Regulation of Early Education and Childcare

Chapter 3: What to Regulate

1. There are two main issues in looking at the scope of any regulatory system for early education and childcare: the types of provision which should be covered by regulation; and the age range of children for whom provision should be regulated.

Types of provision

2. At present the following forms of provision are subject to some form of regulation: local authority schools (including nursery schools and classes); independent schools; public, private and voluntary provision such as playgroups, nurseries, crèches, nursery schools (where not within local authority or independent schools), play-schemes, after school clubs and childminders.

3. We propose that, at the minimum, all forms of childcare and pre-school education currently subject to regulation should continue to fall within the scope of regulation in the future.

4. At present the following types types of provision are not subject to any form of regulation: informal care provided by relatives and unpaid care provided by friends; care provided in particular premises for fewer than 6 days in any year or for fewer than 2 hours (not necessarily consecutively) in a day; care in the child's home provided by nannies (except insofar as nanny agencies are regulated by the Department of Trade and Industry as employment agencies) or by other persons employed by parents where the person providing the care does so for no more than 2 families; and care provided in the family home by au pairs.

5. We do not propose to regulate informal, unpaid care provided by relatives or friends. Parents may be assumed to have close knowledge of relations or friends to whom they would entrust their children and the often sporadic nature of such care would make it difficult to make any regulation effective. Regulation therefore seems intrusive, impractical and unnecessary.

6. The issues relating to nannies or others employed in the home are more complex and discussion of this issue is not helped by the many ways in which the term "nanny" is used. The term nanny is used mainly to refer to a person employed to look after children in the family home for a substantial number of hours a week usually, but not always, while parents are away from the home at work. Some understand "nanny" to refer to a person with an appropriate qualification but others use it to refer to qualified and unqualified persons. In seeking a nanny (qualified or unqualified) parents may, through an agency or advertisement, employ someone previously unknown to them. But they may also employ someone well known to them, perhaps a neighbour or family friend.

7. Where parents employ someone previously unknown to them they can seek staff with particular qualifications if they so wish and take up references. Parents do, however, have worries about how they may both check the validity of qualifications claimed and become aware of any concerns expressed by all previous employers or, at the extreme, know of any criminal conviction. But steps that might be taken to help parents in this respect are not straightforward. Registering nannies has been suggested. Apart from the complexities of keeping a register up to date it would be necessary to decide who would be registered and whether any requirements could or should be put on parents to check such a register.

8. A registering body could hold details of persons with certain qualifications and be able, where evidence justified such action, to de-register individuals. In order to be effective employing parents would need to report concerns and this would be far more difficult to enforce than a requirement on managers of nurseries etc. Only a proportion of those employed by parents are, however, qualified; many will be employed on the basis of previous experience. While steps will be taken to encourage childcare workers across all settings to demonstrate the validity of their experience through, for example, pursuing vocational qualifications, this cannot be achieved quickly. In the medium term, therefore, many parents will quite properly choose persons without qualifications to look after their children. A registration system for this group seems impractical. In the absence of qualifications it is not obvious what registration could be based on.

9. The position of nannies is only partly comparable with childminders who are subject to regulation. The regulator ensures that a childminding service being offered to parents is satisfactory. He looks at matters including suitability of premises, adult:child ratios and whether the childminder can be regarded as a fit person to care for children. But in the case of care in the home, parents are able to ensure suitability of premises. They also have direct control over numbers cared for. (If children from more than two families are cared for then care is subject to regulation as this becomes akin to a nursery). This leaves fit person issues: these are discussed below.

10. The Government will be consulting shortly on regulation of employment agencies, including nanny agencies. It has already announced that it wishes to see a voluntary Code of Practice for nanny agencies. Parents employing nannies would be free to employ whomsoever they felt suitable and, unlike regulation under the Children Act 1989, it would not be an offence for persons to provide nanny services without being covered by the Code of Practice. But those employing nannies offered by agencies covered by the Code of Practice would have the comfort of knowing that certain checks had been made.

11. Parents may, however, conclude that the best care for their children will not come from a nanny supplied by an agency covered by the code of practice but perhaps by someone recommended to them. In that case they might themselves want to carry out the kind of checks an agency might otherwise carry out. Guidance is being developed for parents who wish to employ a nanny or other person to carry out childcare within their home. This will set out the types of checks of background, experience and skills that should be carried out.

12. The implementation of more extended access to criminal record checks under the Police Act is also relevant here. In the future individuals seeking employment will be able to obtain criminal conviction certificates, which they can show to actual or prospective employers. Nannies who have self-employed status or who are employed directly by parents will be able to obtain criminal record certificates, which will contain details of convictions which are unspent under the Rehabilitation of Offenders Act. Nannies employed through an agency will be able to apply for an enhanced Criminal Record certificate that will show all convictions plus any non conviction information that the police consider relevant to the position being applied for. This is because applications for an enhanced certificate must be countersigned by a person registered under Part V of the Police Act. The registered person as defined by the Act must be a body corporate or unincorporate, a person appointed to an office by virtue of any enactment, or an individual who employs others in the course of a business.

13. A further possibility might be to allow parents to ask the regulatory body to carry out, for a full cost fee, the type of checks on a prospective nanny's fitness for childcare responsibilities that are carried now on childminders. The regulatory body might be better placed to obtain and interpret such evidence as references from General Practitioners. Where the regulatory body recommended against employing someone as a nanny it is not envisaged that it would be an offence to do so. But clearly parents would think very carefully indeed before taking such a course of action.

14. We believe that a Code of Practice for nanny agencies together with wider access to checks on individuals and guidance on employing a nanny are likely to provide the most effective means of protecting children cared for in the home. We would welcome views.

15. We do not propose to regulate care by au pairs. (The term au pair derives from Immigration Rules where it is defined, in summary, as an unmarried person without dependants, coming from certain, mainly European countries outside the European Community, aged between 17-27, coming live in the in the UK for a time as a member of an English speaking family to learn English while helping in the home. The term may be used colloquially, however, to encompass a larger group.) This seems impractical given that their period of employment is often short and does not always involve care for children in the absence of their parents. But guidance for parents will make it clear that au pairs should never be presumed to be capable of providing satisfactory childcare without adequate checking of background, experience and skills.

Age range of children

14. The Schools Code and Schools Premises Regulations cover all children at local authority schools. Independent schools are not formally covered by the Code and Regulations but in effect the same standards are applied through the arrangements for their inspection and for the registration of new independent schools. But the Children Act 1989 only requires regulation of provision for children up to the age of eight. In some cases provision that is regulated because it contains children aged under eight will also serve older children. For example, after school clubs attached to primary schools will often be open to all children in that school. But some provision for children eight and over is not subject to regulation.

15. All children deserve the childcare environment to which their parents entrust them to be safe, enjoyable and beneficial to their development. We believe that there may be a case for extending the age range covered by regulation to extend protection to older children. However, putting this into practice raises complex issues which respondents will want to take into account and which must be taken into account before coming to a final decision. The childcare strategy for Scotland covers an age range of 0-14 on the basis that many will not feel happy leaving their children without adult care or supervision before the age of 15. That may suggest that the age range covered by regulation should extend to 14. Against that, teenage children are better - if not completely - able to look after their own interests in a way that younger children cannot. This need not be a question of either/or. Regulation of care for older children could be adapted to take this into account as well as the different nature and objectives of out of school care which aims to complement formal education. It should also be borne in mind that certain outdoor activity centres are already regulated as to safety, staffing ratios and other issues. Assuming the age range is extended, we would welcome views on what form regulation might take. Any increase in the age range covered would carry with it a financial cost either to the regulator or consumer or both. The extent of the extra financial burden would depend upon the degree to which the increase in the age range covered increased the amount of provision regulated. This would not increase in proportion to the age range covered. As set out above, much provision based around primary schools is already effectively covered as children attending span the present cut-off age for regulation. If the age range were extended to secondary school age the financial burden would be greater. Assuming the age range is extended, and bearing in mind the scope for different standards, what new cut-off point might be set?

16. The case for having a two hour rule below which care does not need to be regulated is also worthy of examination. There is clearly a need for a cut-off point and whatever point is chosen there will always be some provision that falls just beneath it. There may be merit, however, in taking account of cumulative hours of childcare provision over the year so that any provision reaching a certain level would be regulated even if individual sessions fell below 2 hours.

17. In general any regulatory system should apply equally to all children of similar ages. There may, however, be arguments for having particular standards for children with special needs. Higher staff ratios will almost always be needed. Not all children as they grow older are better able to look after and articulate their own interests to a degree that makes less exacting standards possible. It would, however, be unfortunate if introducing specific standards for children with special needs acted against provision that integrates children with special needs and other children. In addition, the specific needs of such children will vary greatly and may be difficult to encompass fully in regulatory standards. At present regulators have the discretion to diverge from guidance, for example, to require higher adult: child ratios where that seems appropriate. We do not believe that separate standards should be set for provision dealing with children with special needs but that, as at present, regulators should exercise discretion.