Protection of Children and Vulnerable Adults Bill
[AS INTRODUCED]
Contents
Part I
Protection of Children
Chapter I
Persons Unsuitable to Work with Children
List of persons unsuitable to work with children
- Duty of Department to keep list
- Inclusion in list on reference following disciplinary action, etc.
- Employment agencies, nursing agencies and employment businesses: duty to refer
- Power of certain other authorities to refer
- Individuals named in the findings of certain inquiries
- Inclusion in list on reference under Part II
- Reference by authority making direct payments in respect of services
- Inclusion in list on transfer from Pre-Employment Consultancy Service Register
- Appeals against inclusion in list
- Application for removal from list
- Conditions for applications under section 10
- Restoration to list
- List in connection with prohibiting or restricting employment in schools, etc.
- Effect of inclusion in either list
- Access to the lists
- Accredited organisations
- Whistle-blowing by employee or member of child care organisation
- Interpretation of this Chapter
- Transitional provisions
- Meaning of "offence against a child"
- Disqualification of adults from working with children
- Disqualification of juveniles from working with children
- Sections 21 and 22: supplementary
- Appeals
- Review of disqualification
- Conditions for applications under section 25
- Restoration of disqualification order
- Persons disqualified from working with children: offences
- Meaning of "regulated position"
- Disqualification in other jurisdictions
- Rehabilitation of offenders
- Interpretation of this Chapter
- Duty of Department to keep list
- Persons who provide care for vulnerable adults: duty to refer
- Employment agencies, nursing agencies and employment businesses: duty to refer
- Power of other authorities to refer
- Individuals named in the findings of certain inquiries
- Inclusion in list on reference under Part I
- Inclusion in list on transfer from Pre-Employment Consultancy Service Register
- Appeals against inclusion in list
- Application for removal from list
- Conditions for application under section 41
- Restoration to list
- Effect of inclusion in list
- Access to list
- Interpretation of this Part
- Transitional provisions
- Social Care Tribunals
- Interpretation of this Act
- Commencement
- Short title
Inclusion in list under section 1
Appeals and applications to Social Care Tribunal
List in connection with prohibiting or restricting employment in schools, etc.
Effect of inclusion in either list
Supplementary
Chapter II
Disqualification from working with children
Disqualification orders
Effect of disqualification from working with children
Interpretation of Chapter II
Part II
Protection of vulnerable adults
List of persons unsuitable to work with vulnerable adults
Inclusion in list under section 33
Appeals and applications to Social Care Tribunal
Effect of inclusion in list
Supplementary
Part III
Miscellaneous and supplementary
Social Care Tribunals
Supplementary
Schedule Meaning of "offence against a child"
A
B I L L
TO
Make provision for the protection of children and vulnerable adults.
BE IT ENACTED by being passed by the Northern Ireland Assembly and assented to by Her Majesty as follows:
Part I
Protection of Children
Chapter I
Persons unsuitable to work with children
List of persons unsuitable to work with children
Duty of Department to keep list
1.¾ (1) The Department shall keep a list of individuals who are considered unsuitable to work with children.
(2) An individual shall not be included in the list except in accordance with this Chapter.
(3) The Department may at any time remove an individual from the list if it is satisfied that the individual should not have been included in it.
Inclusion in list under section 1
Inclusion in list on reference following disciplinary action, etc.
2.¾ (1) A child care organisation shall, and any other organisation may, refer to the Department an individual who is or has been employed in a child care position if there is fulfilled¾
(a) any of the conditions mentioned in subsection (2); or
(b) the condition mentioned in subsection (3).
(2) The conditions referred to in subsection (1)(a) are¾
(a) that the organisation has dismissed 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;
(b) that the individual has resigned, retired or been made redundant in circumstances such that the organisation would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant;
(c) that the organisation has, on such grounds, transferred the individual to a position within the organisation which is not a child care position;
(d) that the organisation has, on such grounds, suspended the individual or provisionally transferred him to such a position as is mentioned in paragraph (c), but has not yet decided whether to dismiss him or to confirm the transfer.
(3) The condition referred to in subsection (1)(b) is that¾
(a) in circumstances not falling within subsection (2), the organisation has dismissed the individual, he has resigned or retired or the organisation has transferred him to a position within the organisation which is not a child care position;
(b) information not available to the organisation at the time of the dismissal, resignation, retirement or transfer has since become available; and
(c) the organisation has formed the opinion that, if that information had been available at that time and if (where applicable) the individual had not resigned or retired, the organisation would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in subsection (2)(a).
(4) If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the individual to be included in the list kept under section 1, the Department shall¾
(a) determine the reference in accordance with subsections (5) to (7); and
(b) pending that determination, provisionally include the individual in the list.
(5) The Department shall¾
(a) invite observations from the individual on the information submitted with the reference and, if it thinks fit, on any observations submitted under paragraph (b); and
(b) invite observations from the organisation on any observations on the information submitted with the reference and, if it thinks fit, on any other observations under paragraph (a).
(6) Where¾
(a) the Department has considered the information submitted with the reference, any observations submitted to it and any other information which it considers relevant; and
(b) in the case of a reference under subsection (2)(d), the organisation has dismissed the individual or, as the case may be, has confirmed his transfer on such grounds as are there mentioned,
the Department shall confirm the individual's inclusion in the list if subsection (7) applies; otherwise it shall remove him from the list.
(7) This subsection applies if the Department is of the opinion¾
(a) that the organisation reasonably considered the individual to be guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm; and
(b) that the individual is unsuitable to work with children.
(8) The reference in subsection (6)(b) to the organisation dismissing the individual on such grounds as are mentioned in subsection (2)(d) includes¾
(a) a reference to his resigning, retiring or being made redundant in circumstances such that the organisation would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; and
(b) a reference to the organisation transferring him, on such grounds, to a position within the organisation which is not a child care position.
(9) This section does not apply where¾
(a) the organisation carries on an employment agency, nursing agency or employment business; and
(b) the individual in question is a supply worker in relation to it.
Employment agencies, nursing agencies and employment businesses: duty to refer
3.¾ (1) An organisation which carries on an employment agency or a nursing agency shall refer a supply worker to the Department if¾
(a) the organisation has decided not to do any further business with the worker 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; or
(b) the organisation has decided on such grounds not to find the worker further employment, or supply him for further employment, in a child care position.
(2) An organisation which carries on an employment business shall refer a supply worker to the Department if¾
(a) the organisation has dismissed the worker 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;
(b) the worker has resigned, retired or been made redundant in circumstances such that the organisation would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; or
(c) the organisation has, on such grounds, decided not to supply the worker for further employment in a child care position.
(3) If it appears from the information submitted with a reference under subsection (1) or (2) that it may be appropriate for the worker to be included in the list kept under section 1, the Department shall¾
(a) determine the reference in accordance with subsections (4) to (6); and
(b) pending that determination, provisionally include the worker in the list.
(4) The Department shall¾
(a) invite observations from the worker on the information submitted with the reference and, if it thinks fit, on any observations submitted under paragraph (b); and
(b) invite observations from the organisation on any observations on the information submitted with the reference and, if the Department thinks fit, on any other observations under paragraph (a).
(5) Where the Department has considered the information submitted with the reference, any observations submitted to it and any other information which it considers relevant, the Department shall confirm the worker's inclusion in the list if subsection (6) applies; otherwise it shall remove him from the list.
(6) This subsection applies if the Department is of the opinion¾
(a) that the organisation reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm; and
(b) that the worker is unsuitable to work with children.
Power of certain other authorities to refer
4.¾ (1) A person to whom this section applies may refer to the Department an individual who is or has been employed in a child care position if¾
(a) on the basis of evidence obtained by him in the exercise of relevant functions, the person considers that the individual has been guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm; and
(b) the individual has not been referred to the Department under section 2 or 3 in respect of the misconduct.
(2) The persons to whom this section applies are¾
(a) an authority;
(b) the Nursing and Midwifery Council;
(c) the Northern Ireland Social Care Council;
(d) any other person designated for the purposes of this section by an order made by the Department subject to negative resolution.
(3) In subsection (1) "relevant functions" means¾
(a) in relation to an authority, functions under Parts VII to IX and XI and Article 176 of the Children Order;
(b) in relation to the Nursing and Midwifery Council, functions under Parts III and V of the Nursing and Midwifery Order 2001 (SI 2002/253) (registration and fitness to practise);
(c) in relation to the Northern Ireland Social Care Council, functions under sections 3 to 8 of the Health and Personal Social Services Act (Northern Ireland) 2001 (c. 3) (registration of social workers and social care workers);
(d) in relation to a person designated by an order under subsection (2)(d), such functions as are specified for the purposes of this section by the order.
(4) Section 2(4) to (7) shall apply in relation to a reference made by a person under subsection (1) as it applies in relation to a reference made by an organisation under section 2(1).
Individuals named in the findings of certain inquiries
5.¾ (1) Subsection (2) applies where¾
(a) a relevant inquiry has been held;
(b) the report of the person who held the inquiry names an individual who is or has been employed in a child care position; and
(c) it appears to the Department from the report¾
(i) that the person who held the inquiry found that the individual was guilty of relevant misconduct; and
(ii) that the individual is unsuitable to work with children.
(2) The Department¾
(a) may provisionally include the individual in the list kept under section 1; and
(b) if it does so, shall determine in accordance with subsections (3) to (5) whether the individual's inclusion in the list should be confirmed.
(3) The Department shall¾
(a) invite observations from the individual on the report, so far as relating to him, and, if the Department thinks fit, on any observations submitted under paragraph (b); and
(b) invite observations from the relevant employer on any observations on the report and, if the Department thinks fit, on any other observations under paragraph (a).
(4) Where the Department has considered the report, any observations submitted to it and any other information which it considers relevant, it shall confirm that individual's inclusion in the list if subsection (5) applies; otherwise it shall remove him from the list.
(5) This subsection applies if the Department is of the opinion¾
(a) that the person who held the inquiry reasonably considered the individual to be guilty of relevant misconduct; and
(b) that the individual is unsuitable to work with children.
(6) In this section¾
"relevant employer" means the person who, at the time mentioned in the definition of "relevant misconduct" below, employed the individual in a child care position;
"relevant misconduct" means misconduct which harmed a child or placed a child at risk of harm and was committed (whether or not in the course of his employment) at a time when the individual was employed in a child care position.
(7) In this section "relevant inquiry" means any of the following¾
(a) an inquiry held under¾
(i) Article 54 of the Health and Personal Social Services (Northern Ireland) Order 1972 (NI 14);
(ii) Article 108 of the Education and Libraries (Northern Ireland) Order 1986 (NI 3);
(iii) Article 69 of the Adoption (Northern Ireland) Order 1987 (NI 22);
(iv) Article 152 of the Children Order;
(b) an inquiry to which the Tribunals of Inquiry (Evidence) Act 1921 (c. 7) applies;
(c) any other inquiry or hearing designated for the purposes of this section by an order made by the Department subject to negative resolution.
Inclusion in list on reference under Part II
6.¾ (1) Section 34(4) to (7) shall, in the case of any reference under subsection (1) of that section or section 36, apply in relation to the list kept under section 1 as it applies in relation to the list kept under section 33, but as if the reference in subsection (7)(b) to vulnerable adults were a reference to children.
(2) Section 35(3) to (6) shall, in the case of any reference under subsection (1) or (2) of that section, apply in relation to the list kept under section 1 as it applies in relation to the list kept under section 33, but as if the reference in subsection (6)(b) to vulnerable adults were a reference to children.
(3) Section 37 shall apply in relation to the list kept under section 1 as it applies in relation to the list kept under section 33, but as if the references in subsections (1)(c)(ii) and (5)(b) to vulnerable adults were references to children.
(4) But the Department may not by virtue of this section provisionally include an individual in the list kept under section 1, or confirm his inclusion in that list, unless it provisionally includes him in the list kept under section 33 or, as the case requires, confirms his inclusion in that list.
(5) Where an individual has by virtue of this section been included in the list kept under section 1, section 9 shall apply to him as if the references in subsections (3)(a) and (4) to a child were references to a vulnerable adult.
Reference by authority making direct payments in respect of services
7.¾ (1) An authority may refer a relevant individual to the Department where, as a result of enquiries made, or caused to be made, by it under Article 66 of the Children Order, the authority considers that the individual has been guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm.
(2) Section 2(4) to (7) shall apply in relation to a reference made by an authority under subsection (1) as it applies in relation to a reference made by an organisation under section 2(1).
(3) In this section¾
"funded care" means care in respect of a person's securing the provision of which the authority has made a payment under Article 18C of the Children Order (direct payments);
"relevant individual" means an individual who is or has been employed to provide funded care to a child.
Inclusion in list on transfer from Pre-Employment Consultancy Service Register
8.¾ (1) Subsections (2) and (3) apply where¾
(a) an individual is included in the Pre-Employment Consultancy Service Register (otherwise than provisionally) immediately before the commencement of section 1;
(b) he was so included on a reference made to the Department by an organisation; and
(c) any of the conditions mentioned in section 2(2)(a) to (c), or the condition mentioned in section 2(3), was fulfilled in relation to that reference.
(2) If it appears from the information submitted with the reference that it may be appropriate for the individual to be included in the list kept by the Department under section 1, the Department shall¾
(a) invite observations from the individual on the information submitted with the reference and, if it thinks fit, on any observations submitted under paragraph (b); and
(b) invite observations from the organisation on any observations on the information submitted with the reference and, if the Department thinks fit, on any other observations under paragraph (a).
(3) The Department shall include the individual in the list kept by it under section 1 if, after it has considered the information submitted with the reference, any observations submitted to it and any other information which it considers relevant, it is of the opinion¾
(a) that the organisation reasonably considered the individual to be guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm; and
(b) that the individual is unsuitable to work with children.
(4) Subsections (5) and (6) apply where¾
(a) a relevant inquiry has been held;
(b) the report of the person who held the inquiry names an individual who is or has been employed in a child care position;
(c) it appears to the Department from the report¾
(i) that the person who held the inquiry found that the individual was guilty of relevant misconduct; and
(ii) that the individual is unsuitable to work with children; and
(d) the individual is included in the Pre-Employment Consultancy Service Register (otherwise than provisionally) immediately before the commencement of section 1.
(5) The Department shall¾
(a) invite observations from the individual on the report, so far as relating to him, and, if the Department thinks fit, on any observations submitted under paragraph (b); and
(b) invite observations from the relevant employer on any observations on the report and, if the Department thinks fit, on any other observations under paragraph (a).
(6) The Department shall include the individual in the list kept by it under section 1 if, after it has considered the report, any observations submitted to it and any other information which it considers relevant, it is of the opinion¾
(a) that the person who held the inquiry reasonably considered the individual to be guilty of relevant misconduct; and
(b) that the individual is unsuitable to work with children.
(7) In this section¾
"relevant employer", in relation to an individual named in the report of a relevant inquiry, means the person who, at the time mentioned in the definition of "relevant misconduct" below, employed the individual in a child care position;
"relevant inquiry" has the same meaning as in section 5;
"relevant misconduct" means misconduct which harmed a child or placed a child at risk of harm and was committed (whether or not in the course of his employment) at a time when the individual was employed in a child care position.
Appeals and applications to Social Care Tribunal
Appeals against inclusion in list
9. ¾ (1) An individual who is included (otherwise than provisionally) in the list kept by the Department under section 1 may appeal to a Social Care Tribunal against¾
(a) the decision to include him in the list; or
(b) with the leave of the Tribunal, any decision of the Department not to remove him from the list under section 1(3).
(2) Subject to subsection (5), an individual who has been provisionally included for a period of more than nine months in the list kept by the Department under section 1 may, with the leave of a Social Care Tribunal, have the issue of his inclusion in the list determined by the Tribunal instead of by the Department.
(3) If on an appeal or determination under this section a Social Care Tribunal is not satisfied of either of the following, namely¾
(a) that the individual 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; and
(b) that the individual is unsuitable to work with children,
the Tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.
(4) Where an individual has been convicted of an offence involving misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal or determination under this section.
(5) Where the misconduct of which the individual is alleged to have been guilty is the subject of any civil or criminal proceedings, an application for leave under subsection (2) may not be made before the end of the period of six months immediately following the final determination of the proceedings.
(6) For the purposes of subsection (5), proceedings are finally determined when¾
(a) the proceedings are terminated without a decision being made;
(b) a decision is made against which no appeal lies;
(c) in a case where an appeal lies with leave against a decision, the time limited for applications for leave expires without leave being granted; or
(d) in a case where leave to appeal against a decision is granted or is not required, the time limited for appeal expires without an appeal being brought.
Application for removal from list
10.¾ (1) Subject to section 11, an individual who is included in the list kept by the Department under section 1 may make an application to a Social Care Tribunal under this section.
(2) On an application under this section the Tribunal shall determine whether or not the individual should continue to be included in the list.
(3) If the Tribunal is satisfied that the individual is no longer unsuitable to work with children it shall direct his removal from the list; otherwise it shall dismiss the application.
Conditions for applications under section 10
11.¾ (1) An individual may only make an application under section 10 with the leave of a Social Care Tribunal.
(2) An application for leave under this section may not be made unless the appropriate conditions are satisfied in the individual's case.
(3) In the case of an individual who was a child when he was included (otherwise than provisionally) in the list, the appropriate conditions are satisfied if¾
(a) he has been so included for a continuous period of at least five years; and
(b) in the period of five years ending with the time when he makes the application under this section, he has made no other such application.
(4) In the case of any other individual, the appropriate conditions are satisfied if¾
(a) he has been included (otherwise than provisionally) in the list for a continuous period of at least ten years; and
(b) in the period of ten years ending with the time when he makes the application under this section, he has made no other such application.
(5) The Tribunal shall not grant an application under this section unless it considers¾
(a) that the individual's circumstances have changed since he was included (otherwise than provisionally) in the list, or, as the case may be, since he last made an application under this section; and
(b) that the change is such that leave should be granted.
Restoration to list
12.¾ (1) If it appears to the Chief Constable or a director of social services that the conditions set out in subsection (2) are satisfied in the case of an individual, the Chief Constable or (as the case may be) the director may apply to the High Court for an order under this section to be made in respect of the individual.
(2) The conditions are that¾
(a) the individual is no longer included in the list kept by the Department under section 1, and
(b) the individual has acted in such a way (whether before or after he ceased to be included in the list) as to give reasonable cause to believe that an order under this section is necessary to protect children in general, or any children in particular, from serious harm from him.
(3) An application under this section may be made at any time after the individual ceased to be included in the list.
(4) If the High Court is satisfied that the conditions set out in subsection (2) are satisfied, it must order the restoration of the individual's inclusion in the list; otherwise it must dismiss the application.
(5) Where an order is made under this section, section 11 has effect with the following modifications¾
(a) in subsection (3), the reference to the individual being a child when he was included in the list is to be read as a reference to his being a child when the order under this section was made,
(b) subsections (3)(a) and (4)(a) are to have effect as if after "years" there were inserted "beginning with the making of the order under section 12",
(c) in subsection (5)(a), the reference to the individual's circumstances changing since he was included in the list is to be read as a reference to his circumstances changing since the order under this section was made.
(6) For the purposes of this section an individual is no longer included in the list if a direction under section 10(3) has been given in respect of him and his inclusion in the list is not restored by virtue of an order under this section.
List in connection with prohibiting or restricting employment in schools, etc.
List in connection with prohibiting or restricting employment in schools, etc.
13.¾ (1) The Education and Libraries (Northern Ireland) Order 1986 (NI 3) shall have effect subject to the following provisions of this section.
(2) In Article 70(2)(e) (regulations for prohibiting or restricting the employment or further employment of teachers) for the words from "on medical grounds" to the end there shall be substituted "¾
(i) on medical grounds;
(ii) on the grounds of misconduct;
(iii) on the grounds that the persons concerned are unsuitable to work with children;
(iv) on the grounds that the persons concerned are included (other than provisionally) in the list kept by the Department of Health, Social Services and Public Safety under section 1 of the Protection of Children and Vulnerable Adults Act (Northern Ireland) 2002; or
(v) on educational grounds".
(3) In Article 88A(2)(b) (regulations for prohibiting or restricting the employment or further employment of non-teaching staff) for the words from "on medical grounds" to the end there shall be substituted "¾
(i) on medical grounds;
(ii) on the grounds of misconduct;
(iii) on the grounds that the persons concerned are unsuitable to work with children; or
(iv) on the grounds that the persons concerned are included (other than provisionally) in the list kept by the Department of Health, Social Services and Public Safety under section 1 of the Protection of Children and Vulnerable Adults Act (Northern Ireland) 2002".
(4) The power to make regulations under Article 70 or Article 88A includes power to provide that a person may appeal to a Social Care Tribunal against¾
(a) a decision to prohibit or restrict the person's employment or further employment on the grounds mentioned in Article 70 (2)(e)(iii) or (iv) or (as the case may be) Article 88A(2)(b)(iii) or (iv); or
(b) a decision not to revoke or vary such a decision as is mentioned in paragraph (a).
(5) Those regulations may¾
(a) make provision as to the circumstances in which a Social Care Tribunal shall allow an appeal under the regulations and as to the powers available to it on allowing such an appeal;
(b) provide that, where a person has been convicted of an offence involving misconduct, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal under the regulations.
(6) The power to make regulations under Article 70 or Article 88A also includes power to make provision for a person who has been subject, for a prescribed period, to a prohibition or restriction imposed on the grounds mentioned in Article 70(2)(e)(iv) or 88A(2)(b)(iv) to apply, with the leave of a Social Care Tribunal, for a review of the prohibition or restriction.
(7) Those regulations may make provision as to ¾
(a) the circumstances in which an application for leave, or a review, under the regulations shall be determined in the person's favour;
(b) the powers available to the Tribunal on determining a review in the person's favour.
Effect of inclusion in either list
Effect of inclusion in either list
14.¾ (1) Where a child care organisation proposes to offer an individual employment in a child care position, the organisation¾
(a) shall ascertain whether the individual is included in¾
(i) the list kept under section 1; or
(ii) the list kept for the purposes of regulations made under Article 70(2)(e) or 88A(2)(b) of the Education and Libraries (Northern Ireland) Order 1986 (NI 3); and
(b) if he is included in either of those lists, shall not offer him employment in such a position.
(2) Where a child care organisation discovers that an individual employed by it in a child care position is included in either of the lists mentioned in subsection (1), it shall cease to employ him in a child care position; and for the purposes of this subsection an individual is not employed in a child care position if he has been suspended or provisionally transferred to a position which is not a child care position.
(3) Where¾
(a) a person ("the recipient") employs, or proposes to employ, an individual to provide care for a child; and
(b) an authority proposes to make a payment to the recipient under Article 18C of the Children Order (direct payments) in respect of his securing the provision of the care,
the authority shall, if the recipient asks it to do so, ascertain whether the individual is included in either of the lists mentioned in subsection (1).
(4) Where a child care organisation proposes to offer employment in a child care position to an individual who has been supplied by an organisation which carries on an employment agency, nursing agency or employment business, there is a sufficient compliance with subsection (1) if the child care organisation¾
(a) satisfies itself that, on a date within the last 12 months, the other organisation ascertained whether the individual was included in either of the lists mentioned in subsection (1);
(b) obtains written confirmation of the facts as ascertained by that organisation; and
(c) if the individual was included in either of those lists on that date, does not offer him employment in a child care position.
(5) Where an authority is required under subsection (3) to ascertain whether an individual who has been supplied as mentioned in subsection (4) is included in either of the lists mentioned in subsection (1), there is sufficient compliance with subsection (3) if the authority¾
(a) satisfies itself that, on a date within the last 12 months, the organisation which supplied the individual ascertained whether he was included in any of those lists; and
(b) obtains written confirmation of the facts as ascertained by the organisation.
(6) It is immaterial for the purposes of subsection (1) or (4) whether the individual is already employed by the child care organisation.
(7) In this section and section 15(1) any reference to inclusion in the list kept for the purposes of regulations made under Article 70(2)(e) or 88A(2)(b) of the Education and Libraries (Northern Ireland) Order 1986, is a reference to inclusion in that list on the grounds mentioned in head (iii) of Article 70(2)(e) or (as the case may be) on the grounds mentioned in head (iii) of Article 88A(2)(b).
Access to the lists
15.¾ (1) In relation to any time before the commencement of subsections (4) and (5), any person seeking to ascertain whether a relevant individual is included in¾
(a) the list kept under section 1;
(b) the list kept for the purposes of regulations under Article 70(2)(e) or Article 88A(2)(b) of the Education and Libraries (Northern Ireland) Order 1986,
shall be entitled to that information on making application for the purpose to the Department and on paying any fee that is payable in relation to the application under regulations.
(2) For the purposes of subsection (1) a relevant individual is¾
(a) an individual to whom the person proposes to offer employment in a child care position;
(b) an individual for whom the person proposes to find employment, or whom he proposes to supply for employment, in a child care position; or
(c) an individual of a prescribed description who does not fall within paragraph (a) or (b).
(3) Paragraph (b) of subsection (1) does not prejudice any right conferred otherwise than by virtue of that paragraph.
(4) In section 113 of the Police Act 1997 (c. 50) after subsection (3E) there shall be inserted¾
"(3EA) If an application under this section is accompanied by a statement by the registered person that the certificate is required for the purpose of considering the applicant's suitability to be employed, supplied with work, found work or given work in a position (whether paid or unpaid) within subsection (3EB) the criminal record certificate shall also state¾
(a) whether the applicant is included in ¾
(i) the list kept under section 1 of the Protection of Children and Vulnerable Adults Act (Northern Ireland) 2002;
(ii) the list kept for the purposes of regulations made under Article 70 (2)(e) or 88A(2)(b) of the Education and Libraries (Northern Ireland) Order 1986; and
(b) if he is included in either of those lists, such details of his inclusion as may be prescribed, including (in the case of the latter list) the grounds on which he is so included.
(3EB) A position is within this subsection if it is¾
(a) a child care position within the meaning of Chapter I of Part I of the Protection of Children and Vulnerable Adults Act (Northern Ireland) 2002;
(b) a position employment or further employment in which may be prohibited or restricted by regulations under Article 70(2)(e) or 88A(2)(b) of the Education and Libraries (Northern Ireland) Order 1986; or
(c) a position of such other description as may be prescribed.".
(5) In section 115 of that Act after subsection (6E) there shall be inserted ¾
"(6EA) If an application under this section is accompanied by a statement by the registered person that the certificate is required for the purpose of considering the applicant's suitability to be employed, supplied with work, found work or given work in a position (whether paid or unpaid) within subsection (3EB) of section 113, the enhanced criminal record certificate shall also state¾
(a) whether the applicant is included in¾
(i) the list kept under section 1 of the Protection of Children and Vulnerable Adults Act (Northern Ireland) 2002; or
(ii) the list kept for the purposes of regulations made under Article 70 (2)(e) or 88A(2)(b) of the Education and Libraries (Northern Ireland) Order 1986; and
(b) if he is included in either of those lists, such details of his inclusion as may be prescribed, including (in the case of the latter list) the grounds on which he is so included.".
(6) In sections 119(1A) and 120A(3)(b) of that Act after "(3C)" there shall be inserted " or (3EA)".
Supplementary
Accredited organisations
16.¾ (1) For the purposes of this Chapter, the Department may by regulations provide for the accreditation by or on behalf of the Department of any organisation which is not a child care organisation.
(2) Regulations under subsection (1) may¾
(a) provide for the making of applications for accreditation by organisations and for the information to be provided with such applications;
(b) provide for such applications to be accompanied by such other documents as are prescribed;
(c) prescribe the conditions under which organisations may become or remain accredited;
(d) provide for fees to be payable by organisations in connection with becoming or remaining accredited;
(e) provide for the inspection of accredited organisations (including the power to enter premises);
(f) provide for accreditation to be refused or withdrawn on such grounds as may be prescribed;
(g) provide for organisations to appeal to a Social Care Tribunal against a decision of the Department to refuse or withdraw accreditation.
(3) Subject to such modifications as may be prescribed, this Chapter shall apply to organisations for the time being accredited under this section as if they were child care organisations.
Whistle-blowing by employee or member of child care organisation
17.¾ (1) This section applies where a person connected with a child care organisation reports to the Department that the organisation has failed to comply with section 2(1) or 14(1)(a) in relation to an individual named in the report.
(2) For the purposes of this section a person is connected with a child care organisation if¾
(a) he is an employee of the organisation; or
(b) he is¾
(i) a director of the organisation, in the case of a company; or
(ii) in any other case, a member of the governing body of the organisation (by whatever name that body is known).
(3) On receipt of such a report the Department shall invite observations from the organisation concerned on the information submitted with the report.
(4) Where after considering¾
(a) the information submitted with the report;
(b) any observations submitted by the organisation; and
(c) any other information which the Department considers relevant,
the Department is of the opinion that the organisation has failed to comply with section 2(1) or 14(1)(a) in relation to an individual, the Department shall¾
(i) where the Department is the responsible authority, take such action in relation to that organisation as is required by subsection (6); or
(ii) where the Department is not the responsible authority, refer that failure to the responsible authority.
(5) Where a failure is referred to a responsible authority under subsection (4)(ii) it shall be the duty of that authority to take such action in relation to the organisation as is required by subsection (6).
(6) The responsible authority shall take such action in relation to the organisation concerned (including in particular action with respect to the inspection or registration of that organisation) as appears to the responsible authority to be appropriate in the circumstances.
(7) For the purposes of this section "the responsible authority", in relation to a child care organisation, is the person or body which in the opinion of the Department is responsible for the enforcement of the statutory provisions by or by virtue of which the organisation is regulated.
Interpretation of this Chapter
18.¾ (1) In this Chapter¾
"authority" has the same meaning as in the Children Order;
"child care organisation" means an organisation¾
(a) which is concerned with the provision of accommodation, health services or personal social services to children or the supervision of children;
(b) whose activities are regulated by or by virtue of any prescribed statutory provision; and
(c) which fulfils such other conditions as may be prescribed;
"child care position" means a position which¾
(a) is a regulated position for the purposes of Chapter II; but
(b) is not a position employment or further employment in which may be prohibited or restricted by regulations made under Article 70(2)(e) or 88A(2)(b) of the Education and Libraries (Northern Ireland) Order 1986;
"harm" has the same meaning as in Article 2(2) of the Children Order;
"health services" and "personal social services" have the same meanings as in the Health and Personal Social Services (Northern Ireland) Order 1972 (NI 14);
"organisation" means a body corporate or unincorporate or an individual who employs others in the course of a business;
"supply worker"¾
(a) in relation to an employment agency or nursing agency, means an individual supplied by the agency for employment in a child care position or for whom the agency has found employment in a child care position;
(b) in relation to an employment business, means an individual supplied by the business for employment in a child care position.
(2) Where part of an organisation fulfils the condition in paragraph (b) of the above definition of "child care organisation" and part of it does not, this Chapter shall have effect as if the two parts were separate organisations.
Transitional provisions
19.¾ (1) Where¾
(a) an individual who is or has been employed in a child care position has been referred by an organisation to the Department for inclusion in the Pre-Employment Consultancy Service Register;
(b) the reference has not been determined at the commencement of section 2; and
(c) any of the conditions mentioned in subsection (2), or the condition mentioned in subsection (3), of that section was fulfilled in relation to the reference,
that section shall apply as if the reference had been a reference made by the organisation under subsection (1) of that section.
(2) For the purposes of subsection (1), a reference of an individual for inclusion in that Register is determined only when, following the reference¾
(a) the individual is included (otherwise than provisionally) in the Register; or
(b) the Department determines that he should not be included in it.
(3) Nothing in section 2 shall require a child care organisation to refer an individual to the Department in any case where the dismissal, resignation, retirement, redundancy, transfer or suspension mentioned in that section took place or, as the case may be, the opinion so mentioned was formed before the commencement of that section.
(4) Nothing in section 3 shall require an organisation which carries on an employment agency, nursing agency or employment business to refer a supply worker to the Department in any case where the dismissal, resignation, retirement or redundancy mentioned in that section took place or, as the case may be, the decision so mentioned was made before the commencement of that section.
(5) Sections 4, 5 and 7 do not apply to misconduct which occurred before the commencement of those sections.
Chapter II
Disqualification from working with children
Disqualification orders
Meaning of "offence against a child"
20.¾ (1) For the purposes of this Chapter, an individual commits an offence against a child if¾
(a) he commits any offence mentioned in paragraph 1 of the Schedule,
(b) he commits against a child any offence mentioned in paragraph 2 of the Schedule, or
(c) he falls within paragraph 3 of the Schedule,
and references to being convicted of, or charged with, an offence against a child are to be read accordingly.
(2) The Department may by order amend the Schedule so as to add, modify or omit any entry.
(3) No order shall be made under subsection (2) unless a draft of the order has been laid before and approved by resolution of the Assembly.
Disqualification of adults from working with children
21.¾ (1) This section applies where either of the conditions set out below is satisfied in the case of an individual.
(2) The first condition is that¾
(a) the individual is convicted on indictment of an offence against a child committed when he was aged 18 or over, and
(b) a qualifying sentence is imposed by the court in respect of the conviction.
(3) The second condition is that¾
(a) the individual is charged on indictment with an offence against a child committed when he was aged 18 or over, and
(b) a relevant order is made by the court in respect of the act or omission charged against him as the offence.
(4) Subject to subsection (5), the court must order the individual to be disqualified from working with children.
(5) An order shall not be made under this section if the court is satisfied, having regard to all the circumstances, that it is unlikely that the individual will commit any further offence against a child.
(6) If the court does not make an order under this section, it must state its reasons for not doing so and cause those reasons to be included in the record of the proceedings.
Disqualification of juveniles from working with children
22.¾ (1) This section applies where either of the conditions set out below is satisfied in the case of an individual.
(2) The first condition is that¾
(a) the individual is convicted on indictment of an offence against a child committed at a time when the individual was under the age of 18, and
(b) a qualifying sentence is imposed by the court in respect of the conviction.
(3) The second condition is that¾
(a) the individual is charged on indictment with an offence against a child committed at a time when the individual was under the age of 18, and
(b) a relevant order is made by the court in respect of the act or omission charged against him as the offence.
(4) If the court is satisfied, having regard to all the circumstances, that it is likely that the individual will commit a further offence against a child, it must order the individual to be disqualified from working with children.
(5) If the court makes an order under this section, it must state its reasons for doing so and cause those reasons to be included in the record of the proceedings.
Sections 21 and 22: supplementary
23.¾ (1) In sections 21 and 22¾
"qualifying sentence" means¾
(a) a sentence of imprisonment for a term of 12 months or more,
(b) an order for detention in a young offenders centre for a term of 12 months or more,
(c) a sentence of detention during the pleasure of the Secretary of State under Article 45 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (NI 9),
(d) a hospital order within the meaning of the Mental Health (Northern Ireland) Order 1986 (NI 4), or
(e) a guardianship order within the meaning of that Order;
"relevant order" means¾
(a) an order that the individual in question be admitted to hospital, or
(b) a guardianship order within the meaning of the Mental Health (Northern Ireland) Order 1986.
(2) In this Chapter references to a sentence of imprisonment or order for detention include references to a suspended sentence or order.
(3) If, for the purposes of making an order under section 21 or 22 the court determines, after considering any available evidence, that an individual was, or was not, under the age of 18 at the time when the offence in question was committed, his age at that time shall be taken, for the purposes of that section (and in particular for the purpose of determining any question as to the validity of the order), to be that which the court determined it to be.
(4) Below in this Chapter¾
(a) references to a disqualification order are to an order under section 21 or 22,
(b) in relation to an individual on whom a sentence has been passed, or in relation to whom an order has been made, as mentioned in subsection (2) or (3) of section 21 or 22, references to his sentence are to that sentence or order.
Appeals
24. An individual may appeal against a disqualification order¾
(a) where the first condition mentioned in section 21 or 22 is satisfied in his case, as if the order were a sentence passed on him for the offence of which he has been convicted,
(b) where the second condition mentioned in section 21 or 22 is satisfied in his case, as if he had been convicted of an offence on indictment and the order were a sentence passed on him for the offence.
Review of disqualification
25.¾ (1) Subject to section 26, an individual who is subject to a disqualification order may make an application to a Social Care Tribunal under this section.
(2) On an application under this section the Tribunal must determine whether or not the individual is to continue to be subject to the order.
(3) If the Tribunal is satisfied that the individual is suitable to work with children, it must direct that the order is to cease to have effect; otherwise it must dismiss the application.
Conditions for applications under section 25
26.¾ (1) An individual may only make an application under section 25 with the leave of the Tribunal.
(2) An application for leave under this section may not be made unless the appropriate conditions are satisfied in the individual's case.
(3) In the case of an individual who was under the age of 18 when he committed the offence against a child, the appropriate conditions are satisfied if¾
(a) at least five years have elapsed since the relevant date, and
(b) in the period of five years ending with the time when he makes the application under this section, he has made no other such application.
(4) In the case of any other individual, the appropriate conditions are satisfied if¾
(a) at least ten years have elapsed since the relevant date, and
(b) in the period of ten years ending with the time when he makes the application under this section, he has made no other such application.
(5) The Tribunal may not grant an application under this section unless it considers¾
(a) that the individual's circumstances have changed since the order was made or, as the case may be, since he last made an application under this section, and
(b) that the change is such that leave should be granted.
(6) In this section, "the relevant date" means¾
(a) in relation to an individual whose sentence is an actual term of custody, the day on which he is released or, if later, the day on which the disqualification order is made,
(b) in relation to an individual whose sentence is suspended and does not take effect, the day on which the disqualification order is made,
(c) in relation to an individual whose sentence is an order for admission to hospital¾
(i) if he is detained in a hospital pursuant to the order, the day on which he ceases to be liable to be detained there, or
(ii) if he is not so detained, the day on which the disqualification order is made,
(d) in relation to an individual whose sentence is a guardianship order within the meaning of the Mental Health (Northern Ireland) Order 1986 (NI 4), the day on which the disqualification order is made.
(7) In this section¾
"actual term of custody" means a term of imprisonment or detention which is not suspended, or is suspended but takes effect,
"order for admission to hospital" means¾
(a) an order that the individual be admitted to hospital, or
(b) a hospital order within the meaning of the Mental Health (Northern Ireland) Order 1986.
(8) In subsection (7) "detention" means detention under any sentence or order mentioned in paragraph (b) or (c) of the definition of "qualifying sentence" in section 23(1).
Restoration of disqualification order
27.¾ (1) If it appears to the Chief Constable or a director of social services that the conditions set out in subsection (2) are satisfied in the case of an individual, the Chief Constable or (as the case may be) the director may apply to the High Court for an order under this section to be made in respect of the individual.
(2) The conditions are that¾
(a) a disqualification order made in respect of the individual is no longer in force, and
(b) the individual has acted in such a way (whether before or after the order ceased to be in force) as to give reasonable cause to believe that an order under this section is necessary to protect children in general, or any children in particular, from serious harm from him.
(3) An application under this section may be made at any time after the disqualification order ceased to be in force.
(4) If the High Court is satisfied that the conditions set out in subsection (2) are satisfied, it must order that the disqualification order is to be restored; otherwise it must dismiss the application.
(5) Where an order is made under this section, section 26 has effect with the following modifications¾
(a) in subsection (3), the reference to the individual being under the age of 18 when he committed the offence against a child is to be read as a reference to his being under that age when the order under this section was made,
(b) in subsections (3)(a) and (4)(a), references to the relevant date are to be read as references to the date on which the order under this section was made,
(c) in subsection (5)(a), the reference to the individual's circumstances changing since the disqualification order was made is to be read as a reference to his circumstances changing since the order under this section was made.
(6) For the purposes of this section a disqualification order is no longer in force if a direction under section 25(3) has been given in respect of it and it is not restored by virtue of an order under this section.
Effect of disqualification from working with children
Persons disqualified from working with children: offences
28.¾ (1) An individual who is disqualified from working with children is guilty of an offence if he knowingly applies for, offers to do, accepts or does any work in a regulated position.
(2) An individual is guilty of an offence if he knowingly¾
(a) offers work in a regulated position to, or procures work in a regulated position for, an individual who is disqualified from working with children, or
(b) fails to remove such an individual from such work.
(3) It is a defence for an individual charged with an offence under subsection (1) to prove that he did not know, and could not reasonably be expected to know, that he was disqualified from working with children.
(4) An individual is disqualified from working with children for the purposes of this Chapter if¾
(a) he is included (otherwise than provisionally) in the list kept under section 1;
(b) he is included in the list kept for the purposes of regulations under paragraph (e) of Article 70(2) or paragraph (b) of Article 88A(2) of the Education and Libraries (Northern Ireland) Order 1986 (NI 3) on the grounds mentioned in head (iii) of the paragraph in question; or
(c) he is subject to a disqualification order.
(5) An individual who is guilty of an offence under this section is liable¾
(a) on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding the statutory maximum, or to both,
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both.
Meaning of "regulated position"
29.¾ (1) The regulated positions for the purposes of this Chapter are¾
(a) a position whose normal duties include work in an establishment mentioned in subsection (2),
(b) a position whose normal duties include work on day care premises,
(c) a position whose normal duties include caring for, training, supervising or being in sole charge of children,
(d) a position whose normal duties involve unsupervised contact with children under arrangements made by a responsible person,
(e) a position whose normal duties include caring for children under the age of 16 in the course of the children's employment,
(f) a position a substantial part of whose normal duties includes supervising or training children under the age of 16 in the course of the children's employment,
(g) a position mentioned in subsection (6),
(h) a position whose normal duties include supervising or managing an individual in his work in a regulated position.
(2) The establishments referred to in subsection (1)(a) are¾
(a) an institution which is exclusively or mainly for the detention of children by virtue of an order of a court or under any statutory provision,
(b) a hospital which is exclusively or mainly for the reception and treatment of children,
(c) a residential care home or nursing home which is exclusively or mainly for children,
(d) an educational institution,
(e) a children's home.
(3) For the purposes of this section, work done on any premises is treated as not being done on day care premises to the extent that¾
(a) it is done in a part of the premises in which children are not looked after, or
(b) it is done at times when children are not looked after there.
(4) The duties referred to in subsection (1)(c) and (d) do not include (respectively)¾
(a) caring for, training, supervising or being in sole charge of children in the course of the children's employment, or
(b) duties involving contact with children in the course of the children's employment.
(5) The reference in subsection (1)(d) to unsupervised contact is to contact in the absence of any responsible person or carer; and in this subsection, "carer" means a person who holds a position such as is mentioned in subsection (1)(c).
(6) The positions mentioned in subsection (1)(g) are¾
(a) member of a Health and Social Services Board or a Health and Social Services trust,
(b) director of social services,
(c) member, or chief education officer, of an education and library board established under Article 3 of the Education and Libraries (Northern Ireland) Order 1986 (NI 3),
(d) member of the governing body of an educational institution,
(e) trustee of a children's charity,
(f) Commissioner for Children and Young People for Northern Ireland.
(7) For the purposes of subsection (1)(h), the holder of a position¾
(a) only supervises an individual if he supervises the day-to-day performance of the individual's duties, and
(b) only manages an individual if the individual is directly responsible to him for the performance of his duties or he has authority to dismiss the individual.
(8) For the purposes of this section, a charity is a children's charity if the individuals who are workers for the charity normally include individuals working in regulated positions.
(9) For the purposes of this section, an individual is a worker for a charity if he does work under arrangements made by the charity; but the arrangements referred to in this subsection do not include any arrangements made for purposes which are merely incidental to the purposes for which the charity is established.
(10) For the purposes of this section, the following are responsible persons in relation to a child¾
(a) the child's parent or guardian and any adult with whom the child lives,
(b) the person in charge of any establishment mentioned in subsection (2) in which the child is accommodated, is a patient or receives education, and any person acting on behalf of such a person,
(c) a person registered under Part XI of the Children Order for providing day care on premises on which the child is cared for, and
(d) any person holding a position mentioned in subsection (6).
(11) For the purposes of this section "employment" means paid employment, whether under a contract of service or apprenticeship or under a contract for services.
(12) For the purpose of amending the definition of "regulated position", the Department may by order make any amendment of this section (apart from this subsection) which it thinks appropriate.
(13) No order shall be made under subsection (12) unless a draft of the order has been laid before and approved by resolution of the Assembly.
Disqualification in other jurisdictions
30.¾ (1) The Department may by order provide that section 28 shall apply in relation to an individual falling within subsection (2) as it applies in relation to an individual who is disqualified from working with children.
(2) An individual falls within this subsection if, under the law of any other jurisdiction (except England and Wales), he is subject to a prohibition or disqualification which, in the opinion of the Department, corresponds to disqualification (by any of the means mentioned in section 28(4)) from working with children.
Rehabilitation of offenders
31.¾ (1) Where a disqualification order is made in respect of an individual's conviction of an offence, the rehabilitation period which, in accordance with Article 8 of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (NI 27) is applicable to the conviction is to be determined as if that order had not been made; and a disqualification order is not a sentence for the purposes of that Order.
(2) In this section, "conviction" has the same meaning as in that Order.
Interpretation of Chapter II
Interpretation of this Chapter
32.¾ (1) In this Chapter¾
"children's home" has the meaning which would be given by Article 90(1) of the Children Order if, in Article 91(2) of that Order, sub-paragraphs (a), (f) and (g) and the words after sub-paragraph (h) were omitted,
"day care premises" means premises¾
(a) in respect of which a person is registered under Part XI of the Children Order for providing day care, or
(b) in which an authority provides day care under Article 19 of that Order,
"disqualification order" has the meaning given by section 23,
"educational institution" means an institution which is exclusively or mainly for the provision of full-time education to children,
"hospital" has the meaning given by Article 2(2) of the Health and Personal Social Services (Northern Ireland) Order 1972 (NI 14),
"work" includes¾
(a) work of any kind, whether paid or unpaid and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract, and
(b) an office established by or by virtue of a statutory provision,
and "working" is to be read accordingly.
(2) In this Chapter references, in relation to a suspended sentence, to taking effect are to taking effect by virtue of an order under section 19 of the Treatment of Offenders Act (Northern Ireland) 1968 (c. 29).
Part II
Protection of vulnerable adults
List of persons unsuitable to work with vulnerable adults
Duty of Department to keep list
33.¾ (1) The Department shall keep a list of individuals who are considered unsuitable to work with vulnerable adults.
(2) An individual shall not be included in the list except in accordance with this Part.
(3) The Department may at any time remove an individual from the list if it is satisfied that the individual should not have been included in it.
Inclusion in list under section 33
Persons who provide care for vulnerable adults: duty to refer
34.¾ (1) A person who provides care for vulnerable adults ("the provider") shall refer a care worker to the Department if there is fulfilled¾
(a) any of the conditions mentioned in subsection (2); or
(b) the condition mentioned in subsection (3).
(2) The conditions referred to in subsection (1)(a) are¾
(a) that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult;
(b) that the worker has resigned, retired or been made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant;
(c) that the provider has, on such grounds, transferred the worker to a position which is not a care position;
(d) that the provider has, on such grounds, suspended the worker or provisionally transferred him to such a position which is not a care position, but has not yet decided whether to dismiss him or to confirm the transfer.
(3) The condition referred to in subsection (1)(b) is that¾
(a) in circumstances not falling within subsection (2), the provider has dismissed the worker, he has resigned or retired or the provider has transferred him to a position which is not a care position;
(b) information not available to the provider at the time of the dismissal, resignation, retirement or transfer has since become available; and
(c) the provider has formed the opinion that, if that information had been available at that time and if (where applicable) the worker had not resigned or retired, the provider would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in subsection (2)(a).
(4) If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the worker to be included in the list kept under section 33, the Department shall¾
(a) determine the reference in accordance with subsections (5) to (7); and
(b) pending that determination, provisionally include the worker in the list.
(5) The Department shall¾
(a) invite observations from the worker on the information submitted with the reference and, if it thinks fit, on any observations submitted under paragraph (b); and
(b) invite observations from the provider on any observations on the information submitted with the reference and, if it thinks fit, on any other observations under paragraph (a).
(6) Where¾
(a) the Department has considered the information submitted with the reference, any observations submitted to it and any other information which it considers relevant; and
(b) in the case of a reference under subsection (2)(d), the provider has dismissed the worker or, as the case may be, has confirmed his transfer on such grounds as are there mentioned,
the Department shall confirm the worker's inclusion in the list if subsection (7) applies; otherwise it shall remove him from the list.
(7) This subsection applies if the Department is of the opinion¾
(a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and
(b) that the worker is unsuitable to work with vulnerable adults.
(8) The reference in subsection (6)(b) to the provider dismissing the worker on such grounds as are mentioned in subsection (2)(d) includes¾
(a) a reference to his resigning, retiring or being made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; and
(b) a reference to the provider transferring him, on such grounds, to a position which is not a care position.
(9) This section does not apply where¾
(a) the provider carries on an employment agency, nursing agency or employment business; and
(b) the worker in question is a supply worker in relation to him.
Employment agencies, nursing agencies and employment businesses: duty to refer
35.¾ (1) A person who carries on an employment agency or a nursing agency ("the provider") shall refer a supply worker to the Department if¾
(a) the provider has decided not to do any further business with the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; or
(b) the provider has decided on such grounds not to find the worker further employment, or supply him for further employment, in a care position.
(2) A person who carries on an employment business ("the provider") shall refer a supply worker to the Department if¾
(a) the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult;
(b) the worker has resigned, retired or been made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; or
(c) the provider has, on such grounds, decided not to supply the worker for further employment in a care position.
(3) If it appears from the information submitted with a reference under subsection (1) or (2) that it may be appropriate for the worker to be included in the list kept under section 33, the Department shall¾
(a) determine the reference in accordance with subsections (4) to (6); and
(b) pending that determination, provisionally include the worker in the list.
(4) The Department shall¾
(a) invite observations from the worker on the information submitted with the reference and, if it thinks fit, on any observations submitted under paragraph (b); and
(b) invite observations from the provider on any observations on the information submitted with the reference and, if it thinks fit, on any other observations under paragraph (a).
(5) Where the Department has considered the information submitted with the reference, any observations submitted to it and any other information which it considers relevant, the Department shall confirm the worker's inclusion in the list if subsection (6) applies; otherwise it shall remove him from the list.
(6) This subsection applies if the Department is of the opinion¾
(a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and
(b) that the worker is unsuitable to work with vulnerable adults.
Power of other authorities to refer
36.¾ (1) A person to whom this section applies may refer a care worker to the Department if ¾
(a) on the basis of evidence obtained by him in the exercise of relevant functions, the person considers that the individual has been 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; and
(b) the worker has not been referred to the Department under section 34 or 35 in respect of the misconduct.
(2) The persons to whom this section applies are¾
(a) a person authorised for the purposes of Article 29 of the Registered Homes (Northern Ireland) Order 1992 (NI 20);
(b) the Nursing and Midwifery Council;
(c) the Northern Ireland Social Care Council;
(d) any other person designated for the purposes of this section by an order made by the Department subject to negative resolution.
(3) In subsection (1) "relevant functions" means¾
(a) in relation to a person authorised for the purposes of Article 29 of the Registered Homes (Northern Ireland) Order 1992, functions under that Article;
(b) in relation to the Nursing and Midwifery Council, functions under Parts III and V of the Nursing and Midwifery Order 2001 (SI 2002/253) (registration and fitness to practise);
(c) in relation to the Northern Ireland Social Care Council, functions under sections 3 to 8 of the Health and Personal Social Services Act (Northern Ireland) 2001 (c. 3) (registration of social workers and social care workers);
(d) in relation to a person designated by an order under subsection (2)(d), such functions as are specified for the purposes of this section by the order.
(4) Section 34(4) to (7) shall apply in relation to a reference made by a person under subsection (1) as it applies in relation to a reference made by a person under section 34(1).
Individuals named in the findings of certain inquiries
37.¾ (1) Subsection (2) applies where¾
(a) a relevant inquiry has been held;
(b) the report of the person who held the inquiry names an individual who is or has been employed in a care position; and
(c) it appears to the Department from the report¾
(i) that the person who held the inquiry found that the individual was guilty of relevant misconduct; and
(ii) that the individual is unsuitable to work with vulnerable adults.
(2) The Department¾
(a) may provisionally include the individual in the list kept under section 33; and
(b) if it does so, shall determine in accordance with subsections (3) to (5) whether the individual's inclusion in the list should be confirmed.
(3) The Department shall¾
(a) invite observations from the individual on the report, so far as relating to him, and, if the Department thinks fit, on any observations submitted under paragraph (b); and
(b) invite observations from the relevant employer on any observations on the report and, if the Department thinks fit, on any other observations under paragraph (a).
(4) Where the Department has considered the report, any observations submitted to it and any other information which it considers relevant, it shall confirm that individual's inclusion in the list if subsection (5) applies; otherwise it shall remove him from the list.
(5) This subsection applies if the Department is of the opinion¾
(a) that the person who held the inquiry reasonably considered the individual to be guilty of relevant misconduct; and
(b) that the individual is unsuitable to work with vulnerable adults.
(6) In this section¾
"relevant employer" means the person who, at the time mentioned in the definition of "relevant misconduct" below, employed the individual in a care position;
"relevant misconduct" means misconduct which harmed or placed at risk of harm a vulnerable adult and was committed (whether or not in the course of his employment) at a time when the individual was employed in a care position.
(7) In this section "relevant inquiry" means any of the following¾
(a) an inquiry held under¾
(i) Article 54 of the Health and Personal Social Services (Northern Ireland) Order 1972 (NI 14);
(ii) Article 108 of the Education and Libraries (Northern Ireland) Order 1986 (NI 3);
(iii) Article 69 of the Adoption (Northern Ireland) Order 1987 (NI 22);
(iv) Article 152 of the Children Order;
(b) an inquiry to which the Tribunals of Inquiry (Evidence) Act 1921 (c. 7) applies;
(c) any other inquiry or hearing designated for the purposes of this section by an order made by the Department subject to negative resolution.
Inclusion in list on reference under Part I
38.¾ (1) Section 2(4) to (7) shall, in the case of any reference under section 2, 4 or 7, apply in relation to the list kept under section 33 as it applies in relation to the list kept under section 1, but as if the reference in subsection (7)(b) to children were a reference to vulnerable adults.
(2) Section 3(3) to (6) shall, in the case of any reference under subsection (1) or (2) of that section, apply in relation to the list kept under section 33 as it applies in relation to the list kept under section 1, but as if the reference in subsection (6)(b) to children were a reference to vulnerable adults.
(3) Section 5 shall apply in relation to the list kept under section 33 as it applies in relation to the list kept under section 1, but as if the references in subsections (1)(c)(ii) and (5)(b) to children were references to vulnerable adults.
(4) But the Department may not by virtue of this section provisionally include an individual in the list kept under section 33, or confirm his inclusion in that list, unless it provisionally includes him in the list kept under section 1 or, as the case requires, confirms his inclusion in that list.
(5) Where an individual has by virtue of this section been included in the list kept under section 33, section 40 shall apply to him as if the references in subsections (3)(a) and (4) to a vulnerable adult were references to a child.
Inclusion in list on transfer from Pre-Employment Consultancy Service Register
39.¾ (1) Subsections (2) and (3) apply where¾
(a) an individual is included in the Pre-Employment Consultancy Service Register (otherwise than provisionally) immediately before the commencement of section 33;
(b) he was so included on a reference made to the Department by an organisation (within the meaning of section 18(1)); and
(c) any of the conditions mentioned in section 34(2)(a) to (c), or the condition mentioned in section 34(3), was fulfilled in relation to that reference.
(2) If it appears from the information submitted with the reference that it may be appropriate for the individual to be included in the list kept by the Department under section 33, the Department shall¾
(a) invite observations from the individual on the information submitted with the reference and, if it thinks fit, on any observations submitted under paragraph (b); and
(b) invite observations from the organisation on any observations on the information submitted with the reference and, if the Department thinks fit, on any other observations under paragraph (a).
(3) The Department shall include the individual in the list kept by it under section 33 if, after it has considered the information submitted with the reference, any observations submitted to it and any other information which it considers relevant, it is of the opinion¾
(a) that the organisation reasonably considered the individual to be 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; and
(b) that the individual is unsuitable to work with vulnerable adults.
(4) Subsections (5) and (6) apply where¾
(a) a relevant inquiry has been held;
(b) the report of the person who held the inquiry names an individual who is or has been employed in a care position;
(c) it appears to the Department from the report¾
(i) that the person who held the inquiry found that the individual was guilty of relevant misconduct; and
(ii) that the individual is unsuitable to work with vulnerable adults; and
(d) the individual is included in the Pre-Employment Consultancy Service Register (otherwise than provisionally) immediately before the commencement of section 33.
(5) The Department shall¾
(a) invite observations from the individual on the report, so far as relating to him, and, if the Department thinks fit, on any observations submitted under paragraph (b); and
(b) invite observations from the relevant employer on any observations on the report and, if the Department thinks fit, on any other observations under paragraph (a).
(6) The Department shall include the individual in the list kept by it under section 33 if, after it has considered the report, any observations submitted to it and any other information which it considers relevant, it is of the opinion¾
(a) that the person who held the inquiry reasonably considered the individual to be guilty of relevant misconduct; and
(b) that the individual is unsuitable to work with vulnerable adults.
(7) In this section¾
"relevant employer", in relation to an individual named in the report of a relevant inquiry, means the person who, at the time mentioned in the definition of "relevant misconduct" below, employed the individual in a care position;
"relevant inquiry" has the same meaning as in section 37;
"relevant misconduct" means misconduct which harmed a vulnerable adult or placed a vulnerable adult at risk of harm and was committed (whether or not in the course of his employment) at a time when the individual was employed in a care position.
Appeals and applications to Social Care Tribunal
Appeals against inclusion in list
40.¾ (1) An individual who is included (otherwise than provisionally) in the list kept by the Department under section 33 may appeal to a Social Care Tribunal against¾
(a) the decision to include him in the list; or
(b) with the leave of the Tribunal, any decision of the Department not to remove him from the list under section 33(3).
(2) Subject to subsection (5), an individual who has been provisionally included for a period of more than nine months in the list kept by the Department under section 33 may, with the leave of a Social Care Tribunal, have the issue of his inclusion in the list determined by the Tribunal instead of by the Department.
(3) If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely¾
(a) that the individual was guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and
(b) that the individual is unsuitable to work with vulnerable adults,
the Tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.
(4) Where an individual has been convicted of an offence involving misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal or determination under this section.
(5) Where the misconduct of which the individual is alleged to have been guilty is the subject of any civil or criminal proceedings, an application for leave under subsection (2) may not be made before the end of the period of six months immediately following the final determination of the proceedings.
(6) For the purposes of subsection (5), proceedings are finally determined when¾
(a) the proceedings are terminated without a decision being made;
(b) a decision is made against which no appeal lies;
(c) in a case where an appeal lies with leave against a decision, the time limited for applications for leave expires without leave being granted; or
(d) in a case where leave to appeal against a decision is granted or is not required, the time limited for appeal expires without an appeal being brought.
Application for removal from list
41.¾ (1) Subject to section 42, an individual who is included in the list kept by the Department under section 33 may make an application to a Social Care Tribunal under this section.
(2) On an application under this section the Tribunal shall determine whether or not the individual should continue to be included in the list.
(3) If the Tribunal is satisfied that the individual is no longer unsuitable to work with vulnerable adults it shall direct his removal from the list; otherwise it shall dismiss the application.
Conditions for application under section 41
42.¾ (1) An individual may only make an application under section 41 with the leave of a Social Care Tribunal.
(2) An application for leave under this section may not be made unless the appropriate conditions are satisfied in the individual's case.
(3) In the case of an individual who was a child when he was included (otherwise than provisionally) in the list, the appropriate conditions are satisfied if¾
(a) he has been so included for a continuous period of at least five years; and
(b) in the period of five years ending with the time when he makes the application under this section, he has made no other such application.
(4) In the case of any other individual, the appropriate conditions are satisfied if¾
(a) he has been included (otherwise than provisionally) in the list for a continuous period of at least ten years; and
(b) in the period of ten years ending with the time when he makes the application under this section, he has made no other such application.
(5) The Tribunal shall not grant an application under this section unless it considers¾
(a) that the individual's circumstances have changed since he was included (otherwise than provisionally) in the list, or, as the case may be, since he last made an application under this section; and
(b) that the change is such that leave should be granted.
Restoration to list
43.¾ (1) If it appears to the Chief Constable or a director of social services that the conditions set out in subsection (2) are satisfied in the case of an individual, the Chief Constable or (as the case may be) the director may apply to the High Court for an order under this section to be made in respect of the individual.
(2) The conditions are that¾
(a) the individual is no longer included in the list kept by the Department under section 33, and
(b) the individual has acted in such a way (whether before or after he ceased to be included in the list) as to give reasonable cause to believe that an order under this section is necessary to protect vulnerable adults in general, or any vulnerable adults in particular, from serious harm from him.
(3) An application under this section may be made at any time after the individual ceased to be included in the list.
(4) If the High Court is satisfied that the conditions set out in subsection (2) are satisfied, it must order the restoration of the individual's inclusion in the list; otherwise it must dismiss the application.
(5) Where an order is made under this section, section 42 has effect with the following modifications¾
(a) in subsection (3), the reference to the individual being a child when he was included in the list is to be read as a reference to his being a child when the order under this section was made,
(b) subsections (3)(a) and (4)(a) are to have effect as if after "years" there were inserted "beginning with the making of the order under section 43",
(c) in subsection (5)(a), the reference to the individual's circumstances changing since he was included in the list is to be read as a reference to his circumstances changing since the order under this section was made.
(6) For the purposes of this section an individual is no longer included in the list if a direction under section 41(3) has been given in respect of him and his inclusion in the list is not restored by virtue of an order under this section.
Effect of inclusion in list
Effect of inclusion in list
44.¾ (1) Where a person who provides care to vulnerable adults proposes to offer an individual employment in a care position, that person¾
(a) shall ascertain whether the individual is included in the list kept under section 33; and
(b) if he is included in that list, shall not offer him employment in such a position.
(2) Where a person who provides care to vulnerable adults discovers that an individual employed by him in a care position is included in that list, he shall cease to employ him in a care position; and for the purposes of this subsection an individual is not employed in a care position if he has been suspended or provisionally transferred to a position which is not a care position.
(3) Where a person who provides care to vulnerable adults ("the provider") proposes to offer employment in a care position to an individual who has been supplied by a person who carries on an employment agency, nursing agency or employment business, there is a sufficient compliance with subsection (1) if the provider¾
(a) satisfies himself that, on a date within the last 12 months, the other person ascertained whether the individual was included in the list kept under section 33;
(b) obtains written confirmation of the facts as ascertained by that person; and
(c) if the individual was included in the list on that date, does not offer him employment in a care position.
(4) It is immaterial for the purposes of subsection (1) or (3) whether the individual is already employed by the provider.
(5) An individual who is included (otherwise than provisionally) in the list kept by the Department under section 33 shall be guilty of an offence if he knowingly applies for, offers to do, accepts or does any work in a care position.
(6) An individual is guilty of an offence if he knowingly¾
(a) offers work in a care position to, or procures work in a care position for, an individual who is included (otherwise than provisionally) in the list kept by the Department under section 33, or
(b) fails to remove such an individual from such work.
(7) It is a defence for an individual charged with an offence under subsection (5) to prove that he did not know, and could not reasonably be expected to know, that he was so included in that list.
(8) An individual who is guilty of an offence under subsection (5) or (6) shall be liable¾
(a) on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding the statutory maximum, or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both.
Access to list
45.¾ (1) In relation to any time before the commencement of subsections (3) and (4), any person seeking to ascertain whether a relevant individual is included in the list kept under section 33 shall be entitled to that information on making application for the purpose to the Department and paying any fee that is payable in connection with the application under regulations.
(2) For the purposes of subsection (1) a relevant individual is¾
(a) an individual to whom the person proposes to offer employment in a care position;
(b) an individual for whom the person proposes to find employment, or whom he proposes to supply for employment, in a care position; or
(c) an individual of a prescribed description who does not fall within paragraph (a) or (b).
(3) In section 113 of the Police Act 1997 after subsection (3EB) there shall be inserted¾
"(3EC) If an application under this section is accompanied by a statement by the registered person that the certificate is required for the purpose of considering the applicant's suitability to be employed, supplied to work, found work or given work in a position (whether paid or unpaid) within subsection (3ED) the criminal record certificate shall also state¾
(a) whether the applicant is included in the list kept under section 33 of the Protection of Children and Vulnerable Adults Act (Northern Ireland) 2002; and
(b) if he is included in that list, such details of his inclusion as may be prescribed.
(3ED) A position is within this subsection if it is¾
(a) a care position within the meaning of Part II of the Protection of Children and Vulnerable Adults Act (Northern Ireland) 2002; or
(b) a position of such other description as may be prescribed.".
(4) In section 115 of that Act after subsection (6EA) there shall be inserted¾
"(6EB) If an application under this section is accompanied by a statement by the registered person that the certificate is required for the purpose of considering the applicant's suitability to be employed, supplied to work, found work or given work in a position (whether paid or unpaid) within subsection (3ED) of section 113, the enhanced criminal record certificate shall also state¾
(a) whether the applicant is included in the list kept under section 33 of the Protection of Children and Vulnerable Adults Act (Northern Ireland) 2002; and
(b) if he is included in that list, such details of his inclusion as may be prescribed."
(5) In sections 119(1A) and 120A (3)(b) after "(3EA)" there shall be inserted "or (3EC)".
Supplementary
Interpretation of this Part
46.¾ (1) In this Part "care worker" means¾
(a) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom accommodation is provided at a residential care home or nursing home;
(b) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom prescribed services are provided by a health services body or at a private hospital;
(c) an individual who is or has been employed in a position which is concerned with the provision of any prescribed service in their own homes for persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance.
(2) In this Part "care position", in relation to an individual, means a position such as is mentioned in subsection (1)(a), (b) or (c).
(3) In this Part "harm"¾
(a) in relation to an adult who is not mentally handicapped (within the meaning of the Mental Health (Northern Ireland) Order 1986 (NI 4)), means ill-treatment or the impairment of health;
(b) in relation to an adult who is mentally handicapped, means ill-treatment or impairment of health or development.
(4) In this Part "health services body" means a Health and Social Services Board, a Health and Social Services trust or a special health and social services agency.
(5) In this Part "supply worker"¾
(a) in relation to an employment agency or nursing agency, means an individual supplied by the agency for employment in a care position or for whom the agency has found employment in a care position;
(b) in relation to an employment business, means an individual supplied by the business for employment in a care position.
(6) In this Part "vulnerable adult" means¾
(a) an adult to whom accommodation and nursing or personal care are provided in a residential care home or nursing home;
(b) an adult to whom any prescribed service is provided in his own home under arrangements made by a domiciliary care agency or a prescribed person; or
(c) an adult to whom prescribed services are provided by a health services body or at a private hospital.
(7) For the purposes of this Part the persons who provide care for vulnerable adults are¾
(a) any person who carries on a residential care home or nursing home;
(b) any person who carries on a domiciliary care agency or is prescribed under subsection (6)(b);
(c) any person who carries on a private hospital which provides prescribed services; and
(d) a health services body which provides prescribed services.
(8) The Department may by regulations¾
(a) add to the list in subsection (7) any prescribed persons to whom subsection (9) applies;
(b) amend the definitions of "care worker", "care position" and "vulnerable adults" accordingly.
(9) This subsection applies to¾
(a) authorities providing services to adults in the exercise of their personal social services functions;
(b) persons who provide to adults services which are similar to services which may or must be provided by health services bodies.
(10) In its application by virtue of subsection (8), this Part shall have effect¾
(a) if the regulations so provide, as if "may" were substituted for "shall" in sections 34(1) and 35(1) and;
(b) with such other modifications as may be specified in the regulations.
(11) In this Part¾
"domiciliary care agency" has the same meaning as in Part I of the Health and Personal Social Services Act (Northern Ireland) 2001 (c. 3);
"personal care" has the same meaning as in the Registered Homes (Northern Ireland) Order 1992 (NI 20).
Transitional provisions
47.¾ (1) Where¾
(a) an individual who is or has been employed in a care position has been referred by a provider to the Department for inclusion in the Pre-Employment Consultancy Service Register;
(b) the reference has not been determined at the commencement of section 34; and
(c) any of the conditions mentioned in subsection (2), or the condition mentioned in subsection (3), of that section was fulfilled in relation to the reference,
that section shall apply as if the reference had been a reference made by the provider under subsection (1) of that section.
(2) For the purposes of subsection (1), a reference of an individual for inclusion in that Register is determined only when, following the reference¾
(a) the individual is included (otherwise than provisionally) in the Register; or
(b) the Department determines that he should not be included in it.
(3) Nothing in section 34 shall require a person who provides care for vulnerable adults to refer a care worker to the Department in any case where the dismissal, resignation, retirement, redundancy, transfer or suspension mentioned in that section took place or, as the case may be, the opinion so mentioned was formed before the commencement of that section.
(4) Nothing in section 35 shall require a person who carries on an employment agency or employment business to refer a supply worker to the Department in any case where the dismissal, resignation, retirement or redundancy mentioned in that section took place or, as the case may be, the decision so mentioned was made before the commencement of that section.
(5) Sections 36 and 37 do not apply to misconduct which occurred before the commencement of those sections.
Part III
Miscellaneous and supplementary
Social Care Tribunals
Social Care Tribunals
48.¾ (1) Part V of the Registered Homes (Northern Ireland) Order 1992 (NI 20) (Social Care Tribunals) shall have effect subject to the following provisions.
(2) Articles 30, 31, 33 and 34 (constitution, functions and procedures of Social Care Tribunals) shall apply in relation to¾
(a) an appeal or determination under section 9, 10, 11, 25, 26, 40, 41 or 42;
(b) an appeal under regulations made under section 16; and
(c) an appeal or review under regulations made under Article 70 or 88A of the Education and Libraries (Northern Ireland) Order 1986 by virtue of section 13,
as they apply in relation to an appeal mentioned in Article 30(1) of that Order.
(3) Rules made under Article 33 in relation to any appeal or determination mentioned in subsection (2)(a) or (b) may, in particular, include provision¾
(a) as to the manner in which appeals are to be instituted or applications for determinations are to be made;
(b) as to the period within which appeals are to be instituted;
(c) as to the circumstances in which applications for leave may be made;
(d) for enabling any functions which relate to applications for leave or other matters preliminary or incidental to an appeal or determination to be performed by the chairman;
(e) for the holding of hearings in private in specified circumstances;
(f) for imposing reporting restrictions in specified circumstances;
(g) as to the persons who may appear on behalf of the parties;
(h) for granting any person such discovery or inspection of documents or right to further particulars as might be granted by a county court;
(i) for obtaining a medical report in a case where the decision appealed against was made on medical grounds;
(j) for requiring persons to attend to give evidence and produce documents;
(k) for authorising the administration of oaths to witnesses;
(l) for the determination of appeals or issues or applications for leave without a hearing in specified circumstances;
(m) as to the withdrawal of appeals or applications for determinations;
(n) for the award of costs;
(o) for taxing or otherwise settling any such costs (and, in particular, for enabling such costs to be taxed in the county court);
(p) for the recording and proof of decisions and orders of the Tribunal;
(q) for enabling the Tribunal to review its decisions, or revoke or vary its orders, in such circumstances as may be determined in accordance with the rules; and
(r) for notification of the result of an appeal or determination to be given to such persons as may be specified.
(4) In subsection (3) "specified" means specified in the rules.
(5) The rules may also include provision for enabling the Tribunal to make investigations for the purposes of a determination under section 10, 11, 41 or 42; and the provision that may be made by virtue of subsection (3)(j) and (k) includes provision in relation to such investigations.
(6) Any person who without reasonable excuse fails to comply with¾
(a) any requirement imposed by the rules by virtue of subsection (3)(f);
(b) any requirement in respect of the discovery or inspection of documents imposed by the rules by virtue of subsection (3)(h); or
(c) any requirement imposed by the rules by virtue of subsection (3)(j),
is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Supplementary
Interpretation of this Act
49.¾ (1) In this Act¾
"adult" means a person who is not a child;
"child" means a person under the age of 18;
"the Children Order" means the Children (Northern Ireland) Order 1995 (NI 2);
"the Department" means the Department of Health, Social Services and Public Safety;
"director of social services" means¾
(a) a director of social services of a Health and Social Services Board; or
(b) an executive director of social work of a Health and Social Services trust;
"employment" (except in section 29) ¾
(a) means any employment, whether paid or unpaid and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract; and
(b) includes an office established by or by virtue of a prescribed statutory provision,
and references to an individual being employed shall be construed accordingly;
"employment agency" and "employment business" have the same meanings as in the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (NI 20); but no business which is an employment business shall be taken to be an employment agency;
"nursing agency" has the same meaning as in Part II of the Nursing Homes and Nursing Agencies Act (Northern Ireland) 1971 (c. 32);
"nursing home" has the meaning given by Article 16 of the Registered Homes (Northern Ireland) Order 1992 (NI 20);
"the Pre-Employment Consultancy Service Register" means the list kept under that name by the Department;
"prescribed" means prescribed by regulations;
"private hospital" has the meaning given by Article 90(2) of the Mental Health (Northern Ireland) Order 1986 (NI 4);
"regulations" means regulations made by the Department subject to negative resolution;
"residential care home" has the meaning given by Article 3 of the Registered Homes (Northern Ireland) Order 1992;
"statutory provision" has the meaning given by section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c. 33).
(2) For the purposes of this Act, an individual is made redundant if¾
(a) he is dismissed; and
(b) for the purposes of the Employment Rights (Northern Ireland) Order 1996 (NI 16) the dismissal is by reason of redundancy.
Commencement
50.¾ (1) Sections 1 to 48 (and the Schedule) come into operation on such day or days as the Department may by order appoint.
(2) An order under this section may contain such transitional provisions as the Department thinks necessary or expedient.
Short title
51. This Act may be cited as the Protection of Children and Vulnerable Adults Act (Northern Ireland) 2002.
Schedule
Meaning of "offence against a child"
1. The offences mentioned in paragraph (a) of subsection (1) of section 20 are¾
(a) an offence under section 4 of the Criminal Law Amendment Act 1885
(c. 69)(defilement of girl under 14),
(b) an offence under section 5 of that Act (defilement of girl under 17),
(c) an offence under section 6 of that Act (permitting defilement of young girls on premises),
(d) an offence under section 7 of that Act (abduction of girl with intent to have carnal knowledge),
(e) an offence under section 1 of the Infanticide Act (Northern Ireland) 1939 (c. 5)(infanticide),
(f) an offence under section 20 of the Children and Young Persons Act (Northern Ireland) 1968 (c. 34) (cruelty to children),
(g) an offence under section 21 of that Act (causing or encouraging seduction or prostitution of girl under 17),
(h) an offence under section 22 of that Act (indecent conduct towards child),
(i) an offence under section 23 of that Act (allowing child or young person to be in brothel),
(j) an offence under Article 3 of the Protection of Children (Northern Ireland) Order 1978 (NI 17)(indecent photographs of children),
(k) an offence under Article 9 of the Criminal Justice (Northern Ireland) Order 1980 (NI 10)(inciting girl under 16 to incest),
(l) an offence under Article 3 of the Child Abduction (Northern Ireland) Order 1985 (NI 17)(abduction of child by parent),
(m) an offence under Article 15 of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (NI 17)(possession of indecent photograph of child),
(n) an offence under section 3 of the Sexual Offences (Amendment) Act 2000 (c. 44) (abuse of trust).
2. The offences mentioned in paragraph (b) of that subsection are¾
(a) murder,
(b) manslaughter,
(c) rape,
(d) kidnapping,
(e) false imprisonment,
(f) an offence under section 18 or 20 of the Offences against the Person Act 1861 (c. 100) (wounding and causing grievous bodily harm),
(g) an offence under section 47 of that Act (assault occasioning actual bodily harm),
(h) an offence under section 52 of that Act (indecent assault on a female),
(i) an offence under section 53, 54 or 55 of that Act (abduction of woman or girl),
(j) an offence under section 61 or 62 of that Act (buggery, attempted buggery, assault with intent to commit buggery and indecent assault on a male),
(k) an offence under section 2 or 3 of the Criminal Law Amendment Act 1885 (c. 69) (procuring girl or woman),
(l) an offence under section 8 of that Act (unlawful detention of girl or woman with intent to have carnal knowledge).
3. A person falls within this paragraph if¾
(a) he commits an offence under section 16 of the Offences against the Person Act 1861 (c. 100) (threats to kill) by making a threat to kill a child,
(b) he commits an offence under section 1 of the Punishment of Incest Act 1908 (c. 45)(incest by a man) by having sexual intercourse with a child,
(c) she commits an offence under section 2 of that Act (incest by a woman) by allowing a child to have sexual intercourse with her,
(d) he commits an offence under section 9(1)(a) of the Theft (Northern Ireland) Act 1969 (c. 16)(burglary), by entering a building or part of a building with intent to rape a child,
(e) he commits an offence under section 4(3) of the Misuse of Drugs Act 1971 (c. 38) by¾
(i) supplying or offering to supply a Class A drug to a child,
(ii) being concerned in the supplying of such a drug to a child, or
(iii) being concerned in the making to a child of an offer to supply such a drug,
(f) he commits an offence under Article 7 of the Homosexual Offences (Northern Ireland) Order 1982 (NI 19)(procuring others to commit homosexual acts) by¾
(i) procuring a child to commit an act of buggery with any person, or
(ii) procuring any person to commit an act of buggery with a child,
(g) he commits an offence under Article 8 of that Order (living on earnings of male prostitution) by living wholly or in part on the earnings of prostitution of a child,
(h) he commits an offence under Article 122 or 123 of the Mental Health (Northern Ireland) Order 1986 (NI 4) (protection of patients) in relation to a child,
(i) he commits an offence of¾
(i) aiding, abetting, counselling, procuring or inciting the commission of an offence against a child, or
(ii) conspiring or attempting to commit such an offence.