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You are here: BAILII >> Databases >> Northern Ireland Orders in Council >> The Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 No. 1351 (N.I. 11) URL: http://www.bailii.org/nie/legis/num_orders/2007/20071351.html |
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Made | 2nd May 2007 | ||
Laid | 9th May 2007 | ||
Coming into operation in accordance with Article 1(2) and (3) |
1. | Title and commencement |
2. | Interpretation |
3. | Vulnerable adults |
4. | Family and personal relationships |
5. | The Independent Barring Board |
6. | Barred lists |
7. | Barred persons |
8. | Appeals |
9. | Regulated activity |
10. | Regulated activity providers |
11. | Barred person not to engage in regulated activity |
12. | Person not to engage in regulated activity unless subject to monitoring |
13. | Use of barred person for regulated activity |
14. | Use of person not subject to monitoring for regulated activity |
15. | Regulated activity provider: failure to check |
16. | Personnel suppliers: failure to check |
17. | Educational establishments: check on members of governing body |
18. | Office holders: offences |
19. | Articles 17 and 18: checks |
20. | Exception to requirement to make monitoring check |
21. | HSS employment |
22. | Offences: companies, etc. |
23. | Offences: other persons |
24. | Article 23: exclusions and defences |
25. | Controlled activity relating to children |
26. | Controlled activity relating to vulnerable adults |
27. | Controlled activity: regulations |
28. | Monitoring |
29. | Monitoring fees |
30. | Ceasing monitoring |
31. | Prohibition of requirement to produce certain records |
32. | Provision of vetting information |
33. | Meaning of relevant information in Article 32 |
34. | Notification of cessation of monitoring |
35. | Cessation of registration |
36. | Declarations under Articles 32 and 34 |
37. | Regulated activity providers: duty to refer |
38. | Personnel suppliers: duty to refer |
39. | Regulated activity providers: duty to provide information on request etc. |
40. | Duty to provide information: offences |
41. | Education and Library Boards and HSS Bodies: duty to refer |
42. | Education and Library Boards and HSS bodies: duty to provide information on request |
43. | Registers: duty to refer |
44. | Registers: duty to provide information on request |
45. | Registers: notice of barring and cessation of monitoring |
46. | Registers: power to apply for vetting information |
47. | Supervisory authorities: duty to refer |
48. | Supervisory authorities: duty to provide information on request |
49. | Supervisory authorities: power to apply for vetting information |
50. | Supervisory authorities: notification of barring, etc in respect of children |
51. | Supervisory authorities: notification of barring, etc. in respect of vulnerable adults |
52. | Provision of information to supervisory authorities |
53. | Crown application |
54. | Referrals: findings of fact immaterial |
55. | Fostering |
56. | Alignment with rest of UK |
57. | Damages |
58. | Orders and regulations |
59. | Transitional provision |
60. | Amendments and repeals |
61. | Supplementary, incidental, consequential etc. provision |
Schedule 1 | Barred lists |
Part I | Children's barred list |
Part II | Adults' barred list |
Part III | Supplementary |
Schedule 2 | Regulated activity |
Part I | Regulated activity relating to children |
Part II | Regulated activity relating to vulnerable adults |
Part III | The period condition |
Schedule 3 | Appropriate verification |
Part I | Default Position |
Part II | Prescribed verification |
Part III | Prescribed verification |
Part IV | Definitions and power to amend |
Schedule 4 | Employment businesses: failure to check |
Schedule 5 | Vetting information |
Schedule 6 | Transitional provisions |
Schedule 7 | Amendments |
Schedule 8 | Repeals |
(2) A reference (however expressed) to a person being barred must be construed in accordance with Article 7.
(3) A reference to a person being subject to monitoring in relation to a regulated activity must be construed in accordance with Article 28.
(4) Nothing in this Order affects any power to provide information which exists apart from this Order.
Vulnerable adults
3.
—(1) A person is a vulnerable adult if he has attained the age of 18 and—
(2) Residential accommodation is accommodation provided for a person—
(10) A person requires assistance in the conduct of his own affairs if—
(11) The Secretary of State may by order provide that a person specified in the order or of a description so specified who falls within paragraph (1) is not to be treated as a vulnerable adult.
Family and personal relationships
4.
—(1) This Order does not apply to any activity which is carried out in the course of a family relationship.
(2) This Order does not apply to any activity which is carried out—
(3) A family relationship includes a relationship between two persons who—
The Independent Barring Board
5.
In this Order references to IBB are references to the Independent Barring Board established by section 1 of the Safeguarding Vulnerable Groups Act 2006 (c. 47).
Barred lists
6.
—(1) IBB must establish and maintain—
(2) Part I of Schedule 1 applies for the purpose of determining whether an individual is included in the children's barred list.
(3) Part II of that Schedule applies for the purpose of determining whether an individual is included in the adults' barred list.
(4) Part III of that Schedule contains supplementary provision.
(5) In respect of an individual who is included in a barred list, IBB must keep other information of such description as is prescribed.
Barred persons
7.
—(1) A reference to a person being barred from regulated activity must be construed in accordance with this Article.
(2) A person is barred from regulated activity relating to children if he is—
(3) A person is barred from regulated activity relating to vulnerable adults if he is—
Appeals
8.
—(1) An individual who is included in a barred list may appeal to the Care Tribunal against—
(2) An appeal under paragraph (1) may be made only on the grounds that IBB has made a mistake—
(7) If the Care Tribunal remits a matter to IBB under paragraph (6)(b)—
(4) The provisions are—
Regulated activity providers
10.
—(1) A reference to a regulated activity provider must be construed in accordance with this Article.
(2) A person (P) is a regulated activity provider if—
(2) A person guilty of an offence under paragraph (1) is liable—
(3) It is a defence for a person charged with an offence under paragraph (1) to prove that he did not know, and could not reasonably be expected to know, that he was barred from that activity.
(4) It is a defence for a person charged with an offence under paragraph (1) to prove—
(5) For the purposes of this Article, Schedule 2 is modified as follows—
Person not to engage in regulated activity unless subject to monitoring
12.
—(1) An individual commits an offence if—
(2) An individual commits an offence if—
(3) An individual commits an offence if—
(12) Paragraph (11) does not apply in respect of an appointment which continues to have effect after such date as the Secretary of State specifies by order.
(13) It is a defence for a person charged with an offence under paragraph (1), (2) or (3) to prove that he did not know, and could not reasonably be expected to know, that he was not subject to monitoring in relation to the activity.
(14) In determining what is the appropriate sentence to pass in respect of a person who is convicted of an offence under this Article in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 2 the court must consider the extent to which the offender had regard to any guidance issued by the Secretary of State as to the circumstances in which an activity is carried out frequently.
Use of barred person for regulated activity
13.
—(1) A person commits an offence if—
(2) A personnel supplier commits an offence if—
(3) A person guilty of an offence under this Article is liable—
(4) It is a defence for a person charged with an offence under this Article to prove—
(5) For the purposes of this Article, Schedule 2 is modified as follows—
Use of person not subject to monitoring for regulated activity
14.
—(1) A regulated activity provider commits an offence if—
(2) A personnel supplier commits an offence if—
(3) For the purposes of paragraph (2)(b), Schedule 2 is modified as follows—
(7) A person does not commit an offence under paragraph (1) if—
(10) In determining what is the appropriate sentence to pass in respect of a person who is convicted of an offence under this Article in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 2 the court must consider the extent to which the offender had regard to any guidance issued by the Secretary of State as to the circumstances in which an activity is carried out frequently.
(11) A person is not guilty of an offence by virtue of paragraph (2) in relation to any period during which B is continuously supplied to another if the period begins before the commencement of this Article.
(12) Paragraph (11) does not have effect in respect of permission which continues to have effect after such date as the Secretary of State specifies by order.
Regulated activity provider: failure to check
15.
—(1) A regulated activity provider commits an offence if—
(2) A regulated activity provider ascertains whether B is subject to monitoring only if—
(3) A person does not commit an offence under paragraph (1) if the regulated activity—
(9) A person guilty of an offence under paragraph (1) or (8) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(10) In determining what is the appropriate sentence to pass in respect of a person who is convicted of an offence under this Article in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 2 the court must consider the extent to which the offender had regard to any guidance issued by the Secretary of State as to the circumstances in which an activity is carried out frequently.
Personnel suppliers: failure to check
16.
—(1) Schedule 4 (employment businesses: failure to check) has effect.
(2) The Secretary of State may by order make provision (including provision amending this Order) corresponding to Schedule 4 in relation to the supply of persons by a personnel supplier otherwise than in the course of carrying on an employment business.
Educational establishments: check on members of governing body
17.
—(1) The appropriate officer (P) commits an offence if he fails in the prescribed period to make a check in accordance with Article 19 relating to any person (B) who is appointed to the governing body of an educational establishment mentioned in Article 12(5).
(2) A person guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(3) A person does not commit an offence under paragraph (1) if, in relation to any continuous period for which B is a member of the governing body of the establishment—
(4) Paragraph (3) does not apply in respect of an appointment which continues to have effect after such date as the Secretary of State specifies by order.
(5) An appropriate officer is such person as is prescribed.
Office holders: offences
18.
—(1) The Secretary of State may by regulations provide that a person commits an offence if—
(2) The Secretary of State may by regulations provide that a prescribed person (P) commits an offence if he fails in the prescribed period to make a check in accordance with Article 19 in relation to another person (B) appointed to a position mentioned in paragraph 4(1) or 8(1) of Schedule 2.
(3) Regulations under paragraph (1) or (2) may provide for defences to the offence.
(4) An offence created by regulations under this Article is punishable on summary conviction with a maximum fine not exceeding level 5 on the standard scale.
Articles 17 and 18: checks
19.
—(1) This Article has effect for the purposes of Articles 17 and 18.
(2) P makes a check in accordance with this Article if—
(3) P makes a check in accordance with this Article if—
(5) In paragraph (2)(a) "relevant information" means—
(7) In this Article "enhanced criminal record certificate" means—
Exception to requirement to make monitoring check
20.
—(1) Regulated activity falls within this Article if it is carried out for the purposes of or in connection with any of the following—
(5) In this Article "welfare services"—
(8) A date specified under paragraph (7)(b) must be not more than three years after—
(9) The Secretary of State may by order amend or omit any sub-paragraph of paragraph (1).
HSS employment
21.
—(1) A regulated activity provider falls within this Article if—
(2) Relevant HSS employment is employment—
Offences: companies, etc.
22.
—(1) For the purposes of an offence under Article 13, 14, 15, 27, 31 or 40 or Schedule 4, section 20(2) of the Interpretation Act (Northern Ireland) 1954 (c. 33) applies with the omission of the words "the liability of whose members is limited" and where the affairs of a body corporate are managed by its members, applies in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(2) If an offence under Article 13, 14, 15, 27, 31 or 40 or Schedule 4 is committed by a partnership (whether or not a limited partnership) and is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of—
he (as well as the partnership) commits the offence.
Offences: other persons
23.
—(1) A person commits an offence if, in the course of acting or appearing to act on behalf of a regulated activity provider—
(9) In determining what is the appropriate sentence to pass in respect of a person who is convicted of an offence under paragraph (1) in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 2 the court must consider the extent to which the offender had regard to any guidance issued by the Secretary of State as to the circumstances in which an activity is carried out frequently.
Article 23: exclusions and defences
24.
—(1) A person does not commit an offence under Article 23 if B has not attained the age of 16.
(2) A person does not commit an offence under Article 23 if the regulated activity—
(4) An activity falls within this paragraph if—
(5) An activity falls within this paragraph if—
(6) An activity falls within this paragraph if it is carried out as mentioned in paragraph (10) frequently and it gives a person carrying out the activity the opportunity to have access to—
(7) An activity falls within this paragraph if it consists in or involves on a regular basis the day to day management or supervision of a person carrying out an activity which falls within paragraph (3), (4) or (6).
(8) This paragraph applies to health care, treatment or therapy which is provided for a child—
(9) The opportunities are—
(10) The activity is carried out—
(11) In this Article "personal social services records" means records obtained or held by an HSS body in the exercise of its functions relating to personal social services.
(12) The Secretary of State may, by order, amend paragraphs (2) to (11) (including by adding new paragraphs or omitting or varying any of the paragraphs or anything contained in them).
Controlled activity relating to vulnerable adults
26.
—(1) A reference to a controlled activity relating to vulnerable adults must be construed in accordance with this Article.
(2) An activity which is ancillary to or is carried out wholly or mainly in relation to an activity which falls within paragraph (4) is a controlled activity to the extent that it is not a regulated activity relating to vulnerable adults if—
Controlled activity: regulations
27.
—(1) The Secretary of State may, by regulations, make provision as to—
(3) A person is a responsible person if—
Monitoring
28.
—(1) An individual is subject to monitoring in relation to regulated activity if—
(2) A monitoring application must specify whether it is in respect of—
(3) On a monitoring application being made the Secretary of State must—
(4) The Secretary of State must—
(13) Relevant information is new if it was not discovered when any earlier inquiries under this Article were carried out.
(14) References to a relevant police force must be construed in accordance with section 113B of the Police Act 1997 as if an application under this Article were an application under that section.
Monitoring fees
29.
—(1) This Article has effect in respect of fees which may be prescribed in relation to applications for monitoring under Article 28.
(2) In setting a fee for an application made during the period of 5 years beginning with the commencement of that Article, the Secretary of State may take account of expenditure incurred, or which he thinks will be incurred, by him before the end of that period (taking one financial year with another)—
(4) For the purposes of paragraph (2), it is immaterial that any expenditure is incurred before the commencement of Article 28.
(5) The power to prescribe fees is exercisable only with the consent of the Treasury.
(6) Fees received by the Secretary of State by virtue of Article 28(1)(d) must be paid into the Consolidated Fund of the United Kingdom.
Ceasing monitoring
30.
—(1) The Secretary of State may cease monitoring as mentioned in Article 28 in relation to an individual in such circumstances as are prescribed.
(2) The Secretary of State must cease such monitoring in relation to an individual who—
Prohibition of requirement to produce certain records
31.
—(1) A person (P) must not, in connection with—
whether or not he is entitled to remuneration; and "employment" must be construed accordingly.
(2) The appropriate declaration is a declaration by A—
(3) In this Article references to a specified entry are to an entry in the table in Schedule 5 specified by A in his declaration.
(4) The information is—
(5) Sub-paragraph (b) of paragraph (2) does not apply if the specified entry is 17.
(6) If B consents to the provision of information to A in relation to an application under this Article, the consent also has effect in relation to any subsequent such application by A.
(7) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article (including the form and manner of a declaration contained in such an application).
(8) The Secretary of State may by regulations make provision requiring an authority which makes or proposes to make payments to or on behalf of a person in accordance with regulations under Article 18C of the Children Order or section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002 (c.6) to inform the person of his right to obtain relevant information under this Article.
Meaning of relevant information in Article 32
33.
—(1) This Article has effect for the purposes of Article 32.
(2) Relevant information relating to children is—
(3) Relevant information relating to vulnerable adults is—
(4) B is undergoing assessment if—
(5) In paragraph (4)(b) "simultaneous application" means an application made simultaneously with B's monitoring application under Article 28.
(6) The Secretary of State may by order amend the preceding provisions of this Article for the purpose of altering the meaning of relevant information relating to children or vulnerable adults (as the case may be).
Notification of cessation of monitoring
34.
—(1) The Secretary of State must establish and maintain a register for the purposes of this Article.
(2) The Secretary of State must register a person (A) in relation to another (B) if—
(3) The appropriate declaration is a declaration by A—
(6) The Secretary of State must notify A if B ceases to be subject to monitoring in relation to the regulated activity to which A's registration relates.
(7) The requirement under paragraph (6) is satisfied if notification is sent to any address recorded against A's name in the register.
(8) Sub-paragraph (b) of paragraph (3) does not apply if the specified entry is 17.
(9) If B consents to the provision of information to A under Article 32 the consent also has effect as consent to any application by A to be registered in relation to B under this Article.
(10) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article (including the form and manner of a declaration contained in such an application).
Cessation of registration
35.
—(1) In this Article references to registration are to registration in the register maintained for the purposes of Article 34.
(2) Once a person is notified as mentioned in paragraph (6) of that Article, his registration ceases.
(3) The Secretary of State may cancel a person's registration in such circumstances as are prescribed.
(4) The Secretary of State must cancel a person's registration—
(5) When a person's registration is cancelled under paragraph (3) or (4)(b), the Secretary of State must notify him of that fact.
(6) The requirement under paragraph (5) is satisfied if notification is sent to any address recorded against A's name in the register.
Declarations under Articles 32 and 34
36.
—(1) An individual commits an offence if, in an application made for the purposes of Article 32 or 34—
(2) A person guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Regulated activity providers: duty to refer
37.
—(1) Paragraph (2) applies to—
(2) A person to whom this paragraph applies must provide IBB with the information if—
(3) The reasons are that the person to whom paragraph (2) applies thinks—
(4) The harm test is that P may—
paragraph (2) must be read as if for "must" there were substituted "may".
(7) This Article does not apply if the conditions specified in paragraph (2) are fulfilled before the Article is commenced.
Personnel suppliers: duty to refer
38.
—(1) A personnel supplier must provide IBB with any prescribed information it holds in relation to a person (P) who has been supplied by it to another person if the supplier knows that P has ceased to be engaged in regulated activity or controlled activity in the circumstances mentioned in paragraph (2)(a) or (b) of Article 37.
(2) A personnel supplier which is an employment agency or employment business must provide IBB with any prescribed information it holds in relation to a person (P) for whom it acts if—
(4) The reasons are that the personnel supplier thinks—
(5) The harm test is that P may—
(8) An employment business acts for a person if it employs him to act for and under the control of other persons in any capacity.
(9) In this Article "employment" has the same meaning as in Part II of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (NI 20).
(10) This Article does not apply if the conditions specified in paragraph (1), (2) or (3) are fulfilled before the Article is commenced.
Regulated activity providers: duty to provide information on request etc.
39.
—(1) This Article applies if IBB is considering—
(4) Relevant employment is employment which consists in or involves engaging in regulated or controlled activity.
(5) An employment business acts for a person if it employs him to engage in regulated or controlled activity for and under the control of other persons.
(6) In this Article "employment" has the same meaning as in Part II of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (NI 20).
Duty to provide information: offences
40.
—(1) A person commits an offence if—
(3) The harm test is that the person may—
(4) The second condition is that the board or HSS body thinks—
(5) A board or an HSS body may provide IBB with any prescribed information it holds relating to a person if—
(6) For the purposes of paragraphs (2)(b) or (5)(a), conduct is inappropriate if it appears to the board or HSS body to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 1.
Education and Library Boards and HSS bodies: duty to provide information on request
42.
—(1) This Article applies if IBB is considering—
(3) The harm test is that the person may—
(4) The second condition is that the keeper thinks—
(5) A keeper of a relevant register may provide IBB with any prescribed information he holds relating to a person if—
(6) For the purposes of paragraph (2)(b) or (5)(a), conduct is inappropriate if it appears to the keeper to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 1.
(7) In this Article—
Relevant register | Keeper of the register |
1.
The register of teachers maintained under Article 35 of the Education (Northern Ireland) Order 1998 (NI 13) |
The General Teaching Council for Northern Ireland |
2.
The register of pharmaceutical chemists maintained under Article 6 of the Pharmacy (Northern Ireland) Order 1976 (NI 22) |
The registrar appointed under Article 9(1) of that Order |
3.
Either of the lists of medical practitioners kept under section 2 of the Medical Act 1983 (c. 54) |
The registrar of the General Medical Council |
4.
The dentists register kept under section 14 of the Dentists Act 1984 (c. 24) or the dental care professionals register kept under section 36B of that Act |
The registrar appointed under section 14 of that Act |
5.
The register of optometrists or the register of dispensing opticians maintained under section 7 of the Opticians Act 1989 (c. 44), or the register of persons undertaking training as optometrists or the register of persons undertaking training as dispensing opticians maintained under section 8A of that Act |
The registrar of the General Optical Council |
6.
The register of osteopaths maintained under section 2 of the Osteopaths Act 1993 (c. 21) |
The Registrar of Osteopaths |
7.
The register of chiropractors maintained under section 2 of the Chiropractors Act 1994 (c. 17) |
The Registrar of Chiropractors |
8.
The register of social workers and social care workers maintained under section 3 of the Health and Personal Social Services Act (Northern Ireland) 2001 (c.3) |
The Northern Ireland Social Care Council |
9.
The register of qualified nurses and midwives maintained under Article 5 of the Nursing and Midwifery Order 2001 (S.I. 2002/253) |
The registrar appointed under Article 4 of that Order |
10.
The register of members of relevant professions maintained under Article 5 of the Health Professions Order 2001 (S.I. 2002/254) |
The registrar appointed under Article 4 of that Order |
(8) The Secretary of State may by order amend the table in paragraph (7) by inserting an entry or amending or omitting an entry for the time being contained in the Table.
Registers: duty to provide information on request
44.
—(1) This Article applies if IBB is considering—
(2) IBB may require the keeper of the register to provide it with any prescribed information he holds relating to the person.
(3) The keeper of the register must comply with a requirement under paragraph (2).
(4) References to a relevant register and the keeper of a relevant register must be construed in accordance with Article 43(7).
Registers: notice of barring and cessation of monitoring
45.
—(1) Paragraph (2) applies if the Secretary of State knows or thinks that a person (A) appears on a relevant register and either—
(2) The Secretary of State must—
(5) But, in that paragraph, relevant information does not include—
(7) A person is subject to a relevant disqualification if he is included in a list maintained under the law of England and Wales or Scotland which the Secretary of State specifies by order as corresponding to a barred list.
Registers: power to apply for vetting information
46.
—(1) If the keeper of a relevant register applies to the Secretary of State for information within paragraph (2) in relation to a person (B), the Secretary of State must provide the keeper of the register with that information.
(2) The information within this paragraph is—
(5) In paragraph (2)(e) "simultaneous application" means an application made simultaneously with B's monitoring application under Article 28.
(6) The Secretary of State may by order amend this Article for the purpose of altering the information within paragraph (2).
(7) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article.
Supervisory authorities: duty to refer
47.
—(1) A supervisory authority must provide IBB with any prescribed information it holds relating to a person if the first and second conditions are satisfied.
(2) The first condition is that the supervisory authority thinks, on the basis of relevant evidence—
(3) The harm test is that the person may—
(4) The second condition is that the supervisory authority thinks—
(8) Relevant evidence is evidence obtained by the supervisory authority in the exercise of the functions mentioned in paragraph (7).
(9) The Secretary of State may by order amend paragraph (7) by inserting a sub-paragraph or amending or omitting a sub-paragraph for the time being contained in that paragraph.
(10) For the purposes of paragraph (2)(b) or (5)(a), conduct is inappropriate if it appears to the supervisory authority to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 1.
Supervisory authorities: duty to provide information on request
48.
—(1) This Article applies if IBB is considering—
(2) IBB may require the supervisory authority to provide it with any prescribed information it holds relating to the person.
(3) The supervisory authority must comply with a requirement under paragraph (2).
Supervisory authorities: power to apply for vetting information
49.
—(1) If a supervisory authority applies to the Secretary of State for information within paragraph (2) or (3) relating to a person (B), the Secretary of State must provide the supervisory authority with that information.
(2) The information within this paragraph is—
(3) The information within this paragraph is—
(4) A supervisory authority may apply for information under this Article only if the information is required in connection with the exercise of a function of the supervisory authority mentioned in Article 47(7).
(5) In paragraphs (2)(e) and (3)(e), "simultaneous application" means an application made simultaneously with B's monitoring application under Article 28.
(6) The Secretary of State may by order amend this Article for the purpose of altering the information within paragraph (2) or (3).
(7) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article.
Supervisory authorities: notification of barring, etc in respect of children
50.
—(1) This Article applies if—
(4) A supervisory authority may apply to the Secretary of State under paragraph (3)(a) only if the notification is required in connection with the exercise of a function of the supervisory authority mentioned in Article 47(7).
(5) For the purposes of paragraph (3)(b) an application is withdrawn if the supervisory authority notifies the Secretary of State that it no longer wishes to be notified if any of the circumstances mentioned in paragraph (1) occurs in relation to the person.
(6) A person is subject to a relevant children's disqualification if he is included in a list maintained under the law of England and Wales or Scotland which the Secretary of State specifies by order as corresponding to the children's barred list.
(7) The Secretary of State may provide that in prescribed circumstances a supervisory authority is not an interested supervisory authority for the purposes of this Article.
(8) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article.
Supervisory authorities: notification of barring, etc. in respect of vulnerable adults
51.
—(1) This Article applies if—
(4) A supervisory authority may apply to the Secretary of State under paragraph (3)(a) only if the notification is required in connection with the exercise of a function of the supervisory authority mentioned in Article 47(7).
(5) For the purposes of paragraph (3)(b) an application is withdrawn if the supervisory authority notifies the Secretary of State that it no longer wishes to be notified if any of the circumstances mentioned in paragraph (1) occurs in relation to the person.
(6) A person is subject to a relevant adults' disqualification if he is included in a list maintained under the law of England and Wales or Scotland which the Secretary of State specifies by order as corresponding to the adults' barred list.
(7) The Secretary of State may provide that in prescribed circumstances a supervisory authority is not an interested supervisory authority for the purposes of this Article.
(8) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article.
Provision of information to supervisory authorities
52.
—(1) This Article applies if IBB has information that it thinks is relevant to a supervisory authority.
(2) IBB must provide the supervisory authority with the information.
(3) Information is relevant to a supervisory authority if—
(6) In paragraph (5) "body" includes office-holder.
Referrals: findings of fact immaterial
54.
—(1) For the purposes of the provisions mentioned in paragraph (2), it is immaterial whether there is a finding of fact in any proceedings.
(2) The provisions are—
Fostering
55.
—(1) Despite Article 4, this Order applies to activity that is regulated activity by virtue of paragraph 1(5) of Schedule 2.
(2) Paragraph (1) does not affect the operation of this Order in relation to any other activity that is carried out in connection with a foster child.
(3) Paragraph (4) applies if a person (P)—
(8) A person is a private foster parent if he falls within paragraph (9) and looks after a child—
(9) A person falls within this paragraph if—
(10) A person's family includes—
and references to a family relationship and family member are to be construed accordingly.
Alignment with rest of UK
56.
—(1) The Secretary of State may, by order, make such provision (including provision amending any statutory provision, including this Order) as he thinks necessary or expedient in consequence of or having regard to any relevant England and Wales legislation or any relevant Scottish legislation.
(2) An order may—
(2) Paragraph (1)(c) does not apply to the provision of information which is untrue by a person who knows the information is untrue and either—
(3) Nothing in this Order affects section 8 of the Human Rights Act 1998 (c. 42) as it relates to the power of a court to award damages in respect of an unlawful act of a public authority (within the meaning of that Act).
Orders and regulations
58.
—(1) Orders or regulations under this Order shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly.
(2) Paragraph (1) does not apply to an order made under Article 1, including such an order which contains provision made under Article 61 (except paragraph (3) of that Article).
Transitional provision
59.
Schedule 6 has effect.
Amendments and repeals
60.
—(1) Schedule 7 contains amendments.
(2) Schedule 8 contains repeals.
Supplementary, incidental, consequential etc. provision
61.
—(1) An order or regulations under this Order may include—
(4) If it appears to IBB that it is not appropriate for the person to be included in the list, it must remove him from the list.
(2) IBB must give the person the opportunity to make representations as to why he should not be included in the children's barred list.
(3) IBB must include the person in the children's barred list if—
(4) This paragraph does not apply to a person if the relevant conduct consists only of an offence committed against a child before the commencement of Article 6 and the court, having considered whether to make a disqualification order, decided not to.
(5) In sub-paragraph (4)—
4.
—(1) For the purposes of paragraph 3 relevant conduct is—
(2) A person's conduct endangers a child if he—
(3) "Sexual material relating to children" means—
(4) "Image" means an image produced by any means, whether of a real or imaginary subject.
(5) A person does not engage in relevant conduct merely by committing an offence prescribed for the purposes of this sub-paragraph.
(6) For the purposes of sub-paragraph (1)(d) and (e), IBB must have regard to guidance issued by the Secretary of State as to conduct which is inappropriate.
(2) IBB must give the person the opportunity to make representations as to why he should not be included in the children's barred list.
(3) IBB must include the person in the children's barred list if—
(4) A person falls within this sub-paragraph if he may—
6.
—(1) IBB must not include a person in the children's barred list—
(2) A relevant Scottish authority is such authority as the Secretary of State specifies by order as exercising for the purposes of the law of Scotland functions which correspond to those of IBB.
(3) A corresponding list is a list maintained for the purposes of the law of Scotland which the Secretary of State specifies by order as corresponding to the children's barred list.
(4) If it appears to IBB that it is not appropriate for the person to be included in the list, it must remove him from the list.
(2) IBB must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.
(3) IBB must include the person in the adults' barred list if—
10.
—(1) For the purposes of paragraph 9 relevant conduct is—
(2) A person's conduct endangers a vulnerable adult if he—
(3) "Sexual material relating to children" means—
(4) "Image" means an image produced by any means, whether of a real or imaginary subject.
(5) A person does not engage in relevant conduct merely by committing an offence prescribed for the purposes of this sub-paragraph.
(6) For the purposes of sub-paragraph (1)(d) and (e), IBB must have regard to guidance issued by the Secretary of State as to conduct which is inappropriate.
(2) IBB must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.
(3) IBB must include the person in the adults' barred list if—
(4) A person falls within this sub-paragraph if he may—
12.
—(1) IBB must not include a person in the adults' barred list—
(2) A relevant Scottish authority is such authority as the Secretary of State specifies by order as exercising for the purposes of the law of Scotland functions which correspond to those of IBB.
(3) A corresponding list is a list maintained for the purposes of the law of Scotland which the Secretary of State specifies by order as corresponding to the adults' barred list.
(5) The Secretary of State may by order amend sub-paragraph (4) by inserting a paragraph or amending or omitting a paragraph for the time being contained in the sub-paragraph.
17.
—(1) This paragraph applies to a person who is included in a barred list (except a person included in pursuance of paragraph 1 or 7) if, before he was included in the list, IBB was unable to ascertain his whereabouts.
(2) This paragraph also applies to such a person if—
(3) If a person to whom this paragraph applies makes such representations after the prescribed time—
(4) For the purposes of this paragraph, it is immaterial that any representations mentioned in sub-paragraph (3) relate to a time after the person was included in the list concerned.
(4) IBB must not grant permission unless it thinks—
(5) On a review of a person's inclusion, if IBB is satisfied that it is no longer appropriate for him to be included in the list it must remove him from it; otherwise it must dismiss the application.
(6) The minimum barred period is the prescribed period beginning with such of the following as may be prescribed—
19.
—(1) IBB may require—
(2) For the purposes of sub-paragraph (1)(a), relevant information relating to a person is information which the person holding the records thinks might be relevant in relation to the regulated activity concerned.
(3) For the purposes of sub-paragraph (1)(c), relevant information relating to a person is information which the chief officer thinks might be relevant in relation to the regulated activity concerned.
(4) IBB must pay to the appropriate police authority such fee as the Secretary of State thinks appropriate for information provided to IBB in accordance with sub-paragraph (1)(c).
(5) For the purpose of deciding under this Schedule whether or not a person is included in a barred list IBB must not take account of relevant police information if the chief officer of the relevant police force thinks that it would not be in the interests of the prevention or detection of crime to disclose the information to the person.
(6) In sub-paragraph (5) relevant police information is information which falls within sub-paragraph (3), whether it is obtained by IBB in pursuance of subparagraph (1)(c) or paragraph 20(2).
(7) In this paragraph—
(8) If IBB so requests, the Secretary of State must inform IBB which police forces are relevant police forces in relation to a person.
20.
—(1) The Department of Health, Social Services and Public Safety may provide to IBB any information relating to a person which is held by that Department in connection with its functions under Part II or III of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003.
(2) The Department of Education may provide to IBB any information relating to a person which is held by that Department in connection with its functions under Articles 70(2)(e)(iii) and 88A(2)(b)(iii) of the Education and Libraries (Northern Ireland) Order 1986 (NI 3).
(3) The Secretary of State must provide to IBB any information relating to a person which is held by him in connection with his functions under this Order (except information he holds relating to an offence prescribed for the purposes of paragraph 4(5) or 10(5) of this Schedule).
21.
IBB must provide the Secretary of State with the prescribed information relating to a person if—
22.
The Secretary of State must inform the Scottish Ministers if a person is included in a barred list.
23.
IBB may—
24.
—(1) The criteria which may be prescribed for the purposes of paragraphs 1, 2, 7 and 8 are—
(2) The power to specify offences for the purposes of sub-paragraph (1) includes power to specify offences under—
(3) The Secretary of State may specify a list for the purposes of sub-paragraph (1)(c) only if he thinks that inclusion in the list has a corresponding or similar effect to inclusion in a barred list.
(4) For the purposes of determining whether any of the criteria is satisfied in relation to a person, ignore—
(5) The criteria which may be prescribed for the purposes of paragraph 1 or 2 must not consist only of circumstances in which the person has committed an offence against a child before the commencement of Article 6 if the court, having considered whether to make a disqualification order, decided not to.
(6) In sub-paragraph (5)—
(7) For the purposes of sub-paragraph (4) an offence committed over a period of time must be treated as committed on the last day of the period.
(8) For the purpose of considering whether the criteria apply to an individual, the Secretary of State must, from time to time, examine records of convictions or cautions held for the use of police forces generally.
(9) Sub-paragraph (8) does not apply to records of convictions made, or cautions given, before such date as is prescribed.
25.
A court by or before which a person is convicted of an offence of a description specified for the purposes of paragraph 24(1)(a), or which makes an order of a description specified for the purposes of paragraph 24(1)(b), must inform the person at the time he is convicted or the order is made that IBB will include him in the barred list concerned.
(2) An activity is a regulated activity relating to children if—
(3) Each of the following is a regulated activity relating to children—
(4) Any expression used both in sub-paragraph (3) and in Part XI of the Children Order has the meaning given by that Order.
(5) It is a regulated activity relating to children to foster a child (as mentioned in Article 55).
(6) The exercise of a function of a guardian ad litem appointed under Article 60 of the Children Order is a regulated activity relating to children.
(7) The exercise of a function of a person mentioned in paragraph 4(1) is a regulated activity relating to children.
(8) The exercise of a function of any of the following so far as it relates to the inspection of an establishment mentioned in paragraph 3(1) is a regulated activity relating to children—
(9) The exercise of a function of the Regulation and Improvement Authority so far as it relates to the inspection of an establishment, agency or body falling within sub-paragraph (10) is a regulated activity relating to children.
(10) An establishment, agency or body falls within this sub-paragraph if it is—
and it provides any form of treatment or therapy for children.
(11) In sub-paragraph (10)(c) the reference to an HSS body includes a reference to any person who provides, or is to provide, health care for the body (wherever the health care is or is to be provided).
(12) Any activity which consists in or involves on a regular basis the day to day management or supervision of a person carrying out an activity mentioned in sub-paragraph (1), (2), (6), (8) or (9) is a regulated activity relating to children.
(2) Sub-paragraph (1)(a), (b), (c) and (d) do not include—
(3) Sub-paragraph (2) does not apply if—
(4) For the purposes of sub-paragraph (1)(e) a person moderates a public electronic interactive communication service if, for the purpose of protecting children, he has any function relating to—
(5) But a person does not moderate a public electronic interactive communications service as mentioned in sub-paragraph (4)(b) or (c) unless he has—
(6) In sub-paragraph (2) employment includes any form of work which is carried out under the supervision or control of another, whether or not the person carrying it out is paid for doing so.
(2) Relevant childcare premises are any part of premises on which a person acts as child minder or provides day care in respect of which he must be registered under Article 118 of the Children Order.
(2) A charity is a children's charity if the individuals who are workers for the charity normally include individuals engaging in regulated activity relating to children.
(3) 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 sub-paragraph do not include any arrangements made for purposes which are merely incidental to the purposes for which the charity is established.
5.
A person who is part of a group in relation to which another (P) engages in regulated activity relating to children does not engage in regulated activity only because he assists P or does anything on behalf of or under the direction of P which, but for this paragraph, would amount to engaging in regulated activity relating to children.
(2) For the purposes of sub-paragraph (1)(e) a person moderates a public electronic interactive communication service if, for the purpose of protecting vulnerable adults, he has any function relating to—
(3) But a person does not moderate a public electronic interactive communications service as mentioned in sub-paragraph (2)(b) or (c) unless he has—
(4) An activity carried out in a residential care home or nursing home (for the purposes of the 2003 Order) which is exclusively or mainly for vulnerable adults is a regulated activity relating to vulnerable adults if—
(5) Any activity which consists in or involves on a regular basis the day to day management or supervision of a person carrying out an activity mentioned in sub-paragraph (1) or (4) is a regulated activity relating to vulnerable adults.
(6) The exercise of the inspection functions of the Regulation and Improvement Authority is a regulated activity relating to vulnerable adults.
(7) Inspection functions are functions relating to the inspection of—
in so far as the inspection relates to personal social services, care, treatment or therapy provided for vulnerable adults by the body, establishment or agency.
(8) In sub-paragraph (7)(a) the reference to an HSS body includes a reference to any person who provides, or is to provide, health care for the body (wherever the health care is or is to be provided).
(9) The exercise of a function of a person mentioned in paragraph 8(1) is a regulated activity relating to vulnerable adults.
(10) A person who is part of a group in relation to which another (P) engages in regulated activity relating to vulnerable adults does not engage in regulated activity only because he assists P or does anything on behalf of or under the direction of P which, but for this sub-paragraph, would amount to engaging in regulated activity relating to vulnerable adults.
8.
—(1) The persons referred to in paragraph 7(9) are—
(2) A charity is a vulnerable adults' charity if the individuals who are workers for the charity normally include individuals engaging in regulated activity relating to vulnerable adults.
(3) 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 sub-paragraph do not include any arrangements made for purposes which are merely incidental to the purposes for which the charity is established.
9.
The Secretary of State may, by order, provide that in such circumstances as are specified an activity which is a regulated activity in relation to vulnerable adults is not to be treated as a regulated activity.
(2) "Relevant information" means—
2.
—(1) A regulated activity provider obtains an appropriate verification in accordance with this Part if—
(2) The information is—
3.
—(1) This paragraph applies if—
(2) The regulated activity provider mentioned in sub-paragraph (1)(a) obtains an appropriate verification in accordance with this Part if, during the prescribed period, he obtains written confirmation from C—
4.
—(1) This paragraph applies if—
(2) The regulated activity provider obtains an appropriate verification in accordance with this Part if, during the prescribed period, he obtains written confirmation from the personnel supplier—
6.
—(1) This paragraph applies if—
(2) The regulated activity provider mentioned in sub-paragraph (1)(a) obtains an appropriate verification in accordance with this Part if he obtains from C—
(3) The confirmation is written confirmation—
7.
—(1) This paragraph applies if—
(2) The regulated activity provider obtains an appropriate verification in accordance with this Part if he obtains from the personnel supplier—
(3) The confirmation is written confirmation—
(2) The regulated activity provider mentioned in sub-paragraph (1)(a) obtains an appropriate verification in accordance with this Part if he obtains from C—
(3) The confirmation is written confirmation—
10.
—(1) This paragraph applies if—
(2) The regulated activity provider obtains an appropriate verification in accordance with this Part if he obtains from the personnel supplier—
(3) The confirmation is written confirmation—
12.
For the purposes of this Schedule an enhanced criminal record certificate is issued in relation to a regulated activity provider, or personnel supplier, only if—
13.
For the purposes of this Schedule a regulated activity provider, or personnel supplier, is "appropriately registered" in relation to B if—
14.
The Secretary of State may by order amend the preceding provisions of this Schedule for the purpose of altering what constitutes obtaining an appropriate verification.
(2) P is appropriately registered in relation to B if—
(3) A person guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
2.
—(1) In such circumstances as are prescribed, a person (P) who carries on an employment business commits an offence if—
(2) For these purposes "enhanced criminal record certificate" means—
(3) An enhanced criminal record certificate is issued in relation to P only if —
(4) A person guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(2) P does not commit an offence under paragraph 1 or 2 in relation to any period during which B is continuously supplied to another if the period begins before the commencement of this Schedule.
(3) Sub-paragraph (2) does not apply in relation to a period falling after such date as the Secretary of State specifies by order.
5.
The Secretary of State may by order amend paragraph 2(1)(c) for the purpose of requiring an employment business to carry out such checks in relation to B as may be specified.
Column 1 | Column 2 |
1.
Person who permits, or is considering whether to permit, B to engage in regulated activity relating to children |
Children |
2.
Person who permits, or is considering whether to permit, B to engage in regulated activity relating to vulnerable adults |
Vulnerable adults |
3.
Person who permits, or is considering whether to permit B to engage in controlled activity relating to children |
Children |
4.
Person who permits, or is considering whether to permit, B to engage in controlled activity relating to vulnerable adults |
Vulnerable adults |
5.
Personnel supplier in connection with the supply, or possible supply, of B to another person for B to engage in regulated activity relating to children |
Children |
6.
Personnel supplier in connection with the supply, or possible supply, of B to another person for B to engage in regulated activity relating to vulnerable adults |
Vulnerable adult |
7.
Personnel supplier in connection with the supply, or possible supply, of B to another person for B to engage in controlled activity relating to children |
Children |
8.
Personnel supplier in connection with the supply, or possible supply, of B to another person for B to engage in controlled activity relating to vulnerable adults |
Vulnerable adults |
9.
Person who has parental responsibility for a child and is considering whether B is suitable to engage in regulated activity in relation to the child, but not if B is permitted to do so by an independent regulated activity provider |
Children |
10.
Parent who is considering whether B should be a private foster parent (within the meaning of Article 55 in relation to his child |
Children |
11.
Person (except the parent of a child to be fostered) making or who has made arrangements for another to foster a child who is considering whether B is suitable to live in premises in which the child is fostered |
Children |
12.
An authority (within the meaning of the Children Order) in the exercise of functions under Article 108 of that Order considering whether B is suitable—
(b) to live in premises in which a child is so fostered |
Children |
13.
Person who is considering whether B is suitable to engage in regulated activity in relation to a vulnerable adult who is a friend or family member of the person, but not if B is permitted to do so by an independent regulated activity provider |
Vulnerable adults |
14.
Person who carries on an adult placement scheme and is considering whether B is suitable to live in premises in which an adult is provided with accommodation as part of the scheme |
Vulnerable adults |
15.
Person who is permitting, or considering whether to permit, B to have access to health or educational records relating to a chil |
Children |
16.
Person who is permitting, or considering whether to permit, B to have access to health records relating to vulnerable adults |
Vulnerable adults |
17.
Appropriate officer (within the meaning of Article 17) who is required to obtain relevant information relating to B |
Children |
18.
Person who is permitting, or is considering whether to permit, B to engage in an activity in respect of which financial resources are provided pursuant to Article 4(2)(a) of the Further Education (Northern Ireland) Order 1997 (NI 15) or section 1 of the Employment and Training Act (Northern Ireland) 1950 (c.29), if engaging in the activity gives B the opportunity to have contact with children |
Children |
19.
Person of a prescribed description who is performing a prescribed function in connection with B in such circumstances as are prescribed |
(a) Children (if prescribed for the purposes of this entry); (b) Vulnerable adults (if prescribed for the purposes of this entry) |
(2) In entries 1, 2, 5, 6, 9 and 13 in the table the reference to regulated activity includes a reference to an activity which would be a regulated activity if—
(3) In entries 3, 4, 7 and 8 in the table the reference to controlled activity includes a reference to an activity which would be a controlled activity if it were carried out frequently.
4.
Parental responsibility has the same meaning as in the Children Order.
5.
A regulated activity provider is an independent regulated activity provider unless it is a company wholly owned by B.
6.
An adult placement scheme is a scheme—
(2) The Secretary of State may, by order, make such provision as he thinks appropriate—
(3) An order under this paragraph may contain provision—
3.
—(1) This paragraph applies to a person who is included in the list kept under Article 35 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 (NI 14) (individuals considered unsuitable to work with certain adults).
(2) The Secretary of State may, by order, make such provision as he thinks appropriate—
4.
An order under paragraph 2 or 3 may—
but the penalty for an offence created by virtue of this paragraph must not exceed level 5 on the standard scale.
(2) In Article 122 (persons disqualified for registration in respect of child minding and day care), after paragraph (2)(f) insert—
2.
—(1) In Article 70(2)(e) (regulations for prohibiting or restricting employment of teachers) for the words from "(i) on medical grounds" to the end substitute "on medical grounds, on grounds of misconduct or on educational grounds".
(2) In Article 88A(2)(b) (regulations for prohibiting or restricting employment of non-teaching staff) for the words from "(i) on medical grounds" to the end substitute "on medical grounds or on grounds of misconduct".
5.
In section 5 after subsection (3) add—
Short Title | Extent of repeal |
The Police Act 1997 (c.50) | Sections 113C to 113F. |
The Criminal Justice and Courts Services Act 2000 (c.43) | Sections 35 and 36. |
The Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 (NI 4) | The whole Order. |
The Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (NI 9) | In Schedule 4, the amendments to the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003. |
The Serious Organised Crime and Police Act 2005 (c.15) | In Schedule 14, paragraph 2. |
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