order.

4.  Schedule 2 to this Order has effect for the purposes of making saving and transitional provisions in connection with the commencement by this Order of—

(a)provisions which amend or repeal provisions of Part 10A of, and Schedule 9A to, the 1989 Act; and

(b)Part 3 of the 2006 Act for all remaining purposes.

SCHEDULE 1General Savings

General savings for things done before the transfer date

1.—(1) Subject to Schedule 2, this Order shall not affect—

(a)any act done, any notice served, any application made or any decision taken; or

(b)any requirement or limitation of time; or

(c)any legal proceedings commenced; or

(d)any order made by a Court

under, or in relation to any of the provisions amended or repealed as a consequence of the commencement of Schedule 1, 2 or 3 to the 2006 Act.

(2) In relation to the provisions amended or repealed as a consequence of the commencement of Schedule 1, 2 or 3 of the 2006 Act, legal proceedings may be brought or continued and remedies or penalties may be imposed and enforced in relation to acts done under, in relation to, or in contravention of any of those provisions before the transfer date, as if the amendments or repeals had not been made.

SCHEDULE 2Saving and transitional provisions in respect of Part 10A of, and Schedule 9A to, the 1989 Act, and Part 3 of the 2006 Act

PART 1Registration on 1st September 2008

Child minders registered under Part 10A of the 1989 Act

1.—(1) Subject to paragraphs 2 and 3, this paragraph applies in respect of a person who, immediately before the transfer date, is registered as a child minder by the Chief Inspector(15) under section 79F(1) (grant or refusal of registration) of the 1989 Act.

(2) On the transfer date, the Chief Inspector must register the person as a childminder under section 64(1)(16) (entry on the register and certificates) of the 2006 Act.

(3) On the transfer date, the Chief Inspector must register the person as an early years childminder under section 37(1)(17) of the 2006 Act if immediately before that date the person is authorised(18) to provide child minding for children aged five and under.

(4) On the transfer date, the Chief Inspector must register the person as a later years childminder under section 56(1)(19) of the 2006 Act if immediately before that date the person is authorised to provide child minding for children aged six and over.

(5) Subject to paragraph 24, this paragraph applies even though immediately before the transfer date the person’s registration is suspended by the Chief Inspector under regulation 3 of the Suspension Regulations.

Child minders registered under Part 10A of the 1989 Act: exceptions

2.—(1) Paragraph 1 does not apply in respect of the following persons—

(a)a person who has not provided child minding at any time during the period of three years ending on the transfer date;

(b)a person to whom, by virtue of the Exemption from Registration Order, section 33(1) of the 2006 Act does not apply;

(c)a person to whom, by virtue of the Exemption from Registration Order, section 52(1) of the 2006 Act does not apply.

(2) Sub-paragraph (2) of paragraph 1 does not apply in respect of a person who, before the transfer date, has communicated to the Chief Inspector the wish not to be registered as a childminder under section 64(1) of the 2006 Act.

(3) Sub-paragraph (3) of paragraph 1 does not apply in respect of a person who, before the transfer date, has communicated to the Chief Inspector the wish not to be registered as an early years childminder under section 37(1) of the 2006 Act.

(4) Sub-paragraph (4) of paragraph 1 does not apply in respect of a person who, before the transfer date, has communicated to the Chief Inspector the wish not to be registered as a later years childminder under section 56(1) of the 2006 Act.

3.  The Chief Inspector may, on the transfer date, register a person referred to in paragraph 2(1)(b) or (c) as a childminder under section 64(1) of the 2006 Act if the child minder has not given notice to the Chief Inspector of the wish not to be so registered.

Day care providers registered under Part 10A of the 1989 Act

4.—(1) Subject to paragraphs 5 and 6, this paragraph applies in respect of a person who, immediately before the transfer date, is registered by the Chief Inspector as a day care provider under section 79F(2) of the 1989 Act.

(2) On the transfer date, the Chief Inspector must register the person as a provider of childcare other than a childminder under section 64(2)(20) of the 2006 Act in respect of the premises to which the registration under section 79F(2) of the 1989 Act relates.

(3) On the transfer date, the Chief Inspector must register the person as an early years provider under section 37(2)(21) of the 2006 Act, in respect of the premises to which the registration under section 79F(2) of the 1989 Act relates, if the person is authorised to provide day care for children aged five and under.

(4) On the transfer date, the Chief Inspector must register the person as a later years provider other than a childminder under section 56(2)(22) of the 2006 Act, in respect of the premises to which the registration under section 79F(2) of the 1989 Act relates, if the person is authorised to provide day care for children aged six and over.

(5) Subject to paragraph 24, this paragraph applies even though, immediately before the transfer date, the person’s registration is suspended by the Chief Inspector under regulation 3 of the Suspension Regulations.

Day care providers registered under Part 10A of the 1989 Act: exceptions

5.—(1) Paragraph 4 does not apply in respect of the following persons—

(a)a person to whom, by virtue of the Exemption from Registration Order, section 34(1) of the 2006 Act does not apply;

(b)a person to whom, by virtue of the Exemption from Registration Order, section 53(1) of the 2006 Act does not apply.

(2) Paragraph 4(2) does not apply in respect of—

(a)a person who is registered as a day care provider under section 79F(2) of the 1989 Act to whom section 63(3)(23) of the 2006 Act applies; or

(b)a person who, before the transfer date, has communicated to the Chief Inspector the wish not to be registered as a provider of childcare other than a childminder under section 64(2) of the 2006 Act.

(3) Sub-paragraph (3) of paragraph 4 does not apply in respect of—

(a)a person to whom section 34(2)(24) of the 2006 Act applies; or

(b)a person who before the transfer date, has communicated to the Chief Inspector the wish not to be registered as an early years provider other than a childminder under section 37(2) of the 2006 Act.

(4) Sub-paragraph (4) of paragraph 4 does not apply in respect of—

(a)a person who to whom section 53(2)(25) of the 2006 Act applies; or

(b)a person who, before the transfer date, has communicated to the Chief Inspector the wish not to be registered as a later years provider other than a childminder under section 56(2) of the 2006 Act.

6.  The Chief Inspector may register a person referred to in paragraph 5(1)(a) or (b) on the transfer date as a provider of childcare other than a childminder under section 64(2) of the 2006 Act, in respect of the premises in question, if the day care provider has not communicated to the Chief Inspector the wish not to be so registered.

Arrangements in respect of specified early years providers

7.—(1) This paragraph applies where immediately before the transfer date—

(a)child minding is provided on domestic premises in circumstances in which, if it were to be provided on or after that date, it would not be early years childminding by virtue of section 96(5) of the 2006 Act(26); and

(b)the persons providing the child minding are all registered under section 79F(1) of the 1989 Act.

(2) If, before the transfer date, the Chief Inspector is given notice of the provision referred to in sub-paragraph (1), and the conditions in sub-paragraphs (6) and (7) are met, the Chief Inspector must register the person referred to in sub-paragraph (6)(a) as follows—

(a)as an early years provider other than a childminder under section 37(2) of the 2006 Act, in respect of the premises in question; and

(b)as a provider of childcare other than a childminder under section 64(2) of the 2006 Act, in respect of the premises in question.

(3) Where the conditions in sub-paragraphs (6) and (7) are complied with before the transfer date, the Chief Inspector must register the person referred to in sub-paragraph (6)(a) on that date in respect of the provision referred to in sub-paragraph (1), as provided for in sub-paragraph (2)(a) and (b).

(4) Where the conditions in sub-paragraphs (6) and (7) are not complied with until after the transfer date, the Chief Inspector must register the person referred to in sub-paragraph (6)(a) in respect of the provision referred to in sub-paragraph (1), as provided for in sub-paragraph (2)(a) and (b) as soon as is practicable, and that person shall, for the purposes of regulation 3A of the Early Years Foundation Stage (Welfare Requirements) Regulations 2007(27), be treated as having been so registered on the transfer date.

(5) Where notice has been given in accordance with sub-paragraph (2) but the conditions in sub-paragraphs (6) and (7) are not complied with before the transfer date, section 33(1) of the 2006 Act does not apply to the provision referred to in sub-paragraph (1) until—

(a)the conditions in sub-paragraphs (6) and (7) are met; or

(b)where those conditions are not met before 1st April 2009, that date.

(6) The conditions are that by no later than 1st April 2009, the Chief Inspector is informed—

(a)of the name and address of the person who is to be registered in accordance with sub-paragraph (2), including whether the person to be registered is an individual, partnership, body corporate or unincorporated association; and

(b)of the full name of the person who will manage(28) the early years provision in pursuance of the registration.

(7) Where the Chief Inspector is informed that the person to be registered is a partnership, body corporate or unincorporated association—

(a)the notice must also include the full name of the person who will be the nominated individual(29); and

(b)that person must be a partner in, or a director, secretary, other officer or member of the governing body of, the body to be registered.

Arrangements in respect of specified later years providers

8.—(1) This paragraph applies where immediately before the transfer date—

(a)child minding is provided on domestic premises in circumstances in which, if it were to be provided on or after that date, it would not be later years childminding by virtue of section 96(9)(30) of the 2006 Act; and

(b)the persons providing the child minding are all registered under section 79F(1) of the 1989 Act.

(2) If, before the transfer date, the Chief Inspector is given notice of the provision referred to in sub-paragraph (1), and the conditions in sub-paragraph (6) and (7) are met, the Chief Inspector must register the person referred to in sub-paragraphs (6)(a) as follows—

(a)as a later years provider other than a childminder under section 56(2) of the 2006 Act, in respect of the premises in question; and

(b)as a provider of childcare other than a childminder under section 64(2) of the 2006 Act, in respect of the premises in question.

(3) Where the conditions in sub-paragraphs (6) and (7) are complied with before the transfer date, the Chief Inspector must register the person referred to in sub-paragraph (6)(a) on that date in respect of the provision referred to in sub-paragraph (1), as provided for in sub-paragraph (2)(a) and (b).

(4) Where the conditions in sub-paragraphs (6) and (7) are not complied with until after the transfer date, the Chief Inspector must register the person referred to in sub-paragraph (6)(a) in respect of the provision referred to in sub-paragraph (1), as provided for in sub-paragraph (2)(a) and (b) as soon as is practicable, and that person shall, for the purposes of paragraph 11(3) of Schedule 3 to the General Childcare Register Regulations 2008(31), be treated as having been so registered on the transfer date.

(5) Where notice has been given in accordance with sub-paragraph (2) but the conditions in sub-paragraphs (6) and (7) are not complied with before the transfer date, section 53(1) of the 2006 Act does not apply to the provision referred to in sub-paragraph (1) until—

(a)the conditions in sub-paragraphs (6) and (7) are met; or

(b)where those conditions are not met before 1st April 2009, that date.

(6) The conditions are that by no later than 1st April 2009, the Chief Inspector is informed—

(a)of the name and address of the person who is to be registered in accordance with sub-paragraph (2), including whether the person to be registered is an individual, partnership, body corporate or unincorporated association; and

(b)of the full name of the person who will manage(32) the childcare provision.

(7) Where the Chief Inspector is informed that the person to be registered is a partnership, body corporate or unincorporated association —

(a)the notice must also include the full name of the person who will be the nominated individual(33); and

(b)that person must be a partner in, or a director, secretary, other officer or member of the governing body of, the body to be registered.

Day care providers registered under Part 10A of the 1989 Act: managers

9.—(1) This paragraph applies in the case of a person who on the transfer date is registered by the Chief Inspector under section 37(2) of the 2006 Act in accordance with this Schedule.

(2) The person who is the “responsible individual”(34) for the purposes of section 79B(4)(b) and (5ZA) of the 1989 Act shall be treated as “the manager” for the purposes of paragraph 6 of Schedule 2 to the Early Years Register Regulations 2008.

10.—(1) This paragraph applies in the case of a person who on the transfer date is registered by the Chief Inspector under section 56(2) of the 2006 Act in accordance with this Schedule.

(2) The person who is the “responsible individual” for the purposes of section 79B(4)(b) and (5ZA) of the 1989 Act shall be treated as “the manager” for the purposes of paragraph 3 of Schedule 2 to the General Childcare Register Regulations 2008.

Day care providers registered under Part 10A of the 1989 Act: nominated individuals where day care is the primary purpose of the organisation

11.—(1) This paragraph applies in the case of a person who—

(a)immediately before the transfer date is registered as a day care provider under section 79F(2) of the 1989 Act;

(b)is a partnership, body corporate or unincorporated association whose primary purpose is the provision of day care; and

(c)is registered by the Chief Inspector under section 37(2) or under section 56(2) of the 2006 Act in accordance with this Schedule.

(2) Where the person is registered under section 37(2) of the 2006 Act, the individual who has been nominated by that person before the transfer date to deal with the Chief Inspector shall be treated as the “nominated individual” for the purposes of paragraph 9 of Schedule 2 to the Early Years Register Regulations 2008, despite the fact that the individual may not be a partner in, or a director, secretary, other officer or member of, the governing body.

(3) Where the person is registered under section 56(2) of the 2006 Act, the individual who has been nominated by that person before the transfer date to deal with the Chief Inspector shall be treated as the “nominated individual” for the purposes of paragraph 6 of Schedule 2 to the General Childcare Register Regulations 2008, despite the fact that the individual may not be a partner in, or a director, secretary, other officer or member of, the governing body.

(4) For the purposes of this paragraph, in the event that an individual has not been nominated by the person before the transfer date to deal with the Chief Inspector, the Chief Inspector may appoint such an individual as the Chief Inspector considers appropriate to be the “nominated individual”.

Day care providers registered under Part 10A of the 1989 Act: nominated individuals where day care is not the primary purpose of the organisation

12.—(1) This paragraph applies in the case of a person who—

(a)immediately before the transfer date is registered as a day care provider under section 79F(2) of the 1989 Act;

(b)is a partnership, body corporate or unincorporated association whose primary purpose is not the provision of day care; and

(c)is registered by the Chief Inspector under section 37(2) or under section 56(2) of the 2006 Act in accordance with this Schedule.

(2) Where the person is registered under section 37(2) of the 2006 Act, the individual who has delegated, direct responsibility for the provision of day care shall be treated as the “nominated individual” for the purposes of paragraph 9 of Schedule 2 to the Early Years Register Regulations 2008, despite the fact that the individual may not be a partner in, or a director, secretary, other officer or member of, the governing body.

(3) Where the person is registered under section 56(2) of the 2006 Act, the individual who has delegated, direct responsibility for the provision of day care shall be treated as the “nominated individual” for the purposes of paragraph 6 of Schedule 2 to the General Childcare Register Regulations 2008, despite the fact that the individual may not be a partner in, or a director, secretary, other officer or member of, the governing body.

(4) For the purposes of this paragraph, the individual who has delegated, direct responsibility for the provision of day care is either—

(a)the individual whose name has been included in the application for registration (in accordance with paragraph 1C of the Schedule to the Child Minding and Day Care (Applications for Registration) (England) Regulations 2001(35)); or

(b)the individual whose name has been provided to the Chief Inspector as having delegated, direct responsibility for the provision of day care in pursuance of paragraph 2(1)(e) of Schedule 2 to the National Standards Regulations(36).

(5) For the purposes of this paragraph, where there is more than one individual who has delegated, direct responsibility for the provision of day care, the Chief Inspector may appoint one of them to be the “nominated individual”.

Certificates of registration

13.—(1) Where a person is registered on the transfer date in accordance with this Schedule, the Chief Inspector must, by no later than 1st February 2010, give to the person a certificate of registration in accordance with section 37, 56, 64 and 92 of the 2006 Act, as the case may be, as if the person had made an application for registration and that application had been granted.

(2) Until such time as a person registered in accordance with this Schedule is given a certificate of registration as provided for by this paragraph, any certificate of registration given to that person by the Chief Inspector in accordance with paragraph 6 of Schedule 9A(37) to the 1989 Act continues to have effect as if it had been given to the person under the 2006 Act.

(3) Sub-paragraph (1) does not apply in the case of a person who is no longer registered under the 2006 Act.

Conditions

14.—(1) Subject to sub-paragraphs (2) to (7), where a person is registered in accordance with this Schedule, a condition imposed by the Chief Inspector under section 79F(3) of the 1989 Act which applied to a person immediately before the transfer date continues to have effect as if it were a condition imposed under section 38(1), 58(1), or 66(1) of the 2006 Act, as the case may be.

(2) In the case of a person who by virtue of paragraph 2(3) is not registered by the Chief Inspector under section 37(1) of the 2006 Act, a condition imposed under the 1989 Act which has the effect of authorising the person to provide child minding for children aged five and under ceases to have effect.

(3) In the case of a person who by virtue of paragraph 5(3)(b) is not registered by the Chief Inspector under section 37(2) of the 2006 Act, a condition imposed under the 1989 Act which has the effect of authorising the person to provide day care for children aged five and under ceases to have effect.

(4) In the case of a person who by virtue of paragraph 2(4) is not registered by the Chief Inspector under section 56(1) of the 2006 Act, a condition imposed under the 1989 Act which has the effect of authorising the person to provide child minding for children aged six and over ceases to have effect.

(5) In the case of a person who by virtue of paragraph 5(4) is not registered by the Chief Inspector under section 56(2) of the 2006 Act, a condition imposed under the 1989 Act which has the effect of authorising the person to provide day care for children aged six and over ceases to have effect.

(6) A condition which—

(a)by virtue of sub-paragraph (1), continues to have effect as if it had been imposed under the 2006 Act;

(b)has the effect of authorising a person to provide care by reference to a child’s age or children’s ages, and

(c)refers to children who are aged five;

is to be treated as a condition imposed in respect of a child who has attained the age set out in sub-paragraph (7).

(7) The age is the age the child attains immediately before 1st September next following the date on which the child attains the age of five(38).

Applications for registration under the 1989 Act: undetermined applications

15.—(1) Where a person has applied for registration as a child minder under section 79E (applications for registration) of the 1989 Act and, immediately before the transfer date, the Chief Inspector has not granted or refused the person’s application, the application shall be determined as if it had been made under section 35 and, as the case may be, section 54 of the 2006 Act.

(2) Where a person has applied for registration as a day care provider under section 79E of the 1989 Act and, immediately before the transfer date, the Chief Inspector has not granted or refused the person’s application, the application shall be determined as if it had been made under section 36 and, as the case may be, section 55 of the 2006 Act.

(3) Where this paragraph applies, the Chief Inspector may only register the person if, had the application been made under the 2006 Act, the Chief Inspector would have been required by section 37 and, as the case may be, section 56 of that Act, to grant the application.

PART 2Notices and Appeals

Notice of intention to refuse an application for registration under section 79L(1)(a)

16.—(1) This paragraph applies where the Chief Inspector has, before the transfer date, sent a notice to a person of intention to refuse an application for registration under section 79L(1)(a)(39) (notice of intention to take steps) of the 1989 Act.

(2) The notice shall, on and after the transfer date, be treated as notice given under section 73(2) (procedure for taking certain steps) of the 2006 Act.

(3) A person who has, before the transfer date, informed the Chief Inspector of the desire to object to the step being taken under section 79L(3) of the 1989 Act, shall be treated as having given notice under section 73(5) of the 2006 Act.

(4) An objection made before the transfer date under section 79L(3) of the 1989 Act to a step being taken shall be treated on and after that date as having been made in pursuance to section 73(5) of the 2006 Act.

(5) A notice sent to a person by the Chief Inspector in accordance with section 79L(5) of the 1989 Act before the transfer date shall be treated on and after that date as being notice given under section 73(7) of the 2006 Act.

(6) Where this paragraph applies, a notice continues to have effect only to the extent that it could have been given under section 73 of the 2006 Act.

Notice of intention to take steps under section 79L(1)(b) to (d) of the 1989 Act

17.—(1) This paragraph applies where—

(a)a person is registered in accordance with this Schedule;

(b)the Chief Inspector has, before the transfer date, sent a notice to the person of intention to take one of the steps mentioned in section 79L(1)(b) to (d)(40) of the 1989 Act; and

(c)that step has not taken effect.

(2) The notice sent to the person under section 79L(1) shall, on and after the transfer date, be treated as being notice given under section 73(2) of the 2006 Act.

(3) A person who has, before the transfer date, informed the Chief Inspector of the desire to object to the step being taken under section 79L(3) of the 1989 Act, shall be treated as having given notice under section 73(5) of the 2006 Act.

(4) An objection made before the transfer date under section 79L(3) of the 1989 Act to a step being taken shall be treated on and after that date as having been made in pursuance to section 73(5) of the 2006 Act.

(5) A notice sent to a person by the Chief Inspector in accordance with section 79L(5) of the 1989 Act before the transfer date shall be treated on and after that date as being notice given under section 73(7) of the 2006 Act.

(6) Where this paragraph applies, a notice continues to have effect only to the extent that it could have been given under section 73 of the 2006 Act.

Appeals against steps mentioned in section 79L(1) of the 1989 Act

18.—(1) This paragraph applies where an appeal has been made before the transfer date to the Tribunal(41) under section 79M(1) of the 1989 Act against a step taken by the Chief Inspector mentioned in section 79L(1), in respect of which the Tribunal has not reached a decision under section 79M(2).

(2) The appeal shall be treated, from the transfer date, as being an appeal under section 74 (appeals) of the 2006 Act.

(3) Where this paragraph applies, an appeal falls to be decided as if the step in respect of which the appeal is brought had been taken under the 2006 Act.

Appeals: Protection of children in an emergency

19.—(1) This paragraph applies where an appeal has been made before the transfer date to the Tribunal under section 79M(1) of the 1989 Act against an order under section 79K (protection of children in an emergency) of the 1989 Act, in respect of which the Tribunal has not reached a decision under section 79M(2).

(2) The appeal shall be treated, from the transfer date, as being an appeal under section 74(3) of the 2006 Act.

Appeals: disqualification

20.—(1) This paragraph applies where an appeal has been made before the transfer date to the Tribunal under section 79M(1) of the 1989 Act against a determination by the Chief Inspector under regulation 9 (waivers) of the Disqualification Regulations 2005, in respect of which the Tribunal has not reached a decision under section 79M(2).

(2) The appeal shall be treated, on and after the transfer date, as being an appeal brought under regulation 9 of the Disqualification Regulations 2007.

Notice under section 79D (requirement to register) of the 1989 Act

21.  Where, before the transfer date, the Chief Inspector has served an enforcement notice under section 79D(2)(42) of the 1989 Act, the notice continues to have effect on and after the transfer date as if it had been served under section 33(4) or 52(4) of the 2006 Act, as the case may be.

Notice under the National Standards Regulations

22.—(1) Subject to sub-paragraph (2), a notice given by the Chief Inspector to a person under regulation 8(1) (notice) of the National Standards Regulations shall be treated, from the transfer date, as having been given under regulation 9 (failure to comply with welfare requirements notice) of the Early Years Foundation Stage (Welfare Requirements) Regulations 2007(43).

(2) The notice shall only continue to have effect as provided in sub-paragraph (1) where a person is registered under section 37(1) or (2) of the 2006 Act by the Chief Inspector in accordance with this Schedule, and to the following extent—

(a)the person in receipt of the notice has failed to meet, or would have failed to meet, the welfare requirements specified in Section 3 of the EYFS Statutory Framework; or

(b)the person in receipt of the notice has failed to have regard to, or would have failed to have regard to, the guidance in Section 3 of the EYFS Statutory Framework.

PART 3Other saving and transitional provisions in respect of the 1989 Act

Section 79C of the 1989 Act and the National Standards Regulations

23.  Despite the amendment made to section 79C(44) of the 1989 Act, in exercising functions under Part 3 of the 2006 Act, the Chief Inspector may have regard to—

(a)anything done, or alleged to have been done, by a person registered under Part 10A of the 1989 Act to comply with the duty imposed by regulation 4(2) of the National Standards Regulations; and

(b)any failure, or alleged failure, by a person registered under Part 10A of the 1989 Act, to comply with the duty imposed by regulation 4(2) of the National Standards Regulations.

Suspension

24.—(1) This paragraph applies where immediately before the transfer date a person’s registration is suspended by the Chief Inspector under regulation 3 (power to suspend registration) of the Suspension Regulations.

(2) The person’s registration is, on the transfer date, treated as suspended by the Chief Inspector under regulation 8 (suspension of registration) of the Common Provisions Regulations.

(3) Where a person has appealed to the Tribunal under regulation 8 (rights of appeal) of the Suspension Regulations and the Tribunal has not reached a decision, the appeal shall, on and after the transfer date, be treated as having been made under regulation 12(1) (appeal against suspension) of the Common Provisions Regulations.

(4) Nothing in this paragraph shall affect the period or periods of time for which a person’s registration may be suspended.

Disqualification: waivers

25.—(1) Where the Chief Inspector has given consent to waive a disqualification under regulation 9 (waivers) of the Disqualification Regulations 2005 (and has not withdrawn that consent), the consent continues to have effect as if it had been given under regulation 8 (waivers) of the Disqualification Regulations 2007.

(2) Where—

(a)a person has requested that the Chief Inspector give consent to waive a disqualification under regulation 9 of the Disqualification Regulations 2005; and

(b)immediately before the transfer date, the Chief Inspector has not made a determination in respect of the request,

the Chief Inspector must make a determination in respect of the request as if it had been made under regulation 8 of the Disqualification Regulations 2007.

(3) A consent given by a local authority under regulation 9(4) of the Disqualification Regulations 2005 continues to have effect.

Protection of children in an emergency

26.  Where the Chief Inspector has applied to a justice of the peace for an order under section 79K of the 1989 Act and, immediately before the transfer date, the justice of the peace has not made the order, the application shall, from that date, be treated as having been made under section 72 of the 2006 Act.

Inspections

27.—(1) Where—

(a)the Chief Inspector has conducted an inspection under section 79Q of the 1989 Act; and

(b)immediately before the transfer date, has not reported in writing on the matters mentioned in subsection (6)(a) to (d) of that section,

the Chief Inspector must report in accordance with that section.

(2) Section 79R(3) of the 1989 Act continues to have effect in respect of a copy of a report on an inspection made under section 79Q before the transfer date.

(3) Section 79R(3A) of the 1989 Act and regulations 5 and 6(45) of the Inspection Regulations continue to have effect in respect of an inspection under section 79Q before the transfer date.

EXPLANATORY NOTE

(This note is not part of the Order)

This is the sixth Commencement Order (“the Order”) made under the Childcare Act 2006 (“the 2006 Act”), and the fifth Commencement Order to bring provisions of the 2006 Act into force in relation to England.

Article 2 brings provisions in Parts 1 (general functions of local authority: England) and 3 (regulation of provision of childcare in England) of, and Schedules 1 (amendments relating to the curriculum), 2 (minor and consequential amendments) and 3 (repeals) to, the 2006 Act into force on 1st September 2008.

In Part 1 of the 2006 Act, section 7 is brought fully into force. This section puts an English local authority under a duty to secure that early years provision of a prescribed description is available free of charge for prescribed periods, for children who are under compulsory school age but have attained a prescribed age. The Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2008 (S.I. 2008/1724) prescribe these matters, and come into force on 1st September 2008.

In Chapter 1 of Part 3 of the 2006 Act, section 32 is brought fully into force. This section puts Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (“the Chief Inspector”) under a duty to maintain two registers. The first of these is “the early years register” (“EYR”), a register for the compulsory registration of certain childcare provided for children from birth up to 1st September following their fifth birthday. The second of these is “the general childcare register” (“GCR”), which is in two parts; Part A is for the compulsory registration of providers of certain childcare for children from the 1st September following their fifth birthday up to the age of 8, and Part B is for the voluntary registration of providers who are not required to be registered in the EYR or in Part A of the register.

Chapters 2 (regulation of early years provision), 3 (regulation of later years provision for children under 8), 4 (voluntary registration) and 5 (common provisions) of Part 3 of the 2006 Act are brought fully into force on 1st September 2008. Accordingly, both registers are brought fully into force on 1st September 2008 (Part B of the GCR came into force on 6th April 2007, subject to transitional provisions).

The Childcare (Early Years Register) Regulations 2008 (S.I. 2008/974), the Childcare (General Childcare Register) Regulations 2008 (S.I. 2008/975) and the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 (S.I. 2008/976) make provision about the two registers, and come into force on 1st September 2008.

The Childcare (Exemptions from Registration) Order 2008 (S.I. 2008/979) specifies circumstances in which the provision of childcare does not attract the requirement for registration in the EYR or Part A of the GCR. The Childcare (Fees) Regulations 2008 (S.I. 2008/1804) make provision about fees payable by providers of childcare who are registered in either the EYR, Part A of the GCR or Part B of the GCR. The Childcare (Inspections) Regulations 2008 (S.I. 2008/1729) make provision about inspections of early years provision and later years provision provided by people registered on the EYR or Part A of the GCR. All of these instruments come into force on 1st September 2008.

In particular, persons who are registered on the EYR are required, from 1st September 2008, to implement the Early Years Foundation Stage (“EYFS”). The EYFS is made up of welfare requirements and learning and development requirements, which are contained in the “Statutory Framework for the Early Years Foundation Stage” document published by the Secretary of State in May 2008. This document was given legal effect by the Early Years Foundation Stage (Welfare Requirements) Regulations 2007 (S.I. 2007/1771), as amended by the Early Years Foundation Stage (Welfare Requirements) (Amendment) Regulations 2008 (S.I. 2008/1953); and by the Early Years Foundation Stage (Learning and Development Requirements) Order 2007 (S.I. 2007/1772), as amended by the Early Years Foundation Stage (Learning and Development Requirements) (Amendment) Order 2008 (S.I. 2008/1952).

Article 3 of, and Schedule 1 to, the Order make general savings. In particular, provision is made to ensure that legal proceedings in respect of the amended legislation (including any proceedings under or in relation to Part 10A of the Children Act 1989 (“the 1989 Act”)) are unaffected.

Article 4 of, and Schedule 2 to, the Order make saving and transitional provisions as a consequence of the coming into force of provisions in Part 3 of the 2006 Act, and associated amendments to the 1989 Act made by Schedules 2 and 3.

Part 1 of Schedule 2 makes provision in respect of persons who are registered as child minders under Part 10A of the 1989 Act. Paragraph 1 of Schedule 2 requires the Chief Inspector to register them as childminders under the 2006 Act. The particular register they are placed on will depend on the ages of children for whom persons are authorised to provide child minding. In practice, conditions imposed by the Chief Inspector on a person’s registration will authorise a person to provide child minding for children of specified ages. Paragraphs 2 and 3 make exceptions. In particular, the Chief Inspector is not required to register persons who have not provided child minding in the three years immediately preceding 1st September 2008, or persons who have asked not to be registered under the EYR or GCR. The Chief Inspector is not required to register persons who are exempt from registration under the 2006 Act.

Paragraphs 4, 5 and 6 make similar provision in respect of persons who are registered as day care providers under Part 10A of the 1989 Act. The Chief Inspector is not required to register persons who are registered as day care providers under the 1989 Act who are exempt from registration under the 2006 Act, persons who have requested that they are not registered on the EYR or the GCR, or schools that are providing childcare that is not required to be registered under the 2006 Act.

Paragraphs 7 and 8 make special arrangements in respect of persons who are registered as child minders under the 1989 Act but whose provision, by virtue of section 96(5) or (9) of the 2006 Act, would not be early years childminding or later years childminding. Section 96(5) of the 2006 Act provides that early years provision on domestic premises for reward is not early years childminding if at any time the number of persons providing the early years provision on the premises or assisting with the provision exceeds three. Section 96(9) makes the same provision in respect of later years childminding. Paragraphs 7 and 8 provide for a procedure whereby persons affected by section 96(5) or (9) may become registered as an early years provider other than a childminder or as a later years provider other than a childminder.

Paragraphs 9 and 10 make provision in respect of persons who are “responsible individuals” under the 1989 Act. Under the 2006 Act, these persons will be treated as “managers”.

Paragraph 14 makes provision in respect of conditions. With certain specified exceptions, conditions imposed on persons registered under the 1989 Act continue to have effect as if they had been imposed under the 2006 Act.

Paragraph 15 makes provision in respect of applications for registration under the 1989 Act which, on 1st September 2008, the Chief Inspector has not refused or granted. Such applications are to be treated as if they had been made under the 2006 Act.

Part 2 of Schedule 2 makes provision in respect of notices sent and appeals brought under Part 10A of the 1989 Act. Specifically, provision is made to ensure that, after 1st September 2008, a notice sent to a person under the 1989 Act is to be treated as if it were a notice given under the 2006 Act. This provision affects notices given by the Chief Inspector in respect of the steps mentioned in section 79L(1) of the 1989 Act: a refusal of an application for registration, a cancellation of a registration, a removal or variation of a condition of registration, the imposition of a new condition, and a refusal to grant an application for the removal or variation of a condition.

Ongoing appeals under the 1989 Act are to be treated as if they were appeals brought under the 2006 Act. This affects appeals against the steps mentioned in section 79L(1) of the 1989 Act, and also appeals against an order made by a justice of the peace under section 79K of the 1989 Act, in respect of a child who is at risk of significant harm; and also appeals against a determination by the Chief Inspector as to whether to give consent under the Day Care and Child Minding (Disqualification) (England) Regulations 2005 (S.I. 2005/2296) to waive a person’s disqualification from registration.

Part 3 of Schedule 2 makes other saving and transitional provisions in respect of the 1989 Act (and instruments made under it). In particular, paragraph 23 makes provision to ensure that the Chief Inspector may continue to take into account a person’s compliance (or otherwise) with the requirements of the Day Care and Child Minding (National Standards) (England) Regulations 2003 when exercising functions under Part 3 of the 2006 Act. Paragraph 24 makes provision to ensure that persons who are suspended immediately before 1st September 2008 are suspended under the 2006 Act. Paragraph 25 makes provision to ensure that persons whose disqualification from registration under the 1989 Act had been waived continue to have their disqualification from registration waived under the 2006 Act. Paragraph 26 makes provision in respect of any application by the Chief Inspector to a justice of the peace to protect a child in an emergency. Paragraph 27 makes provision to ensure that if the Chief Inspector has inspected a registered person under the 1989 Act before 1st September 2008, but has not yet issued a report, the report may be issued under the 1989 Act.

No impact assessment has been prepared for this Order because no additional impact on business, charities, voluntary bodies or the public sector is foreseen. However, impact assessments have, where appropriate, been carried out in respect of the other instruments made under the 2006 Act referred to in this Order.

NOTE AS TO EARLIER COMMENCEMENT ORDERS

(This note is not part of the Order)

The following provisions of the 2006 Act have been brought into force in relation to England by commencement order made before the date of this Order: