EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION

1. This Explanatory and Financial Memorandum relates to the Protection of Children and Vulnerable Adults Bill. It has been prepared by the Department of Health, Social Services and Public Safety (hereafter referred to as the Department) in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
2. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require explanation or comment, none is given.

BACKGROUND AND POLICY OBJECTIVES

3. The Bill is intended to strengthen existing arrangements, known as the Pre-Employment Consultancy Service (PECS), under which checks are carried out as to the suitability of those seeking work with children or adults with a learning disability. In broad terms the Bill would provide an equivalent to the Protection of Children Act 1999 and Part VII of the Care Standards Act 2000 in England and Wales (the latter relates to protection for vulnerable adults).
4. The Programme for Government indicated the Executive's intention to introduce legislation which would put PECS on a statutory footing in line with the Protection of Children Act 1999. It is intended that the legislation, by creating a system of disqualifications and offences, will play a part, alongside other measures, in improving the protection of children and vulnerable adults. Given the intention to include an appeals mechanism for individuals disqualified from working with children or vulnerable adults, it is thought that the legislation will also safeguard the rights of those individuals.
5. PECS was established in 1981, following the inquiry into Children's Homes and Hostels occasioned by cases of abuse at Kincora Boys' Hostel. The current system allows employers to check the suitability of those applying to work with children, or adults with a learning disability. PECS is operated by the Department and was designed so that, on the basis of information provided about those seeking to work with children or adults with a learning disability, a series of checks could be carried out.
6. Alongside a check of criminal records, checks are also carried out against the PECS Register which is maintained by the Department, the Department of Health Consultancy Index (the broad equivalent to the PECS Register in England and Wales, now known as the Protection of Children Act list) and records held in relation to those prohibited from working in schools. The PECS Register is compiled from information provided by voluntary and statutory organisations in relation to workers (paid employees and volunteers) who have been dismissed, transferred to other work, or who have resigned in circumstances where it is considered that they posed a risk to children or adults with learning disabilities. Referrals for names to be included come from employers, including voluntary organisations and HSS Trusts. As the nature of the information held on the PECS Register is sensitive, all organisations making referrals or requesting checks must be approved by the Department to avoid misuse of the system.
7. Any decision to add an individual's name to the PECS Register is made by the Department in consultation with the Social Services Inspectorate. Any person referred is told about the referral and given an opportunity to make representations to the Department as to why his or her name should not be added to the Register. Where a decision is made to add a person's name to the Register, he or she is informed.
8. Where the Department receives a request for a check to be carried out and the individual's name is found to be on the Register, the prospective employer is advised to obtain a reference from the organisation which made the referral to the Register. Organisations requesting checks are also provided with a copy of the criminal record (if any) of the person concerned. The PECS system does not prohibit a person from working with children or adults with a learning disability. In the case of a person whose name appears on the PECS Register, it is left to the prospective employer to consult the organisation which made the referral. The decision to employ an applicant remains a matter for the prospective employer.

THE NEW PROPOSALS

Children

9. The proposed Bill will place the PECS Register on a statutory basis. It will impose duties on child care organisations to carry out checks on prospective employees. These checks will be carried out against new statutory lists of those deemed unsuitable to work with children, which are held by the Department and the Department of Education. Child care organisations will be required to make referrals to the list held by the Department in specified circumstances. An individual who is included in the new statutory lists of those who are unsuitable to work with children will be disqualified from working with children. An individual who is subject to a disqualification order (a new court order introduced by the Bill which may be imposed in certain cases), or who is included on either of the lists held by the Department or the Department of Education will commit an offence if he works or seeks work in specified positions. It will also be an offence to knowingly offer or procure work in such a position for a disqualified person.
10. As under the existing non-statutory arrangements, it is intended that a decision to place someone's name on the statutory list will be taken by the Department. An individual who is considered guilty of misconduct which harmed a child or placed a child at risk of harm can be referred to the Department in a variety of ways. In some cases the referral will be mandatory. A child care organisation, which has dismissed an individual for misconduct as described above, or has suspended the individual pending dismissal, or has transferred him to another non-child care position within the organisation, will be required to refer that individual to the Department. The requirement to refer will also apply if the individual has resigned, retired or availed of redundancy in circumstances in which the organisation would have considered dismissing him. Other sources of referral include employment/nursing agencies, employment businesses and professional bodies. An individual named in certain enquiries may also be included on the list.
11. An individual who is referred will be informed of the referral and will be afforded the opportunity to make representations as to why his or her name should not be added to the list. Until a final decision is made on whether or not to include an individual on the list, the individual will be placed on a provisional list.

Vulnerable Adults

12. The proposals for vulnerable adults are broadly similar to those for children. Providers of care services, including care homes, domiciliary care agencies and prescribed services within both public and private healthcare settings will be required to refer individuals for inclusion on a list of those deemed unsuitable to work with vulnerable adults held by the Department. The conditions for referral, will be similar to those in relation to those concerning work with children.
13. The list will be separate to that held in relation to children, but it will be possible for a person's name to appear on both lists where it is considered that the individual poses a threat to both vulnerable groups.

Tribunal

14. In order to ensure fairness to those who have been referred, it is proposed that there will be an independent Tribunal which will hear appeals against any decision of the Department to list a person. This would apply both to those who have been referred as posing a risk to children and those who have been referred as posing a risk to vulnerable adults. It will also be possible for an individual to apply to the Tribunal to have his name removed from either or both lists.

Accreditation

15. In relation to organisations working with children, it is proposed to introduce a system of accreditation. Organisations, which will be eligible to apply for accreditation, are those which do not fall within the legal definition of child care organisation. There are many such organisations and groups involved in work with children and the intention is to ensure that they can become accredited as an indication they are applying certain standards as regards child protection. The detailed conditions, which must be satisfied before an organisation can avail of accredited status, will be set out in regulations. In broad terms it is intended that, to achieve accredited status, an organisation will be required to carry out checks of the statutory lists on individuals whom they propose to offer a position. They will also be required to refer individuals whom they consider to have harmed a child or placed a child at risk of harm. It will be possible for an organisation to have its accreditation withdrawn if it does not meet certain standards as regards its child protection arrangements.

Disqualification in other jurisdictions

16. The Bill makes provision for a disqualification or a prohibition from working with children, which has been imposed in another jurisdiction, to apply in Northern Ireland. Such a disqualification or prohibition must be considered by the Department to be comparable to disqualification imposed by the Bill. The intention is to prevent individuals who have been found to be unsuitable to work with children in other jurisdictions from securing employment with children here.

CONSULTATION

17. A consultation document, entitled "Proposals for a Protection of Children and Vulnerable Adults Bill" was issued to a wide range of interested parties in September 2001, with a closing date for comments of 14 December 2001. There were 58 responses received. All responses supported the proposal to place PECS on a statutory basis and to strengthen current arrangements. Whilst PECS already covers adults with a learning disability, the proposal to make provision for other vulnerable adults was generally welcomed.
18. The areas which attracted most comment were the requirement to make referrals for names to be included on the new statutory lists; how the arrangements might be enforced; the requirement to carry out checks; arrangements for appeals against inclusion on the lists; the creation of offences and collaboration with other jurisdictions. A number of other issues, including resource implications and the need for guidance and training also received attention.
19. In relation to the requirements to carry out checks or make referrals, most respondents considered it essential to extend the requirements to all organisations working with children and not just those child care organisations which are regulated in law. It is intended that the establishment of an accreditation scheme will address the issue of those organisations and groups which are not child care organisations.

OPTIONS CONSIDERED

20. It is considered that in order to protect children and vulnerable adults from those who may pose a threat requires current arrangements to be strengthened in ways which cannot be achieved without legislation. The creation of statutory lists of those deemed unsuitable to work with children or vulnerable adults and the creation of offences in relation to those on the lists, is considered essential. The level of protection required can only be achieved through legislation, whilst at the same time the provision of statutory rights of appeal in relation to those listed is considered important in terms of their human rights.

OVERVIEW

21. The Bill has 51 clauses and one Schedule. Part I contains two Chapters. Chapter I includes the creation and maintenance of lists of those deemed unsuitable to work with children, arrangements for checks, referrals, the effect of disqualification from working with children and rights of appeal of those individuals who may be listed. Chapter II includes provisions dealing with offences and disqualifications in relation to work with children. Part II contains broadly equivalent provisions in relation to working with vulnerable adults and Part III deals with the appeal Tribunal and the interpretation of certain terms used in the Bill.

COMMENTARY ON CLAUSES

Clause 1 imposes a duty on the Department of Health, Social Services and Public Safety (the Department) to keep a list of individuals who are considered unsuitable to work with children. A person can only be included on the list in accordance with clauses 2 - 8. The clause also enables the Department to remove a person from the list if it is satisfied that the person should not have been on it in the first place.

Subsection (1) requires child care organisations, and permits other organisations, to refer an individual who has been employed in a child care position to the Department for possible inclusion on the list referred to in clause 1. Subsections (2) and (3) set out the conditions for referrals. Definitions of "child care organisation" and "child care position" are included in clause 18.

Subsection (2) details the conditions which must be fulfilled before an organisation can make a referral. These include circumstances where the organisation has dismissed, transferred or suspended the individual on the grounds of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm. They also include circumstances where the individual has resigned, retired or been made redundant in circumstances where the organisation would have dismissed him, or would have considered dismissing him on the grounds of misconduct resulting in harm or the risk of harm to a child, had the resignation, retirement or redundancy not already taken place.

Subsection (3) sets out an alternative set of conditions which may trigger a referral. It deals with cases where an individual has resigned, retired, been dismissed or has been transferred to a non-child care position where misconduct was not an issue. The subsection provides that, in such cases, where information subsequently comes to the attention of the organisation and it considers that it would have dismissed or considered dismissing the individual as having harmed or placed a child at risk of harm (had the information been available at an earlier stage) a referral may or (in the case of a child care organisation) shall be made.

Subsection (4) sets out that on receipt of a referral to the Department subsections (5) - (7) will apply. It also provides that, where the Department considers that the individual may be placed on the list held under clause 1, it must provisionally list the person pending a final decision.

Subsection (5) provides that the Department will obtain the observations of the individual referred and, where it considers such a course is appropriate, the comments of the referring organisation on the individual's observations. This process will continue until a decision on listing can be reached. In all cases the criteria of subsection (7) must apply.

Subsection (6) requires the Department to confirm the individual's inclusion on the list or remove him from it. Before a final decision can be made the Department must first have considered all available information including the observations of the parties as provided by subsection (5), and any other material which it considers relevant. Where an individual has been suspended or provisionally transferred, the organisation must first have dismissed him or confirmed his transfer before inclusion on the list can be confirmed.

Subsection (7) provides that, before confirming an individual's inclusion on the list held under clause 1, the Department must be of the opinion that the organisation reasonably considered the individual to be guilty of misconduct (whether or not in the course of his employment). The Department must also be of the opinion that the individual is in fact unsuitable to work with children.

Subsection (8) provides for cases where an individual who was suspended or provisionally transferred has resigned, retired or been made redundant prior to a decision to dismiss being taken or confirmation of transfer to a non child care position being given. A referral can be made in these circumstances if the organisation would have dismissed or considered dismissal of the individual.

Subsection (9) indicates that clause 2 does not apply to employment agencies, nursing agencies or employment businesses. Referrals by these bodies are dealt with in clause 3.

Subsection (1) places requirements to make referrals on employment agencies and nursing agencies. The agency must have determined not to do any further business with an individual who has been supplied for work in a child care position by the agency. The agency may alternatively have decided not to find him further employment or supply him for further employment in a child care position. The refusal to do any further business must have been because of misconduct (whether or not in the course of his employment), which resulted in harm or risk of harm to a child.

Subsection (2) provides that an employment business must make a referral where the business has dismissed an individual on the grounds of misconduct (whether or not in the course of his employment), which resulted in a child being harmed or placed at risk of harm. A referral must also be made where the business would have dismissed or considered dismissal on such grounds if the individual had not resigned, retired or been made redundant before the decision had been effected. The duty to refer also applies to an employment business if it has decided not to supply the worker for further employment in a child care position on the grounds of misconduct resulting in harm or risk of harm to a child.

Subsections (3) to (6) detail the action to be taken by the Department on receipt of a referral from an employment agency, a nursing agency or an employment business. The procedures are similar to those in clause 2(5) - (7) i.e. the Department must seek the observations of the person referred and those of the referring organisation on any observations made by the person referred. This process will continue until a decision on listing can be reached. The individual will be provisionally included in the list kept under clause 1 until a determination by the Department is made.

Subsection (1) confers powers on certain authorities, in the exercise of relevant functions, to refer an individual who has not been referred under clauses 2 or 3. The referral will be made on the basis that the individual referred was guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm.

Subsections (2) - (3) list the authorities which may make referrals under this clause and the relevant functions referred to in subsection 1. These include an authority in the discharge of its registration and inspection functions under Parts VII to IX and XI of the Children Order (NI) 1995, the Northern Ireland Social Care Council and the Nursing and Midwifery Council in relation to their registration functions. Powers are included to prescribe other authorities.

Subsection (4) specifies that the action to be taken by the Department on receipt of a referral by an authority under this clause will be identical to that outlined in clause 2(4) - (7) in relation to an organisation.

Subsections (1) - (2) provide that the Department may consider placing an individual named in a relevant inquiry on the list under clause 1. The individual must be or have been employed in a child care position. The Department must be satisfied that the inquiry found that the individual was guilty of relevant misconduct (as defined at subsection (6)). The Department must also be satisfied that the individual is unsuitable to work with children. The Department may provisionally include the individual in the list kept under clause 1, but if it does so it must determine in accordance with subsections (3) - (5) whether the listing is to be confirmed.

Subsections (3) - (5) set out the action to be taken by the Department before a decision to include an individual on the list under clause 1 can be made. Observations must be invited from the individual named in the inquiry report and the organisation which employed the individual in a child care position at the time of the misconduct referred to in the report of the inquiry.

Subsections (6) - (7) give definitions of the terms 'relevant employer', 'relevant misconduct' and 'relevant inquiry'.

Subsections (1) - (3) permit the inclusion on the list maintained under clause 1 of those who have been referred under Part II of the Bill (vulnerable adults) who are considered by the Department to be unsuitable to work with children.

Subsection (4) provides that an individual can only be provisionally included in, or have his inclusion confirmed in, the list under clause 1 if he is also included (provisionally or otherwise as the case may be) in the list maintained under clause 33.

Subsection (5) provides that an individual listed in accordance with subsection (4) will be able to appeal under clause 9.

Subsections (1) - (3) provide that an authority (in effect an HSS Trust) carrying out an enquiry under Article 66 of the Children (NI) Order 1995 may refer a relevant individual (child care workers who are funded through certain direct payments) to be included in the list maintained under clause 1. The action to be taken by the Department on receipt of a referral by an authority under this clause will be identical to that outlined in clause 2(4) - (7) in relation to an organisation.

Subsections (1) - (3) make provision for the transfer of individuals listed on the Department's Pre-Employment Consultancy Service Register to the list maintained under clause 1. Provision is made for the observations of the individual and the referring organisation to be taken into account before an individual can be included in the list under clause 1 in much the same way as referrals from organisations are treated under clause 2.

Subsections (4) - (7) provide for transfer of an individual from the Pre-Employment Consultancy Service Register to the list maintained under clause 1 in circumstances where the individual has been included in the Register as a result of a relevant inquiry. The individual must have been considered by the person who held the inquiry to be guilty of relevant misconduct and unsuitable to work with children. The individual named in the inquiry report must also be employed, or have been employed, in a child care position. Inclusion on the Register cannot be provisional and must be before the commencement of clause 1. Provision is made for the observations of the individual, the person who held the inquiry and the individual's employer at the time of the misconduct, to be taken into account before an individual is included in the list under clause 1.

Subsection (1) provides that an individual may appeal to a Social Care Tribunal against a decision to include him (other than provisionally) on the list kept under clause 1 and with leave of the Tribunal, any decision by the Department not to remove him from the list under clause 1(3).

Subsection (2) provides that an individual who has been provisionally listed for more than 9 months may (with the leave of the Tribunal) have the issue of his inclusion on the list kept under clause 1 determined by the Tribunal, rather than the Department.

Subsection (3) provides that the Tribunal must either allow appeals against inclusion on the list, or determine the matter in the individual's favour. If it is not satisfied (a) that the individual is guilty of misconduct as alleged, and (b) that the individual is unsuitable to work with children, it must allow the appeal and (where appropriate) direct removal of the individual from the list. If the Tribunal is satisfied as to both (a) and (b) it must confirm his inclusion on the list, or (in the case of an individual who has been provisionally listed), direct his inclusion on the list.

Subsection (4) provides that findings of fact on which a relevant conviction in a criminal court was based are not to be challenged before the Tribunal. The intention is to prevent attempts to revisit criminal trials at an inappropriate hearing.

Subsections (5) - (6) provide that for the purposes of applications for leave under subsection (2), no application may be made where the alleged misconduct is the subject of civil or criminal proceedings until six months after the determination (as defined in subsection (6)) of those proceedings.

Subsections (1) - (3) provide that an individual may make an application to the Tribunal to have his name removed from the list held under clause 1, subject to conditions set out in clause 11. The Tribunal must direct his removal from the list if it considers that the individual no longer poses a risk to children.

Subsections (1) - (2) provide that an application for removal from the list under clause 10 may only be made with leave of the Tribunal and subject to the conditions set out in subsections (3) - (4).

Subsection (3) sets out the conditions which must be satisfied if the individual was a child when included (otherwise than provisionally) on the list kept under clause 1. The individual in question must have been included in the list for a continuous period of at least five years and a period of five years must have elapsed between the time an application is being made under this clause and any previous application for leave, if one was made.

Subsection (4) sets out the conditions which must be satisfied if the individual was not a child when included (otherwise than provisionally) on the list kept under clause 1. The individual in question must have been included in the list for a continuous period of at least ten years and a period of ten years must have elapsed between the time an application is being made under this clause and any previous application for leave, if one was made.

Subsection (5) provides that, before the Tribunal can grant an application for removal from the list, it must be satisfied that the individual's circumstances have changed since he was included (otherwise than provisionally) in the list, or since the time when he last made an application for leave. The intention is to prevent frequent applications on issues already determined by the Tribunal.

Subsections (1) - (2) enable the Chief Constable or a director of social services to apply to the High Court to have an individual restored to the list. This will apply where an individual who has been removed from the list appears, to the Chief Constable or a director of social services, to have acted in a way (whether before or after he ceased to be included in the list) which gives reasonable cause to believe that an order under this clause is necessary to protect children from serious harm from him.

Subsections (3) - (4) provide that an order under this clause may be applied for at any time after the individual ceased to be included in the list kept under clause 1. The High Court must order the restoration of the individual to the list if it is satisfied that the individual was previously listed and has acted in a way which gives reasonable cause to believe that he poses a risk to children.

Subsection (5) provides that, where the High Court makes an order for an individual to be restored to the list under this clause the periods for appeal set out in clause 11 will commence when the order for restoration is made.

Subsection (6) clarifies that, for the purposes of this clause, a person is no longer included in the list under clause 1 if he has been removed from the list under clause 10 and has not been restored to it as a result of an order under subsection (4).

Subsections (1) - (3) amend Articles 70 and 88A of the Education and Libraries (NI) Order 1986. These amendments will enable the Department of Education to make regulations prohibiting or restricting the employment of individuals as teachers on the grounds that the individual is included in the list maintained under clause 1, or on the grounds that the individual is unsuitable to work with children. Similar regulation making powers are provided in relation to non-teaching staff.

Subsections (4) - (7) introduce regulation making powers for appeals to the Tribunal to be available to those subject to a prohibition or restriction imposed in relation to teaching and non-teaching staff. The regulations may also provide that applications for reviews of prohibitions or restrictions are to be heard by the Tribunal. The Tribunal may only hear cases where the prohibition or restriction relates to inclusion in the list maintained under clause 1, or where the individual has been considered unsuitable to work with children. The right of appeal will not relate to other forms of misconduct, educational or health matters.

Subsection (1) provides that a child care organisation must, before employing someone in a child care position, check the relevant lists held by the Department and the Department of Education. The lists are those maintained under clause 1 and the list maintained by the Department of Education in relation to those deemed unsuitable to work with children by virtue of regulations made under the Education and Libraries (NI) Order 1986 as referred to in clause 13. If the individual is included on either list, the child care organisation must not offer him employment in a child care position.

Subsection (2) provides that a child care organisation which discovers that it is employing an individual who is included in either of the lists referred to in subsection 1 must cease to employ him in a child care position. The duty under this subsection will be satisfied where the organisation has suspended the individual or transferred him to a non-child care position.

Subsection (3) deals with arrangements where a person proposes to employ an individual to provide care for a child under arrangements for direct payments by an authority (in effect an HSS Trust). The authority in this case is required, if requested by the recipient, to establish if the individual to whom he proposes to offer employment is included in either of the lists referred to in subsection 1 above.

Subsection (4) deals with the situation where an individual is supplied by an employment agency, nursing agency or employment business to a child care organisation for work in a child care position. In such cases the organisation does not need to carry out a check under subsection 1, if it obtains written confirmation from the agency or business that a check has been carried out within the last 12 months. If the check carried out by the agency or business indicates that the individual is on either of the lists the child care organisation must not employ him in a child care position.

Subsection (5) deals with the duty of an authority referred to in subsection 3, in cases where an individual is being supplied by an employment agency, nursing agency or an employment business for the purposes of providing care to a child under the direct payments scheme. The authority does not need to carry out a check, if it obtains written confirmation of the outcome of any check carried out by the agency or business within the last 12 months.

Subsection (6) provides that, even though an individual is already employed by the child care organisation, this does not affect any requirement to carry out checks under clause 14. This is to allow for a situation where an individual already employed by the child care organisation is moved or applies to move from a non-child care position to a child care position within the organisation.

Subsection (7) clarifies that references to inclusion in the list held by the Department of Education in this clause and clause 15(1) refers to a person who is listed as unsuitable to work with children. An individual can be on the Department of Education list for a variety of reasons including, for example, on education grounds. For the purposes of the Bill it is essential to establish if he is on the list as being unsuitable to work with children generally and thus should not be employed in a child care position.

Subsections (1) - (3) cover arrangements for carrying out checks to establish if an individual is included in either the list kept under clause 1 or the Department of Education list as being unsuitable to work with children. These are interim arrangements pending the commencement of Part V of the Police Act 1997 (see note on subsections (4) - (6) below). The Department is required to provide the required information to anyone seeking to obtain information as to whether a relevant individual is on the list under clause 1, or the Department of Education list as being unsuitable to work with children. A 'relevant individual' is a person who is to be offered employment in a child care position, or who is to be found such employment, or who is to be supplied for employment in a child care position. Powers are included to add to the definition of 'relevant individual' and for fees to be imposed for carrying out checks.

Subsections (4) - (6) make a series of amendments to provisions in Part V of the Police Act 1997 which extends to Northern Ireland, but has yet to be commenced. Part V of the 1997 Act provides for the disclosure of criminal records and other information to a registered person for the purpose of determining the suitability of an applicant to be employed, supplied with work, found or given work in certain positions, including work with children. Under the Police Act, the information will be made available in the form of a certificate. The overall effect of the amendments to the Police Act by subsections (4) - (6) is to ensure that information as to whether the applicant is included on the list kept under clause 1 or the Department of Education list will be included with the certificate in appropriate cases.

Subsections (1) - (3) enable the Department to make regulations providing for the accreditation of organisations which do not fall within the definition of a child care organisation and set out what matters may be covered in regulations. These matters include applications for accreditation, the information to be provided with an application, the imposition of fees, refusal or withdrawal of accreditation and appeals against a refusal or withdrawal of accreditation by the Department. The intention is to ensure that organisations which fall outside the definition of child care organisation can nevertheless apply to be treated as if they were child care organisations and thus be required to carry out checks and make referrals.

Subsections (1) - (2) provide that a person connected with a child care organisation may report to the Department that the organisation has failed to make a referral or carry out a check where it is required under section 2(1) or section 14(1)(a) to have done so. A person connected with the organisation is defined as an employee, a director of the organisation (in the case of a company), or a member of the governing body of the organisation.

Subsections (3) - (6) set out the actions to be taken by the Department and "the responsible authority" following receipt of a report under clause 17 that a child care organisation has failed to carry out a check or make a referral. Where the Department is of the opinion that the organisation has failed to make a referral or carry out a check, it must invite the observations of the organisation concerned. Having considered the initial report, the observations of the organisation and any other information which it considers relevant, the Department must refer the matter to the "responsible body". The latter is defined in subsection (7) as the body responsible for enforcing the statutory provisions under which the organisation is regulated. This will enable the body responsible for the regulation, inspection or registration of the organisation to take appropriate action. Where the responsible body is the Department itself, it may take such action as it considers appropriate.

Subsection (1) defines a number of terms used in Chapter I of the Bill. These definitions include that of "child care organisation" and "child care position". A child care organisation means an organisation which is concerned with the provision of accommodation, health services or personal social services to children or the supervision of children, whose activities are regulated by a prescribed statutory provision and which fulfils any other prescribed conditions. Under the Bill, certain duties are placed on child care organisations e.g. a duty to make referrals (clause 2) and a duty to carry out checks on prospective employees for child care positions (clause 14). A child care position is defined as one which is a regulated position for the purpose of Chapter II which creates certain offences in relation to such positions. For the purpose of Chapter I child care position does not include a position which may be subject to a prohibition or restriction imposed by regulations made under Article 70(2)(e) or 88A(2)(b) of the Education and Libraries (Northern Ireland) Order 1986 (see clause 13 above). This qualification is made so that prohibition or restriction on working in schools or other educational establishments will continue to be under the control of the Department of Education.

Subsection (2) recognises that some organisations carry out a range of functions only some of which relate to children. It provides that where only part of an organisation falls within the definition of a child care organisation and part of it does not, it shall be treated as two separate organisations.

Subsections (1) - (2) provide that a referral made under the current Pre-Employment Consultancy Service, which has not been determined prior to the commencement of clause 2, will be treated as if the referral was made under clause 2. The referral is considered "determined" when the individual referred by an organisation is included (other than provisionally) in the PECS Register or alternatively when the Department has decided that he should not be included.

Subsections (3) - (5) provide that certain provisions in the Bill will not have retrospective effect. An organisation, agency or business will not be required to make a referral under clause 2 if the dismissal, resignation, retirement, redundancy, formation of an opinion, decision, as the case may be, took place before the commencement of clause 2. The powers of certain authorities to make referrals (clauses 4 and 7) and the powers of the Department to include an individual on the list held under clause 1 following an inquiry (clause 5) will not apply to misconduct which occurred before the commencement of those provisions.

Chapter II

Disqualification from working with children

Chapter II includes provisions dealing with disqualification from working with children. An individual will be disqualified from working with children if he is subject to a disqualification order made under clause 21 or 22. An individual will also be disqualified if he is on the list kept under clause 1, or if he is on the list kept by the Department of Education as unsuitable to work with children (see clause 13).

Subsections (1) - (3) define what is meant by an offence against a child. These are the offences that will trigger consideration of the disqualification order in any particular case. An offence against a child means any offence listed in paragraph 1 of the Schedule to the Bill. Offences under paragraph 1 relate to offences which by definition relate to children. For the purposes of Chapter II an offence against a child also includes other offences (for example murder, rape) listed in paragraph 2 of the Schedule, if committed against a child. A person also commits an offence against a child if he falls within paragraph 3 of the Schedule. The Department may amend the Schedule by order, subject to approval by the Assembly.

Subsections (1) - (6) provide that when an individual is convicted or charged on indictment of an offence against a child committed when the individual was 18 or over, and receives a qualifying sentence or has a relevant order made in respect of him, the court must impose a disqualification order to prevent him working with children. The individual must be either charged or convicted on indictment. If the court believes that it is unlikely that the offender in question will commit a further offence against a child, then there is an option not to impose the disqualification order. Where this is the case, the reasons for not imposing the disqualification order must be stated and recorded. Therefore, where the offender is an adult at the time of committing the offence against a child, and a qualifying sentence has subsequently been imposed, there is a presumption that a disqualification order will also be imposed. The terms 'qualifying sentence' and 'relevant order' are defined in clause 22.

Subsections (1) - (5) outline the process when an individual is convicted or charged on indictment of an offence against a child committed when the individual was aged under 18 and subsequently receives a qualifying sentence, or has a relevant order made in respect of him. Again the court can impose a disqualification order upon that individual to prevent him from working with children. However, the court should only do so where it believes that there is a likelihood of the offender in question committing a further offence against a child. If the court elects to impose the order, then the reasons for doing so must be stated and recorded. Therefore, where the offender is a juvenile at the time of committing an offence against a child, and a qualifying sentence is subsequently imposed, a disqualification order will only be imposed if there appears to be a likelihood of further offences being committed by the individual.

Subsections (1) and (2) define the terms 'qualifying sentence' and 'relevant order'. In broad terms a qualifying sentence is a sentence of imprisonment or detention for a term of 12 months or more, or a hospital or guardianship order within the meaning of the Mental Health (Northern Ireland) Order 1986. Also included are a sentence of detention during the pleasure of the Secretary of State under the Criminal Justice (Children) (Northern Ireland) Order 1998 and suspended sentences of 12 months imprisonment or more or a suspended order for detention. A 'relevant order' includes an order that the individual in question be admitted to hospital, or a guardianship order within the meaning of the Mental Health (Northern Ireland) Order 1986.

Subsection (3) provides that, for the purposes of imposing a disqualification order under clause 20 or 21 (or of determining the validity of a disqualification order) where the age of the offender is in question, his age will be taken to be that which the court determines it to be.

Subsection (4) provides that all further references in Chapter II to disqualification orders, sentence imposed or order made are to be taken to have the same meaning as in clauses 20 and 21.

Clause 24 clarifies that a disqualification order is to be treated as a sentence imposed by a court for the purpose of appeals.

Subsections (1) - (3) provide for a review process for those subject to a disqualification order. The individual must make an application to a Social Care Tribunal. The Tribunal will be required to determine whether or not the individual is to continue to be subject to the order. If it is satisfied that the individual is suitable to work with children, the Tribunal must direct that the disqualification order will cease to have effect.

Subsections (1) - (5) provide that an application to a Social Care Tribunal for a review of a disqualification order can only be made with leave of the Tribunal and subject to certain conditions. In the case of those who were under the age of 18 when they committed an offence, at least five years must have elapsed since the relevant date. In the case of all other individuals, at least ten years must have elapsed since the relevant date. A definition of relevant date is provided in subsection (6). The Tribunal must not grant an application unless the individual's circumstances have changed in a way which is such that leave should be granted, since the time the disqualification order was made or since he last made a review application.

Subsection (6) defines the meaning of 'relevant date' for the purpose of applications for review of disqualification orders. The underlying principle is that the relevant date is that from which the individual was in the community with the opportunity to demonstrate that the risk posed really has passed, and that he is now suitable to work with children. For example, where an individual has received a custodial sentence, the period of time is calculated from the day on which the individual is released from custody. In cases where the disqualification order was imposed subsequent to the day of release, the period is calculated from the day on which the order was imposed. Where an individual has received a suspended sentence, the period of time is calculated from the date on which the disqualification order was imposed. Where an individual is detained in a hospital pursuant to an order for admission to hospital, the period of time is calculated from the day on which the individual ceased to be liable to such detention. In cases where the individual is not detained, the period is calculated from the day on which the order was imposed.

Subsections (7) - (8) defines certain terms used in clause 26.

Subsections (1) - (4) provide a mechanism for the restoration of a disqualification order which is no longer in force in relation to an individual. Where it appears to the Chief Constable, or a director of social services, that the individual is acting in a way that gives rise to concern for the safety of children, the Chief Constable or director may apply to the High Court for the order to be restored. If the High Court is satisfied that the behaviour of the person in question gives rise to reasonable belief that children are at risk of serious harm from that person it must order that the disqualification order be restored.

Subsection (5) provides that for the purposes of applications for review of disqualification orders (see notes on clauses 25 - 26) the timescales for applications are to be calculated with reference to any restoration of a disqualification order under this clause.

Subsection (6) specifies that (for the purpose of restoration of a disqualification order) an order is no longer in force if the application to have it reviewed resulted in a Tribunal decision for it to cease to have effect and it has not been restored.

Subsections (1) - (3) relate to offences. An individual, who is disqualified from working with children, will commit an offence if he knowingly applies for, offers to do, accepts or does any work in a regulated position. If a person is aware that an individual is disqualified from working with children it will be an offence to knowingly offer him work in a regulated position. It will be an offence for a person to procure work in a regulated position for a disqualified individual or to allow such an individual to continue in such work. A disqualified individual charged with an offence of applying for, offering to do, accepting or working in a regulated position may use as a defence the fact that he did not know, and could not reasonably be expected to know, that he was disqualified from working with children. The defence will require proof that the individual did not know and could not be expected to know that he was a disqualified person.

Subsection (4) provides that an individual is disqualified from working with children if he is included (other than provisionally) on the list kept by the Department under clause 1. An individual will also be disqualified if he is included on the list kept by the Department of Education of individuals who are unsuitable to work with children (see clause 13) or if he is subject to a disqualification order (see clauses 21 and 22).

Subsection (5) provides that an individual who is guilty of an offence under this section will be liable on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both. On conviction on indictment he will be liable to imprisonment for a term not exceeding five years, or to a fine, or to both.

Subsections (1) - (7) relate to the basic sets of regulated position. These include work in children's homes, institutions for the detention of children, educational institutions, day care premises, positions whose normal duties include caring for, training, supervising or being in sole charge of children and positions which include supervising or managing an individual working in a regulated position on a day-to-day basis. The emphasis is upon posts whose normal duties involve work with children. An exception is the positions referred to in subsection (1)(g) and (6), which relate to management and other posts (for example a director of social services) which relate to services for children, but which do not involve day-to-day work with children.

Subsections (8) - (11) clarify a number of terms used for the purposes of this clause.

Subsections (12) - (13) provide the Department with a power to amend the definition of 'regulated position' by order subject to approval by the Assembly.

Subsections (1) and (2) provide the Department with a power to provide that the offences set out in clause 28 will apply in relation to an individual who is subject to a prohibition or disqualification made in another jurisdiction. The prohibition or disqualification must appear to the Department to be equivalent to a prohibition or disqualification made in accordance with clause 28. A prohibition or disqualification under the law of England and Wales is excluded because the Criminal Justice and Courts Services Act 2000, which creates offences equivalent to those in clause 28(4), extends to Northern Ireland.

Subsections (1) - (2) provide that the imposition of a disqualification order will have no impact on the period of rehabilitation applicable under the Rehabilitation of Offenders (Northern Ireland) Order 1978.

Subsections (1) - (2) provide interpretation and clarification of certain terms used in the Chapter II of the Bill.

Part II

Protection of Vulnerable Adults

Introduction

Much of Part II replicates provisions contained in Part I of the Bill with references to "children" being replaced by references to "vulnerable adults", "child care organisations" with "providers of care" and "child care positions" with "care positions". Where necessary, a fuller commentary on individual clauses is given.

Subsections (1) - (3) set out the duty of the Department to keep a list of persons who are considered unsuitable to work with vulnerable adults and provide an equivalent to clause 1 with a reference to vulnerable adults in place of children. The Department may at any time remove an individual from the list.

Subsections (1) - (9) place a duty on a provider of care services to refer a care worker for inclusion on the list held under clause 33 on the grounds of misconduct which harmed a vulnerable adult or placed a vulnerable adult at risk of harm. The conditions for referral are set out. These are similar to the conditions in clause 2 (i.e. the individual must have been dismissed, have resigned, have retired, been transferred to a position which is not a care position etc). The term "care worker" and "care position" are defined at clause 46. As detailed in the commentary on clause 2, where it considers that it may be appropriate to list an individual, the Department is required to invite and take into account the observations of all relevant parties. Before including an individual in the list under clause 33, the Department must be of the opinion that the provider reasonably considered the individual to be guilty of misconduct which harmed a vulnerable adult or placed a vulnerable adult at risk of harm. The Department must also be of the opinion that the individual is unsuitable to work with vulnerable adults. Pending a decision to place an individual on the list he will be provisionally listed.

Subsection (1) - (6) place a duty to make referrals on employment agencies, employment businesses and nursing agencies in relation to care workers, with the conditions and process of referral following those in clause 3 with reference to vulnerable adults in place of a reference to children.

Subsections (1) - (4) reflect the provisions in clause 4. Other authorities (listed in subsection 2), in the exercise of relevant functions (defined in subsection (3)) can refer a care worker considered guilty of misconduct (whether or not in the course of his employment) which harmed a vulnerable adult or placed a vulnerable adult at risk of harm. Again the individual will be provisionally listed until a decision can be reached on whether or not he is to be included in the list kept under clause 33.

Subsections (1) - (7) reflect the provisions in clause 5. The Department may include an individual named in an inquiry in the list kept under clause 33 with the inquiries and processes involved being as in clause 5.

Subsections (1) - (4) reciprocate the provisions of clause 6. They provide a mechanism under which an individual who was originally referred for inclusion on the list kept under clause 1 (which relates to work with children), can also be included in the list kept under clause 33 (which relates to work with vulnerable adults). In effect, the referral is treated as though it was a referral relating to work with vulnerable adults rather than to work with children, with all of the procedures in clause 2 relating to placement on the list held under clause 1 applied as though the referral related to work with vulnerable adults. However, an individual referred for inclusion on the clause 1 list cannot be included in the list held under clause 33, provisionally or otherwise, if the decision is taken not to include him on the list held under clause 1.

Subsection (5) provides a right of appeal to the Tribunal for an individual who is included on the list kept under clause 33 because of a referral that originally arose from alleged misconduct involving a child. The effect is that, where the Tribunal finds the individual was not guilty of misconduct which harmed, or placed a child at risk of harm the Tribunal must allow the appeal and the individual must be removed from the list held under clause 33.

Subsections (1) - (3) are equivalent to the provisions in clause 8 which deal with the transfer of individuals listed on the Department's Pre-Employment Consultancy Service Register to the list maintained under clause 1, with reference to work with vulnerable adults in place of work with children. The provision will affect the small number of individuals included under the Register on the grounds that they are unsuitable to work with adults with a learning disability.

Subsections (4) - (7) reflect equivalent provisions in clause 8 and provide for transfer of an individual from the Pre-Employment Consultancy Service Register to the list maintained under clause 33 in circumstances where the individual has been included in the Register as a result of a relevant inquiry. The individual must have been considered by the person who held the inquiry to be guilty of relevant misconduct and unsuitable to work with vulnerable adults. The individual named in the inquiry report must also be employed or have been employed in a care position.

Subsections (1) - (6) deal with the rights of appeal to a Social Care Tribunal in relation to an individual who is included (other than provisionally) on the list maintained under clause 33. The provisions reflect those in clause 9 in relation to the list maintained under clause 1.

Subsections (1) - (3) provide for an individual to make an application to have his name removed from the list kept under clause 33. Application will be made to the Social Care Tribunal and the conditions, which must be met before an application for removal can be made, are set out in clause 42. Removal from the list will take place if the Tribunal is satisfied that the individual is no longer unsuitable to work with vulnerable adults.

These provisions deal with applications to the Social Care Tribunal by an individual who is included in the list at clause 33 for his removal from the list. The procedures and conditions which apply are identical to those described in relation to clauses 10 and 11 above as regards the list held under clause 1.

Subsections (1) - (6) provide a mechanism under which an individual who has been removed from the list held under clause 33 may be restored to the list following an application by the Chief Constable or a director of social services. The procedures and conditions which apply are identical to those described in relation to clause 12 as regards the list held under clause 1.

Subsections (1) - (4) place requirements on a person ("the provider") who proposes to offer an individual employment in a care position, to carry out checks of the list held under clause 33. If the individual is found to be included in the list then he must not be employed. If he is already employed, his employment in a care position must be terminated. The condition regarding termination of employment in a care position is met if the person is suspended, or transferred to a position which is not a care position. In the case of an individual who is supplied by an employment agency, nursing agency or employment business, the duty to carry out a check will be met if the provider obtains written confirmation from the agency or business that a check has been carried out in the last 12 months. The individual must not be employed if the check reveals that the individual is on the list held under clause 33. These provisions are similar to those in clause 14.

Subsections (5) - (8) provide that it will be an offence for an individual who is included (other than provisionally) on the list held under clause 33 to apply for, offer to do, accept or do any work in a care position. It will also be an offence to knowingly offer work in a care position to such an individual, procure such work for him, or fail to remove a listed individual from such work. A person who is guilty of an offence under this section will be liable on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both. On conviction on indictment he will be liable to imprisonment for a term not exceeding five years, or to a fine, or to both. It will be a defence for the person charged with an offence under this clause to prove that he did not know, and could not reasonably be expected to know, that he was included on the list. These provisions are similar to those in clause 28 in relation to work with children.

Subsections (1) - (2) detail the arrangements for access to the list kept under clause 33, which will be the same as those for access to the list kept under clause 1 (see notes on clause 15). These are interim arrangements pending the commencement of Part V of the Police Act 1997 (see note on subsections (3) - (5) below). A 'relevant individual' in this case is an individual to whom, the person requesting access to the list, proposes to offer or find employment or supply for employment in a care position. A power for the Department to add to the definition of 'relevant individual' is included.

Subsections (3) - (5) amend the Police Act 1997. As in clause 15, insertions are made in sections 113, 115, 119 and 120 of the 1997 Act which will have effect when the 1997 comes into operation. As a result of the amendments, disclosure certificates issued under sections 113 and 115 of the Police Act 1997 will include information on whether an individual is included in the list kept under clause 33.

Subsections (1) - (2) define the terms 'care worker' and 'care position'. The significance of the former is that such a person may be placed on the list held under clause 33 where the relevant conditions apply. A care worker is an individual who is, or who has been, employed in a position which enables him to have contact in the course of his duties with adults:

• to whom accommodation is provided at a residential care home or a nursing home;

• to whom prescribed services are provided by a health services body or at a private hospital;
• who, because of illness, infirmity or disability, are in receipt of any prescribed services in their own homes which they are unable to provide for themselves.

The term 'care position' is defined as any of the positions referred to above which an individual occupies and from which he may be prohibited from working by virtue of being placed on the list held by the Department under clause 33.

Subsection (3) provides a definition of 'harm' which, in relation to an adult who is not mentally handicapped, means ill-treatment or the impairment of health. In relation to an adult who is mentally handicapped, the term also includes impairment of development.

Subsections (3) - (4) define the terms 'health services body' as a Health & Social Services Trust, a Health & Social Services Board or a special agency. The term is used in the definitions of 'care worker' and 'care position' in subsections (1)-(2) above.

Subsection (5) defines the term 'supply worker' as an individual supplied by an employment agency or nursing agency or employment business for employment in a care position or for whom an employment or nursing agency has found employment in a care position.

Subsection (6) provides a definition of 'vulnerable adult'. A vulnerable adult is an adult to whom:

• accommodation and nursing or personal care are provided in a residential care or nursing home;

• any prescribed care service is provided in their own home under arrangements by a domiciliary care agency or a prescribed person;
• prescribed services are provided by a health services body or at a private hospital.

The intention is to ensure that the provisions regarding checks and referrals of those working with vulnerable adults may be applied in a variety of circumstances, including a range of prescribed services provided in a person's own home.

Subsection (7) provides a definition of 'provider of care for vulnerable adults'. Persons who provide care for vulnerable adults are persons who:

• carry on a residential care home or nursing home;

• carry on a domiciliary care agency or who provide prescribed care services in a person's own home;
• carry on an independent hospital which provides prescribed services; and
• a health services body which provides prescribed services.

Subsections (8) - (9) enable the Department to amend the definitions of 'care worker', 'care position' or 'vulnerable adult', or to add any prescribed persons to the list in subsection (7) of 'persons who provide care for vulnerable adults'. In relation to the list of persons who provide care for vulnerable adults, any addition can only include authorities which provide services to adults in the exercise of their social services functions, or persons who provide services which are similar to those which may or must be provided by authorities or health service bodies.

Subsection (10) provides that regulations made under subsection (8) to add to the list of persons who provide care for vulnerable adults may provide that the duty to make referrals under clauses 34 and 35 shall be replaced with a provision that the person added by regulations may make referrals.

Subsection (11) includes definitions of 'domiciliary care agency' and 'personal care'.

Subsections (1) - (2) reflect equivalent provisions in clause 19. They provide that a referral made under the current Pre-Employment Consultancy Service, which has not been determined prior to the commencement of clause 34, will be treated as if the referral was made under clause 34. The referral is considered "determined" when the individual referred by an organisation is included (other than provisionally) in the PECS Register or alternatively when the Department has decided that he should not be included.

Subsections (3) - (5) reflect equivalent provisions in clause 19. They provide that certain provisions in the Bill will not have retrospective effect. An organisation, agency or business will not be required to make a referral under clause 34 if the dismissal, resignation, retirement, redundancy, formation of an opinion, decision, as the case may be, took place before the commencement of that clause. The powers of certain authorities to make referrals (clauses 35 and 36) will not apply to misconduct which occurred before the commencement of those provisions.

Part III

Miscellaneous and Supplementary

Clause 48 - Social Care Tribunals

Subsection (1) - (2) provide that a Social Care Tribunal will hear appeals against decisions to include on the lists held under clause 1 and clause 33, applications for removal from the lists, reviews of disqualifications from working with children or vulnerable adults, appeals under regulations against a decision to refuse or withdraw accreditation of an organisation under clause 16, an appeal or determination under regulations made under Articles 70 or 88A of the Education and Libraries (Northern Ireland) Order by virtue of clause 13.

Subsections (3) - (6) include provisions relating to procedures in relation to appeals and determinations, the making of rules governing the manner in which appeals are to be instituted, the holding of hearings, reporting restrictions which may be imposed and the conduct of investigations by the Tribunal. The provisions also include matters dealing with the discovery and inspection of documents.

This clause includes definitions of terms used in the Bill.

Clause 50 provides that clauses 1 to 48 (and the Schedule) will come into operation on such day or days as the Department may by order appoint.

Clause 51 provides that the Act may be referred to as the Protection of Children and Vulnerable Adults Act (Northern Ireland) 2002.

The Schedule provides the meaning of 'offence against a child' to which reference is made in Chapter II of Part I. As indicated in the commentary on clause 20, these are the offences that will trigger consideration of the disqualification order in any particular case. These are mainly offences of a sexual or violent nature (although they include the supply of class A drugs to a child).

FINANCIAL EFFECTS OF THE BILL

22. The Department already operates the non-statutory PECS system of checks and referrals in relation to children and adults with a learning disability. Around 32,000 checks were carried out last year. The impact of the legislation in terms of additional workload is uncertain, particularly in relation to vulnerable adults. Although the existing service is provided free of charge, with modest cost to Departmental running costs, it is likely that costs will increase. Given that charges are currently imposed under equivalent arrangements in England & Wales and the anticipated increase in the number of checks which will be requested here, the Bill includes a power to enable the Department to impose charges to cover the costs of the proposed system.
    

HUMAN RIGHTS ISSUES

23. It is likely that the proposed Bill will have a positive impact in protecting the rights of vulnerable groups. The arrangements for a Tribunal to hear appeals will afford protection for those referred for inclusion on the lists of those deemed unsuitable to work with children and vulnerable adults.

EQUALITY IMPACT ASSESSMENT

24. As the Bill is intended to improve the safeguards for children and vulnerable adults, it will have a positive effect in ensuring equality between vulnerable groups and the wider public and would have no adverse effect on any group mentioned in section 75 of the Northern Ireland Act 1998.

SUMMARY OF THE REGULATORY APPRAISAL

25. It is considered that the impact on business in relation to those working with children will be negligible given that the vast majority of organisations who will be required to carry out checks are currently doing so under the current PECS system. In relation to vulnerable adults, it is likely that there will be some impact on the nursing and residential care home sectors where an estimated 13,000 people are employed. However, given that each organisation will be required under the legislative proposals to carry out checks on new employees only, the impact is considered to be minimal.

SECRETARY OF STATE'S CONSENT

26. The Secretary of State has consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill.

LEGISLATIVE COMPETENCE

27. At Introduction the Minister of Health, Social Services and Public Safety had made the following statement under section 9 of the Northern Ireland Act 1998:

    "In my view the Protection of Children and Vulnerable Adults Bill would be within the legislative competence of the Northern Ireland Assembly."