Body of persons approval guidance Wales
Under Section 37(3)(b) of the Children and Young Persons Act 1963 a licence is not required for a performance given under arrangements made by a 'body of person' approved by the local authority where the performance is taking place, or in some exceptional circumstances by Welsh Government or the Secretary of State.
What is a BOPA?
The first thing to be made clear to both organisations who are applying for, and local authorities who are issuing body of persons approvals is that a BOPA must not be viewed as a means of 'getting round' the requirement for a performance licence. Applying for and granting a BOPA will reduce the administrative burden for all parties, however the same principles apply in terms of safeguarding the child and ensuring there is proper provision to secure his health and kind treatment. There must be no reduction in safeguarding arrangements.
A BOPA, if granted, removes the need to apply for an individual licence for each child; it is granted to the organisation that is responsible for the performance. The approval is granted by the local authority where the performance is taking place; the local authority can grant the approval even if the children taking part do not live within its boundaries. It is the organisation which is approved not the children ie the local authority is confirming that the group or organisation is a 'suitable' or 'approved' group and therefore must be certain that they (the LA) have taken every reasonable precaution to ensure the group is indeed a suitable group.
A BOPA can be granted to an organisation for a single performance or for a series of performances within a specified time providing no payment is made to the child or to anyone else in respect of the child taking part in the performance and the child does not require absence from school. See Section 7 'absence from school' for further details.
A BOPA is not transferable to another organisation or to individual children taking part in a performance arranged by someone else. A BOPA cannot be issued in respect of an activity.
A BOPA is not a 'group licence' nor is it an exemption under the 4 day rule.
Who can apply?
Any type of organisation can apply for a BOPA ie amateur group, professional company, stage or broadcast providing there is no payment made (other than expenses) for the child to take part. However they will be required to meet certain criteria and to demonstrate that they have clear, robust and well embedded safeguarding policies and arrangements in place to protect children. This will inform the local authority decision and it is at its discretion whether to issue an approval.
Festivals (dance, drama, music, speech) and 'competitions'
Since the introduction of the Children (Performances and Activities) (Wales) Regulations 2015 and supporting guidance it is clear that certain performances which were incorrectly ignored previously, fall under the performance licensing system.
A number of festival organisers have argued that due to the 'educational element' inherent within their festivals they should be exempt from licensing. The organisers of a festival are not a school and as such the festival can not be exempted under section 37(3)(b) of the 1963 Act. Festival organisers should be made aware Welsh Government will confirm they are subject to child performance legislation (See).
1.5 A performance may not require a licence if it is:
a) organised by a school - an educational institution that provides primary or secondary education, rather than a dance school or similar; and
b) the school is responsible for producing the performance, which may involve children from that school or from another.
It should also be noted that nowhere in the performance legislation does it state that 'competitions' are exempt from licensing.
If a performance/event meets any of the criteria specified in section 37(2) of the 1963 Act then it falls under child performance licensing legislation regardless of the name given to the event eg festival, competition, gala etc. Please note that 'admission charge or otherwise' does not include a payment to enter the event.
In the majority of cases the most appropriate way forward for the organiser of these types of events is to apply to the local authority where the event is taking place for a Body of Persons approval.
The number of festivals and similar events held across Wales and England each year is considerable and may represent a significant workload for licensing officers. When dealing with such events (many of which may involve several hundred children taking part over a number of days and weeks) it is imperative that local authorities focus on the safeguarding arrangements that the organisers have in place as stated above. The licensing officer should not insist on information being forwarded to the local authority which does not directly inform their decision to issue an approval.
In exceptional circumstances Welsh Government or the Secretary of State may issue a BOPA. Advice from respective guidance below:
Welsh Government advice 1.12 states the following:
- Where an application for a BOPA involves large numbers of children over a significant number of local authority areas, then in certain circumstances the Welsh Ministers may consider the application. In most cases, though, local authorities are better placed to judge the needs and safeguarding arrangements required for the children involved and Welsh Ministers would not expect to receive applications on a regular basis.
Department for Education advice 1.3.7 states the following:
- The Secretary of State has the power to issue a BOPA but will not generally consider applications. This is because local authorities are better placed to assess arrangements made to safeguard children in local activities, to inspect those arrangements and enforce any requirements or conditions intended to protect children.
- The Secretary of State will not consider any applications that do not involve a large number of performances with a large number of children across a significant number of local authority areas.
Organisations should therefore make an application for approval to the local authority where the performance is taking place. An organisation should not apply to Welsh Government or the Secretary of State because they believe the local authority is taking too long to process an application. They should certainly not apply to the Welsh Government or the Secretary of State because the local authority has turned down an application.