John Fowler reports on the special educational needs (SEN) Code of Practice and the related clauses in the Children and Families Bill 2012-13.


The Children and Families Bill 2012-13 came out of Commons Committee on 25 April and is expected to reach the statute book by November.

The Department for Education (DfE) has assembled on its website a number of “draft indicative” documents that set out how the Bill will be implemented. Of particular importance to schools is a draft SEN Code of Practice.

Clinical commissioning groups and health care provision

There was one significant change in Commons Committee to the Bill. Clinical commissioning groups (CCGs) are the bodies under the new NHS arrangements (which commenced on 1 April 2013) that are responsible for securing and arranging health services from local NHS Trusts and other provider bodies. The original print of the Bill put a duty on CCGs to co-operate with local authorities, schools and other bodies in planning special educational provision but there was no duty to secure health care provision as set out in a child or young person’s education, health and care (EHC) plan (the new name for the SEN statement). In response to the Commons Education Committee’s pre-legislative scrutiny, and widespread concern, the Government amended the Bill to require CCGs to “arrange” specified health care provision when it is set out in an EHC plan.

What else is in the Bill?

The Bill consists of eight operational parts. Part 3 contains the special educational provisions; the others are described in the following sections.

Part 1: Adoption and children looked after by local authorities

This part implements proposals from the government paper An Action Plan for Adoption: Tackling Delay, which aims to see more children adopted by loving families with less delay. The proposals include the following.

  • Fostering for adoption, to enable children to be placed earlier with prospective adopters who are already approved foster parents.

  • Removing the requirement that adoption agencies must give due consideration to the ethnicity, religious persuasion, racial origin and cultural and linguistic background of the child when seeking prospective adopters.

  • Improving support for adoptive families through additional information, and access to personal budgets.

  • Giving prospective adopters limited access to the national register of children for whom adoptive parents are sought.

  • Giving the Government a power to require a local authority to outsource its adoption functions.

  • Providing a new statutory basis to enable an adoptive child to have contact with the child’s birth family.

  • Making it a requirement for local authorities to have a “virtual school Head”, who can have a positive impact on the educational achievement of looked-after children.

Part 2: Family justice

This part of the Bill implements commitments the Government made in response to the Family Justice Review. with the objective of achieving better outcomes for children and families who go to court after family separation or where children may be taken into care. These include the following.

  • Requiring attendance at a family Mediation Information and Assessment Meeting before an application is made to the courts.

  • Keeping both separated parents involved in their child’s life where that is consistent with the child’s welfare.

  • Replacing the existing residence and contact orders with a new child arrangements order; this is intended to focus parents on the child’s needs, rather than the parents’ “rights”, and includes a power for the courts to make directions and conditions which, for example, specify what happens when an order is breached.

  • Requiring the permission of the courts before expert evidence is received, although this will not apply to local authority social workers or CAFCASS staff.

  • Introducing a 26-week time limit when the courts are considering whether a child should be taken into care; making the time limits on interim care orders and interim supervision orders subject to the courts; when the courts consider a care plan, only considering the matters essential for whether to make a care order.

  • Making changes to divorce law so that arrangements for children are no longer considered as part of that process but through separate proceedings at any time.

Part 4: Childcare

The Bill contains a small number of provisions to take forward its aim of reforming childcare to ensure “the whole system focuses on providing safe, high-quality care and early education for children” as set out in More Great Childcare. Most measures, such as increasing the minimum adult to child ratios, do not require primary legislation. The Bill introduces the following provisions.

  • Childminder agencies will be able to employ or contract childminders in order to stimulate the number of childminders, offer greater support and provide quality assurance.

  • Early years settings will be able to request and pay for an Ofsted inspection.

  • Although the local authority duty to secure sufficient childcare remains, the duty to publish an assessment of the sufficiency of childcare is repealed.

  • A maintained school governing body will no longer have to consult the local authority, staff and parents before making childcare provision at the school.

Part 5: The Children’s Commissioner

The Bill develops the role of the Children’s Commissioner’s effectiveness, taking forward recommendations in John Dunford’s Review of the Office of the Children’s Commissioner including:

  • giving the Commissioner a statutory remit to “promote and protect children’s rights”

  • introducing changes to make the Commissioner more independent from Government.

Parts 6, 7 and 8: Employment

A number of changes are made to workplace practice to support better parenting as set out in the Government’s response to the Modern Workplaces consultation.

Part 6: Statutory rights to leave and pay

Parental leave will be able to be shared following the birth of a child and on adoption. Adoption leave and pay will be extended to prospective adopters who are fostering the child.

Part 7: Time off work: antenatal care, etc

The partners of pregnant women will be able to take time off work to accompany the woman to antenatal care. The new right is extended to time off to attend adoption appointments.

Part 8: Right to request flexible working

The right to request flexible working is extended to all employees, not just those with parental or caring responsibilities.

Last reviewed 19 June 2013