Guidelines for Filming With Children
Legistlation
Application of legislation
Who does it apply to
Exemptions
What's the minimum school leaving age (MSLA)
Which is the licensing authority
Who applies for the licence
When must the licence application be made
Who is the licence holder
How do rehersals affect licenses
What must the licence show
Who has copies of the licence
Ages, numbers of days a child may perform & daily restrictions
Working at night
Education
Health
Dangerous performances
Welfare of children
Safeguarding children
Children working abroad
Health & Safety
Offences
Please Be Aware That These Notes Give General Information Only. Interpretation of the law is a matter for the Courts; this is not a definitive guide to the law, and the Acts and Regulations are amended from time to time. The legislation is reproduced in Clark-Hall & Morrison: On Children, published by Butterworth’s – the publication is expensive, but updated regularly. Your legal adviser or the Local Education Authority may have a copy.
Legislation
… It depends on where the child lives
The European Union passed a Directive on child employment in 1994, which meant that the UK had to implement changes to the Children and Young Persons Acts of 1933 and 1963 (in Scotland the Children and Young Persons (Scotland) Act 1937) and the Children (Performances) Regulations 1968. These were implemented on the 4 August 1998. The major impact was to bring child modelling and sporting activities (referred to in the Regulations as "an activity") within the sphere of the Acts and Regulations, and to reduce the circumstances for which a performance licence is needed.
Further Regulations liberalised some of the restrictions on hours and days that a child can perform. However, these changes applied in England only. The power to make the changes in relation to Wales has been transferred to the National Assembly for Wales, and in Scotland to the Scottish Executive.
Wales… although the Welsh Assembly indicated some time ago that they were considering options for change, at the time of writing (February 2005) a search of the Welsh Assembly web site would seem to indicate that no changes in the Regulations for Wales have been made.
Scotland... Although the Scottish Parliament has the power to amend the Act and Regulations, it would appear that they have yet to do so; at the time of writing (February 05) nothing has been found on the Scottish Assembly website to indicate that there has been a change in the law. This means that the Act and Regulations still apply, but applicants would be wise to check very carefully with Scottish authorities before making any applications.
Northern Ireland… has its own very similar legislation on children in entertainment contained in the Children (Northern Ireland) Order 1995. These are not covered in this note, so please consult the Order for details.
This means that for the time being, England, Wales, Scotland and Northern Ireland all have similar but differing legislation in relation to children taking part in performances and activities. Therefore, it is not possible to give a comprehensive UK wide overview of the legislation. The interpretation and application of the Act and Regulations can also vary from one Local Authority to another, and you are advised most strongly to contact the appropriate education authority for local information – this must be in the first instance the local authority where the child lives, not where the child will work, or where they go to school.
Remember: The old maxim that ignorance of the law is no defence!
In addition, in June 2004, section 175 of the Education Act 2002 was implemented in England – this gives Local Education Authorities (LEAs) the statutory duty to safeguard the welfare of children. Many Authorities are now reviewing their arrangements, and this may have an impact on how they deal with applications. For example, many LEAs are making much more stringent checks on Matrons and venues. This may have an impact on a LEAs ability to turn around an application in a short time – applicants are strongly advised to give as much notice as possible.
Application Of Legislation
… How does it work?
Who Does It Apply To?
The Children and Young Persons Act 1963, Sections 37-43 (and Regulations made under it) apply to any child under minimum school leaving age (MSLA) who takes part in a performance:
(a) In connection with which a charge is made
(b) In licensed premises
(c) Broadcast or recorded for broadcasting, or
(d) Filmed for public exhibition.
“Performance” is not strictly defined and discretion is left to the licensing authority. However, the Department of Health suggests that any activity in which a child is directed should be regarded as a performance.
Exemptions
Unless one of the exemptions below applies, all performances by children of compulsory school age and under must be licensed under s.37(2) of the Children and Young Persons Act 1963.
The only exemptions are:
1. No payment in respect of the child taking part in the performance, other than for defraying expenses, is made to him or to another person and… in the six months preceding the performance, he has not taken part in other performances on more than three days (Section 37(3)(a) The Children and Young Persons Act 1963); or
2. The child is employed as a model, and no payment is made to the child or to another person, other than for defraying expenses (Section 37(1)(b) The Children and Young Persons Act 1963), or
3. The child takes part in a sport and no payment is made to the child or to another person, other than for defraying expenses (Section 37(1)(b) The Children and Young Persons Act 1963), or
4. No payment in respect of [the child] taking part in the performance, other than for defraying expenses, is made to him or to another person and… the performance is given under arrangements made by a school (within the meaning of the Education Act 1996, or the Education (Scotland) Act 1962) or made by a body of persons approved for the purposes of this Section by the Secretary of State, or the local authority in whose area the performance takes place. (Section 37(3)(b) The Children and Young Persons Act 1963).
The exemptions need to be read alongside Regulation 8(2)(b) of the Education (Pupil Registration) Regulations 1995. This says "leave of absence [from school] shall not be granted to enable a pupil to undertake employment (whether paid or unpaid) during school hours except… employment for the purpose of taking part in a performance within the meaning of s.37 of The Children and Young Persons Act 1963 under the authority of a licence granted by the local authority under that Section".
Remember: As long as the child is not absent from school, and one of the exemptions above is met, no licence is needed. However, Part VI of the Children (Performances) Regulations will apply, with regard to hours, etc…
The employer would also have to carry out a child’s risk assessment as required by the Management of Health and Safety at Work Regulations.
Also, note that if the child is a chorister taking part in a religious service, or in a choir practice for such, he or she is not deemed to be employed (s.30 The Children and Young Persons Act 1933).
What’s The Minimum School Leaving Age (MSLA)?
A child reaches minimum school leaving age in England and Wales on the last Friday in June of the academic year in which their sixteenth birthday falls. The academic year runs from the 1 September to 31 August. This means that in England and Wales, a child can be sixteen, but still be required to have a performance licence. The legislation applies to children under the MSLA; even if a child is yet to reach statutory school age, he or she will still require a licence, unless one of the exemptions applies.
Remember: However, no child may be absent from school to take part in a performance or rehearsal, unless a performance licence has been issued by the local authority.
In relation to England only, Regulation 6 was revoked in 2000. This removed restrictions preventing local authorities from granting a licence allowing a child to take part in a public performance if the child would, in the twelve months before that performance, have taken part in other performances on more than a certain number of days. Changes were also made to the Regulation requiring them to take certain other matters into account when deciding whether to grant a licence. Local Authorities in England are not now subject to those restrictions when considering the grant of a licence in respect of a performance by a child.
However, the licensing authority must be satisfied that:
• The child’s education will not suffer,
• His or her health will not suffer,
• The place of performance/rehearsal conforms to the standards laid down by the Regulations,
• The conditions of the licence will be observed.
Remember: The licensing authority is empowered to revoke a licence if it has any concerns.
Which Is The Licensing Authority?
.. Who to contact
You must apply to the Local Education Authority where the child is normally resident – i.e. where they live most of the time. If a child is a boarder at school, or lodges away from home, the Local Education Authority will be the one where the child’s parent lives.
If the child is from outside the UK, the relevant Authority is the one where the applicant lives.
Who Applies For The Licence?
The applicant is the person responsible for the production in which the child will take part. Where "person" is a corporate body, the licence application must be signed by an individual to whom responsibility for that part of the business has been delegated by the corporate body – please ensure that you are authorised before you sign the application form.
For a child participating in an activity, the applicant is the person who is responsible for the organisation of the sporting event or, as the case may be, the person who proposes to engage the child as a model. This means that the application cannot be signed by or on behalf of the child’s parent or agent.
Application forms must be countersigned by a child’s parent. The definition of parent is not clear – in the Education Act 1996, the term "parent" includes anyone who has parental responsibility for the child (as defined by the Children Act 1989), or anyone with whom the child lives. This could include, for example, the local Authority that has a care order in respect of the child, or a foster carer.
When Must The Licence Application Be Made?
… How long will it take?
If any rehearsals prior to the first performance will take place during school hours the application should be made 21 days before the first rehearsal.
Remember: The Regulation 1(3) of the 1968 Regulations allows a licensing authority to refuse to grant a licence if the application is not received twenty-one days before the performance or activity in question.
Some local authorities may be flexible about this (especially if you can submit all the relevant paperwork with the application), but you must not assume that they would be. Whilst they may be able sometimes to process applications on shorter notice, too short a time will be insufficient for them to make the necessary checks to ensure that the child’s welfare will be safeguarded during the proposed performance. If in doubt whether your application will be allowed, consult the person responsible for such matters in the local authority. Do not leave it too late!
If you are refused a licence on grounds of insufficient notice, Section 39(6) of the 1968 Act requires that the Local Authority state the ground for refusing the application. You, as the applicant, then have the right under Section 39(6) of the 1968 Act, to appeal to a Magistrates’ Court against this refusal.
Who Is The Licence Holder?
The licence holder is the person who signed the licence application or the body on whose behalf the application was made. The licence holder has responsibility for observing the restrictions and conditions of the licence. Although they may delegate this to other persons, responsibility for the child always lies with the applicant.
How Do Rehearsals Affect Licences?
Rehearsals do not count towards the total number of performance days permitted in any 12 month period, however they do count towards the permitted hours worked in any one day, and the permitted days in the working week.
What Must The Licence Show?
The form of the licence is prescribed by the Regulations and must show:
• The child’s name (plus stage name if appropriate)
• A photograph of the child
• The nature of the performance.
• The place of performance.
• The date(s) of performance(s) – this will be either:
1. The actual dates that the child will be employed, or;
2. The number of days over a 6 month period for an open licence.
Who Has Copies Of The Licence?
• Licence holder – original with one photograph of the child.
• Licensing authority – copy with one photograph of the child.
• School
• Parent(s)
• Matron
• Tutor (where appropriate)
• Local Authority where performance takes place
Ages, Number Of Days A Child May Perform & Daily Restrictions
The Regulations are very detailed on working hours. The number of days and hours that a child can work is dependent on how old the child is, the type of performance, and which part of the UK they live in.
The situation is complicated by amendments to the legislation that were made to the Regulations in England only. If a child lives in England, but performs for example in Wales, it is not clear yet which set of Regulations would apply for the purposes of hours, etc… It would be too complex within this brief look at The Regulations to give details – for particulars of the hours that a child can work, and at what age, please ask the appropriate Local Authority.
The Local Authority must ensure that in addition to the child working the correct hours, and so forth, the applicant has made satisfactory arrangements for meals, rest, recreation, washing and changing – including separate facilities for boys and girls over five years old.
Working at Night
… Films, Television & Broadcast Performances
Where the licensing authority is satisfied that it is absolutely essential (and the applicant would have to give convincing reasons) a child may take part in a performance after midnight and before the permitted starting time. The hours after midnight are counted as part of the previous day’s performing time. There must be an interval of at least 16 hours before further work. If night work takes place on 2 consecutive nights there must be a 7-day interval before further night work.
Education
It is the responsibility of the applicant to indicate what arrangements have been made for the child’s education. These should be agreed with the head of the child’s school before the application is made. It is then for the licensing authority to decide whether these arrangements are satisfactory.
Permission for a child to be absent from school can only be given for a licensed performance. Head Teachers cannot give permission for a child to be absent from school to attend auditions or rehearsals, except for rehearsals that take place during the currency of a licence.
In England, the recent modifications to the Regulations mean that for each period of four weeks (or less) education requirements will be met if the child receives education for at least 6 hours each week, with the remainder of the required hours education taking place on days other than days on which the child would not normally be required to attend school, subject to a maximum of five hours education taking place on any day.
Private tuition is considered essential for long engagements, especially those involving groups of children, e.g. long-running musicals, TV series. A private tutor has to be approved by the licensing authority and may teach a maximum group of 6 children, except when they are of a similar age and standard when the maximum may be 12.
Although some Authorities may keep lists of approved persons in their area, it is the applicant’s responsibility to ensure that persons engaged as tutors are suitable to undertake the work. There have been incidents reported of paedophiles seeking to obtain this type of work; children must not be put at risk by unsuitable tutors.
Health
1. The situation regarding medical examinations has been made a little more confusing by amendments to the Regulations. However, generally speaking, a medical is required for all performances except:
• For "open" licences for less than 6 days in a 6 month period.
• When children are employed solely as models or in sporting activities, when only a declaration signed by the parent is required.
2. Where medical examinations are required, before the local authority can issue the licence, they must ensure that "the school medical officer or other suitably medically qualified person…has examined the child and has certified that he is fit to take part in the performance for which the licence is requested and that his health will not suffer by reason of taking part in such performances". Many local authorities no longer have school medical officers; where required, it could be expeditious to include with the application evidence from the child’s GP about the child’s health.
3. As part of the risk assessment required by the Management of Health and Safety at Work Regulations, the applicant should take into consideration the child’s health, and whether this may pose any risk. For example, if the performance requires a lot of running around, and a child is asthmatic, what risk is posed to the child by the activity, and what steps will the applicant take to avoid these risks?
Dangerous Performances
… For example, some circus acts
Only persons aged at least sixteen, and who are also over compulsory school age, may take part in performances of a dangerous nature. Children over 12 may be trained under a licence granted by a Magistrates’ Court. If a training licence has been granted, the licensing authority has no power to refuse a licence for performance.
Remember: Even if a training licence has been granted, it does not do away with the requirements to carry out a risk assessment, and reduce any risks associated with the training.
Welfare of Children
… Chaperones & Matrons
As mentioned above, the LEA now has an absolute duty to safeguard the welfare of its children, including those it licences for performances. However, the licence holder is responsible for ensuring that a child is supervised at all times and in the charge of a matron (more commonly called a chaperone; the Regulations say that a matron may be male or female!) approved by the licensing authority (except when in the charge of a parent/guardian or tutor).
Remember: The number of children in a chaperone’s charge can vary according to the ages of the children, or if they are living away from home, but the maximum is 12. A tutor may also be approved to act as a chaperone but the number of children must not exceed 3.
Whilst it is the applicant’s responsibility to ensure that the Matron is fit to have charge of the children in his or her care, the local authority has a duty to ensure that the matron is a suitable person. This will include making a proper check with the Criminal Records Bureau, and taking up references. This can take some time, so many local authorities have adopted a practice of issuing approval to a Matron on a yearly basis.
Remember: If you employ a Matron who is not approved by a local authority, you must be prepared for some delay in obtaining the necessary clearance.
The matron’s purpose is to safeguard the health, safety and welfare of the child. This means that if they have concerns about the child, they must bring these to the attention of the licence holder. If the Matron thinks the child is too ill, or tired to perform, or if the matron thinks that the performance may place the child at risk, they must tell the licence holder (or his or her representative) who must then act on the advice of the Matron.
Safeguarding Children
… Keep them safe
Local Authorities make stringent checks on Matrons and Tutors to make sure that they are suitable people to have charge of children. However, the Local Authority is not responsible for other people who may also work with the child. Sadly, there are people who seem to have little or no compunction about abusing children either violently or sexually. Others, by their conduct towards children in environments where children ought to be secure, demonstrate their unsuitability for such work.
Remember: The licence holder must be satisfied that other people who will encounter child performers are suitable, and that no child is put at risk by virtue of the performance.
Some people may be barred from working with children and young people. The Criminal Justice and Court Services Act 2000 gave new powers to courts to disqualify an individual who has committed a serious offence from working with children. In addition, some people may be deemed to be unsuitable for working with children – for example, through being placed on the DfES’s List 99. The tragic case in Soham (and the subsequent Bichard enquiry) means that we must all be much more careful when recruiting staff who are to work with children.
Remember: If you are not able to verify someone’s suitability, you should not allow him or her unsupervised access to children at any time.
Children Working Abroad
… Outside the UK & Irish Republic
Children and young people under 18 who go abroad to take part in a performance ("sing, play, perform or be exhibited for profit"), a sport or to work as a model in circumstances where payment is made (other than expenses) must be licensed to perform abroad.
The 1968 Regulations have been amended so that they now contain the form of licence required under Section 25 of the Children and Young Persons Act 1933 to authorise a child to perform abroad. New regulations 41A and 41B, together with the new Schedule 4, regulate the form of licence and the particulars that the justice of the peace who grants the licence must send to the Secretary of State.
Overseas Licences are granted by any Justice of the Peace at a Magistrates’ Court.
Remember: At least 7 days prior to applying for a licence the applicant must give notice to the Chief Constable for the district in which the child or young person lives. The licensing authority must be consulted with regard to the number of days the child will perform and educational arrangements proposed if the period for which the licence is required involves absence from school.
Health & Safety
Under the Management of Health and Safety at Work Regulations 1992, which was amended by the Health & Safety (Young Persons) Regulations from the 1 March 1997, an employer of a child must assess any risks to the child before he or she starts work.
The key to children’s safety is adequate supervision by both staff and the chaperone, however it is important to consider the working environment.
The risk assessment must take into account:
• the inexperience, lack of awareness of risks and immaturity of children and young people – especially where the child has a disability or special educational need;
• the layout of the area where the child will work, and the type of equipment they may use and the way in which they are handled;
• the tasks performed;
• the extent of the health and safety training provided, or to be provided to the young person, including rehearsals.
Remember: If a significant risk remains you must not engage a child or young person to do the work
There is a requirement to tell all workers, including young people, about the risks to their health and safety identified by the assessment and the measures put in place to control them. The employer must also provide information to parents of school age children about the risk and the control measures introduced. For this information to serve any useful purpose you must ensure that the parent is provided with it before employment starts. Such risk assessments should also be made available to the local authority when requested by them when they are processing licence applications.
A child may have to travel some distance to and from a place of performance. This may mean getting up early, and getting to bed late. Children do not have as great a resilience as adults, and may suffer because of the long days. Employers must be alert to a child performer being tired and stressed from too much travelling, and if need be, take steps to remedy this.
Where a child has been asked to perform in situations that might give rise to stress or emotional trauma (especially for younger children), such situations must be considered as a health and safety hazard, and again, appropriate measures to reduce the stress must be taken.
Remember: If a local authority believes that a child’s health or education may be suffering as a result of the child being employed (including in a performance or an activity), the authority can issue a notice to the employer prohibiting the child’s employment, or imposing restrictions.
Offences
Dangerous Performances
• If a person "permits or causes" or a parent allows, a child to take part in a dangerous performance, on conviction, they could be fined up to £1,000.
Performances Out Of the UK
• If a person permits, causes or procures a child to go abroad for a performance or an activity, without the required licence having been granted, on conviction, they could be fined up to £1,000 or given three months imprisonment, or both.
• If a person made false pretence or false representation in connection with a child’s performance out of the UK, on indictment, they could be imprisoned for up to two years.
Performances in the UK
• If any person causes or procures, or a parent permits, a child to take part in a performance or activity in contravention of s.37 of The Children and Young Persons Act 1963 (and the Regulations) they can on conviction be fined up to £1,000 or given three months imprisonment, or both.
• If a person fails to observe any conditions on a licence issued, they can on conviction, be fined up to £1,000 or given three months imprisonment, or both.
• If a person "knowingly or recklessly" makes a false statement in connection with an application for a licence, they can on conviction, be fined up to £1,000 or given three months imprisonment, or both.
• If a person fails to keep the records required, they can on conviction be fined up to £1,000.
Obstruction
• Authorised officers of the local authority and constables have powers of entry to studios or places of performance. Any person who obstructs them, or makes a false answer, or who refuses to answer, is liable on conviction to a fine of £500.
Employment General
• If a child is employed other than for a performance and in contravention of the Children and Young Persons Act 1933, the person who employs the child on conviction is liable to a fine of up to £1,000.
Notice to Employer
• If a local authority issues a notice to the employer prohibiting the child’s employment, or imposing restrictions, and the employer fails to comply with such a notice, they may be punished on summary conviction by a £250 fine, or 1 month imprisonment or both.
Health and Safety
• Failure to undertake a risk assessment as required by the Management of Health and Safety at Work Regulations is a breach of the Health and Safety at Work etc… Act; that Act’s penalties therefore apply.
Publications
• The only up-to date source of legislation for England and Wales is contained in "Clark-Hall and Morrison – On Children", published by Butterworths. However, as this also contains all relevant legislation in relation to children, it is expensive!
• Young People at Work, a Guide for Employers – Health & Safety Executive 1997, explains about risk assessment for young people
• Licence Application Forms – available from:
Shaw & Sons Ltd,
21 Bourne Park Industrial Estate
Bourne Road, Crayford, Kent DA1 4BZ
Tel: 01322 550676 or from your local authority.
Photo Credit: Ell Brown
