Proposed changes to licensing child performance - International Law Office

Introduction
Current regime
Consultation paper proposals
Comment

Introduction

This update summarises the changes to child licensing laws proposed by a government consultation paper of May 24 2012. Most changes will be welcome to sports event organisers and theatre, film and television producers, as they represent a long overdue overhaul of outdated legislation.

The law governing the regulation of children performing in theatre, film, television and sport has remained largely untouched since the entry into force of the Children and Young Persons Acts 1933 and 1963 and the Children (Performances) Regulations 1968. This legislation was passed almost four decades ago, at a time when there were three television channels and no Internet. The Office of Communications (Ofcom) did not exist and certain other mechanisms for protecting children (eg, Criminal Records Bureau checks) had not yet been established.

The existing regime has been increasingly criticised, particularly over the difficulty in establishing what types of performance are covered, and the level of bureaucracy involved in obtaining licences.

In 2009 the government commissioned a review of the existing laws. The report was published in 2010 and recommended a thorough overhaul of the system. In response, on May 24 2012 the government published a public consultation on proposals to reform and update the legislation relating to child performance; It is inviting responses until August 3 2012.

Current regime

Under the current regime, a child of compulsory school age (expiring at the end of the school year following his or her 16th birthday) requires a licence to take part in any performance in connection with which the child (or any other person) receives a payment (other than expenses) for the child's participation, as well as any performance which is broadcast or recorded with a view to use in a broadcast or film intended for public exhibition.

The term 'performance' is not defined in the legislation, but it covers dance, dramatic, musical and sporting performances and modeling where such activities involve any aspect of payment (beyond expenses), or which require an absence from school, subject to certain exemptions.

If a licence is required, the event organiser or producer must apply to the child's local education authority at least 21 days before the first performance. The application form varies according to the local authority, but always requires certain information, such as parental consent, a medical certificate and precise details of the dates and times for which the licence is required.

If the child is required to perform abroad, a different process applies: the organiser need only notify the chief of police for the child's local area and apply to a magistrates' court for the licence to be granted.

The local authority or court has discretion over whether to grant the licence, depending on whether it is satisfied that:

• the child is fit to take part in a performance;
• his or her education will not suffer; and
• he or she will be properly supervised.

Once a licence has been granted, the legislation sets out a complex system of regulations which the organiser must observe. In particular, the child:

• should receive at least three hours' tuition on every school day (subject to some flexibility for film and broadcast work);
• must be supervised at all times by a chaperone, who must be pre-approved by the local authority at least two months before the licence is required;
• is subject to certain restrictions on working hours, which vary depending on the child's age and whether the child is taking part in film or broadcast work or live performances.

If a producer contravenes the regulations or fails to observe the conditions of a licence, he or she may face a fine, three months' imprisonment, or both.

Consultation paper proposals

Like the report, the consultation paper recognises that significant changes are required to the system of licensing child performance. Many of its proposals will be of specific benefit to professional event organisers and producers.

Carve-out for professional sports players over 13
The paper proposes that children over 13 taking part in recognised professional sports should not be subject to the licensing regime. This is in recognition of the role of the Child Protection in Sports Unit, a body established in 2001 by the National Society for the Prevention of Cruelty to Children and Sport England to set standards for safeguarding young sportspeople, to be taken up by national governing bodies. The paper recognises that these bodies are better equipped to guide young people towards a professional career in sport.

Removing certain restrictions on under-14s
The paper recommends abolishing the restriction on performance by children under the age of 14 unless they are singing, acting, or dancing in a ballet, or taking part in a musical performance.

Simplified approval process
A simplified approval process would be extended to groups of children taking part in large, one-off productions, rather than requiring individual licences to be obtained. At present, the simplified process applies only to unpaid events, but the paper proposes extending it to paid events involving children over the age of 13.

Reducing bureaucracy
The paper recognises that the current procedure involves far too much administration, and that the discretion accorded to local authorities means that differing approaches are taken across different local authority areas. It proposes to deal with this by:

• introducing a single standard application form for all local education authorities, to ensure consistency across the country;
• speeding up the process so that all applications are processed within 10 working days;
• removing the requirement to go to court and notify the chief of police for overseas applications;
• abolishing certain local authority powers, such as the power to place conditions on the way in which fees are spent.
• abolishing the medical certificate requirement - most local authorities and producers felt that this was unnecessary and it was expensive for parents. The paper proposes that a parental declaration of health should suffice; and
• making clear that the local authority remit extends to the health, safety and welfare of the child only, not to editorial decisions on the content of shows. This proposal was influenced by the recognition that Ofcom's codes already set out detailed regulations for television and radio broadcasters and that Ofcom is better equipped to police what is appropriate and inappropriate when it comes to broadcasting. The paper emphasises that the presumption should be that a licence will be granted if the child's health, safety and wellbeing are not at risk.

Making licence conditions easier for producers
The report acknowledges that many conditions of child performance licences are onerous, inflexible and unnecessary. It proposes to deal with this by:

• making education more flexible – producers will still need to ensure that children are tutored for 15 hours a week, but this will no longer need to be at specific times, and could, for example, be at weekends;
• allowing licences to be granted for periods of time, rather than specific dates, in recognition of the difficulty in guaranteeing specific production schedules;
• taking rehearsals and practices outside the licensing regime, unless they are taking place in front of a paying audience. This will be particularly helpful when dealing with understudies;
• simplifying the rules on working time. The paper recognises that the current system, based on type of performance as well as the age of the child, is unnecessarily complex. It proposes rules based simply on age, which will prescribe the maximum daily duration, earliest and latest hours of work and compulsory break times; and
• reducing record-keeping requirements.

Comment

The changes to the child performance legislation proposed by the consultation paper will be welcome to many within the industry that have struggled with an outdated and unnecessarily bureaucratic regime. It reflects the principle that in a majority of cases, participation in the arts can be of great benefit to children, both in terms of personal development and future career, and should not be discouraged as long as proper safeguards are in place.

The government is inviting responses to the consultation paper until August 3 2012.

For further information on this topic please contact Sarah Pons at Harbottle & Lewis LLP by telephone (+44 20 7667 5000), fax (+44 20 7667 5100) or email (sarah.pons@harbottle.com).