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Licensing

Q: LEA child performer licence refusal

Our Local Education Authority refused to issue my son a child performer licence. We think the LEA took the easy way out, rather than properly check the limitations imposed by The Children Act 2004. Is it worth appealing?

A: The law relating to child performance licensing is complex and, in relation to the discretionary aspect of decisions on licence application, unsatisfactory, which is why intense lobbying of the government for greater clarity and uniformity is currently in progress, as recently reported in this newspaper (see The Stage issues of April 21 and October 20, 2005, where the outcome of applications for a licence was described as a "postcode lottery").

The matter is governed by the Child (Performances) Regulations 1968 as amended in 1981 and 2000 and by various statutes relating to children, principally The Children Acts 1989 and 2004, whereunder each LEA has a statutory responsibility to issue child performance licences for children who live in its area and in so doing to take into account a broad range of issues, which leaves it with a considerable amount of discretion, on the basis that the child's welfare is to be regarded as paramount.

The problem lies in the fact that an LEA may refuse to issue a child performance licence if it considers such a licence would be detrimental to the health, care and/or education of the child. It thus has a quasi-judicial role, the exercise of which may be largely subjective and dependent on the personal viewpoints of the individuals who make the decisions on behalf of each particular LEA concerned.

Before making a decision, the LEA may require additional information from the applicant and is obliged to check out any areas of concern - which may not be apparent to the applicant - so that the time taken to process an application may vary considerably from applicant to applicant and from LEA to LEA, with different focus of attention and different degrees of stringency from one to another. It is therefore quite possible that two LEAs could adopt a different approach and reach different conclusions on the same set of facts. Hence the "lottery" aspect mentioned above, which, it is thought, may best be resolved by the formulation of common, national guidelines for implementation by all LEAs.

Your enquiry gives no clue as to the reason given by the LEA for refusing to issue a licence for your son but I would guess it is very probably on the discretionary ground mentioned above, rather than a technical ground such as a defect in the application or absence of a medical certificate where one is required, in which case you should ask for the detailed reasons behind the refusal and to see the relevant reports and minutes relating to them.

If your request is refused or you get an inadequate response, you should press for satisfaction in reliance on the Freedom of Information Act. Once you have the information and become aware of the precise reasons for refusal, you can then consider an appeal or, if you are concerned about the time for appealing running out, then appeal first and get the information later. The applicant has a right of appeal to the Magistrates Court against refusal of a licence.

In passing, I should mention that if no payment is to be made for your son's performance - other than expenses - and he does not exceed four performance days in the six months preceding any performance, and either he does not need time off school or has leave of absence from his school to enable him to perform, then he will be exempt from needing a perfomance licence, but I apprehend this does not apply in your son's case or a licence would not have been sought and refused. In any event, if the child is to be absent from school, some LEAs insist on the need for a licence regardless.

Where a licence is required, it is, of course, an offence to cause or allow a child to take part in a performance without one.

First published 22nd December 2005