Regulation of child-minding and day care for children under twelve

Regulation of child-minding and day care for children under twelve

Part II of the Children and Families (Wales) Measure 2010 (“the Measure”) sets out the system for regulating child minding and day care services in Wales. The Welsh Ministers have the function of regulating and inspecting child minding and day care services in Wales. The Welsh Ministers functions in this respect are exercised by the Care Inspectorate Wales (CIW).

The meaning of child minding and day care

A person acts as a child minder if the person looks after one or more children under the age of twelve on domestic premises for reward (section 19(2)).

A person provides day care for children if the person provides care at any time for children under the age of twelve on premises other than domestic premises (section 19(3)).

A domestic premises is defined for this purpose as a premises wholly or mainly used as a private dwelling.

The Child Minding and Day Care Exceptions (Wales) Order 2010 sets out the exceptions to registration as child minders or day care providers.

Registration

Part II of the Measure makes provision for registration and the registration procedure. Any person who provides child minding or day care must be registered to do so.

A person wishing to be registered under Part II must submit an application for registration in accordance with section 24 in respect of child minders and section 26 in respect of day care providers and Child Minding and Day Care (Wales) Regulations 2010 (“the Regulations”).

Child minders

An application for registration as a child minder must satisfy the requirements of section 24(2) of the Measure. If the registration authority, CIW, is satisfied that the applicant is not disqualified from registration and the prescribed requirements of the Regulations are satisfied and are likely to continue to be satisfied then it must grant the application, otherwise it must refuse it.

Day care providers

An individual or organisation can apply for registration as a Day Care provider. An organisation can be either an incorporated or unincorporated association.

Section 26 of the Measure sets out the test for granting or refusing an application to register.  If the registration authority, CIW, is satisfied that the applicant is not disqualified from registration and the requirements of the Regulations are satisfied and are likely to continue to be satisfied then it must grant the application, otherwise it must refuse it.

In any case where an application for registration is granted, the registration authority must issue a certificate of registration to the applicant (section 28). Registration may be granted either unconditionally or subject to such conditions as the registration authority thinks fit (section 29).

If the registration authority proposes to refuse the application for registration, it must provide a notice of intention to refuse the application (section 36).

In addition to having powers to refuse or grant applications, the registration authority can vary, remove or impose any condition upon a person’s registration at any time after first registration.

Similarly a registered person can take action in respect of their own registration and can apply to:

  • vary or remove any conditions in force in respect of their registration, voluntarily cancel their registration,
  • voluntarily suspend their registration, or
  • cancel or vary the period of any suspension.

Enforcement

The Welsh Ministers have a range of civil enforcement powers which can be summarised as follows:

  • Refusal of registration – section 24 in respect of child minders and section 26 day care providers
  • Grant of registration subject to conditions not previously agreed – section 29
  • Variation, removal or imposition of conditions – section 29
  • Cancellation of registration – section 31
  • Suspension of registration – Regulation 40 of the Regulations 
  • Urgent cancellation of registration – section 34
  • Urgent variation, removal or imposition of conditions – section 35

In the case of non-urgent action CIW must issue a Notice of Intention informing the person concerned of their intention to take the following steps (section 36):

  • refuse an application for registration;
  • impose a new condition on a person's registration;
  • vary or remove any condition imposed on a person's registration;
  • refuse to grant an application for the variation or removal of any such condition;
  • cancel a person's registration

The Notice of Intention must set out CIW’s reasons for taking the step and inform the person concerned of their rights under section 36.

CIW may not take the step set out in the Notice until 28 days have elapsed since it was issued. The recipient may object to the step being taken and is entitled to make representations either orally or in writing.

If CIW decide to take the step (regardless of whether the recipient objected) they must inform the recipient in a Notice of Decision. In the following scenarios the decision will not take effect until the timescale for an appeal has elapsed or, if an appeal is brought, the time when the appeal is determined:

  • impose a new condition on a person's registration;
  • vary or remove any condition imposed on a person's registration;
  • cancel a person's registration

However, a decision can take effect prior to this if a person informs CIW that they do not intend to appeal.

Section 37 of the Measure provides the right for an applicant/registered person to appeal any decisions to the First-tier tribunal.

There is provision to enable the registration authority to urgently cancel a child minding or day care service. In such cases a Notice of Intention does not have to be issued. An application for urgent cancellation must be made to the Family Court.  If an order is made it takes effect immediately and the service which has been cancelled must cease operating. The right of appeal in section 37 applies to such decisions.

There is also provision which enables the registration authority to urgently vary or remove the imposition of a condition. The process for taking this action is to issue a notice of decision which takes effect immediately. The right of appeal in section 37 applies to decisions to vary or remove the imposition of a condition.

Regulations 40 to 45 set out the provisions in relation to suspension of child minders and day care providers. The process for taking this action is to issue a notice of decision which takes effect immediately.  Where the threshold for suspension is met, CIW has the power to suspend for a period of 6 weeks. This suspension can be extended for further periods of 6 weeks. A period of suspension (on the same grounds) must not extend beyond 12 weeks in a 12 month period, unless certain requirements are met. A person can request that their suspension is lifted at any time by writing to the regional office that issued the suspension Notice. Regulation 45 provides a right of appeal against a decision to suspend or a refusal to lift suspension when requested to do so.

Inspection functions

The Welsh Ministers have a range of inspection powers (see sections 41 to 43 of the Measure) in relation to their function as a registration authority in respect of child minders or day care providers.

They include, for example, the power of entry and inspection of premises and the power to seize and remove documents and material if it may be evidence of failure to comply with conditions or requirements imposed on the service provider.

In certain circumstances CIW may apply to the Court for a warrant authorising any constable to assist in CIW exercising their inspection powers (section 43).

Offences

The Measure also provides for a range of criminal offences in connection with child minding and day care services.

  • Acting as a child minder in contravention of an enforcement notice – section 21(5)
  • Providing day care without being registered to do so – section 23(1)
  • Failing to comply with a condition of registration – section 29(4)
  • Failing to comply with any requirement of the Regulations – section 30(4)
  • Acting as a child minder whilst suspended – section 32(5)
  • Providing day care whilst suspended – section 32(6)
  • Obstructing a person exercising their powers under sections 41 or 42 – section 42(7)(a)
  • Failing to comply with any requirement imposed under section 42 – section 42(7)(b)
  • Knowingly making a false or misleading statement in an application for registration – section 46(1)
  • Acting as a child minder whilst disqualified from registration – section 39 (3)
  • Providing day care or being directly concerned in the management of day care, or having a financial interest in the provision of day care whilst disqualified from registration –  section 39 (3)
  • Employing a person in connection with the provision of day care who is disqualified from registration - section 39(3)

All of the above offences are summary offences only.  The penalties are either a fine not exceeding level 5 on the standard scale, or imprisonment for a term not exceeding 51 weeks.