Existing laws regulating the use of child performers in for instance, advertising, date back to 1968 and have been consistently criticised as over-bureaucratic. Now at last, the Department for Education is consulting on reforms, as Thomas Spanyol reports.
Who: Department for Education, UK Government
Where: United Kingdom
When: 24 May 2012
Law stated as at: 25 June 2012
The Department for Education ("DfE") has launched a consultation on changes to the legislation surrounding child performances. The stated aim is to "update and simplify the legislation governing the involvement of children up to the end of compulsory school age in a range of performance activities". What effect will the proposed changed have on TV ad producers' ability to use child talent in their commercials? Could this be the end of the line for the Milky Bar Kid?
Child performers have had some form of statutory protection since the Children's Dangerous Performances Act 1879, passed in reaction to the exploitation of children as acrobats or contortionists in travelling circuses and shows at the time. This historical act (now repealed) stated that no person should cause a child under the age of 14 to go through any public performance whereby life or limb should be endangered. Since then there has been a variety of legislation passed on this topic.
The current legislation is contained within a variety of statutes including the Children and Young Persons Act 1963 ("1963 Act"), the Children (Performances) Regulations 1968 ("1968 Regs") and the Children (Protection at Work) Regulations 1998 ("1998 Regs"). It is felt by the DfE that the legislation needs updating and consolidating.
Children in advertising – key changes
There is currently a licensing regime for children (defined as those who are still of compulsory school age – presently under 16) who take part in modelling or certain types of performance. This includes performances which are broadcast (1963 Act, s37(2)(c)). Licences are granted by the local authority of the area in which the child lives, or, if the child does not live in Great Britain, the area in which the applicant has his business.
Performances for which no payment is received other than incidental expenses are exempt from licensing, provided that the child has not taken part in more than 3 such performances in the previous 6 months, or the performance is given under arrangements made by a school or other body authorised by the Secretary of State. However, if the child is deemed to be "modelling", the only exception from the licensing regime is where the modelling is not in return for any payment. It is likely that advertising would be interpreted as "modelling" for the purpose of the legislation.
Presently there are restrictions on issuing licences to children under 14 unless these are for singing, dancing, acting or taking part in a musical performance (as per s38 of the 1963 Act).
The proposed changes would remove this restriction to enable children under 14 to take part in broadcast productions more easily.
Broadcasting – fly on the wall
Presently, any form of paid broadcast performance falls within the licensing regime.
However, the proposed regime suggests that fly-on-the-wall programmes, factual documentaries or interviews with children where the circumstances have not been contrived for dramatic or editorial effect would be exempt, as these present 'less risk' to children. In such limited circumstances footage of children may be used without licence.
The consultation document describes the current licensing procedure as being onerous. Large amounts of prescriptive detail must be supplied about the child, the proposed activity and the person who will care for the child during the activity. The licensing officer must ensure that all these requirements are met before granting a licence.
The consultation proposes that this system is replaced with a standard licence application form, to be supported by a risk assessment by the producer for the activity in which the child is taking part. This risk assessment need not be in a standard form but must be realistic and based on their knowledge of the performing environment, the requirements of the proposed role and the age and vulnerability of the child. Local authorities will then be able to prioritise which licences to inspect based on the risk assessments. The aim is that this will speed up licence applications.
In many cases under the current regime, a medical examination will be required as supporting information to a licence application from the child’s GP. The consultation highlights that this can cost parents up to £150 and disadvantage children from poorer families.
The consultation proposes that this requirement is replaced by a certificate of fitness from the child’s parents as part of the licence application – but reserving the right for local authorities to request a full medical examination if they feel it is necessary.
Dates of Performance
Currently, a licence can only be granted for a specific set of dates. This can be inconvenient for recorded productions, given that schedules often change in this field, making a whole new licence application necessary.
The proposal is to allow licences to be issued for a specific number of days, which would give broadcasters more flexibility.
If a group of children is being utilised – and paid – for appearance in an advertisement, currently it will be necessary to license each child individually. Group licensing under the current regime only extends to participation in activities that are not paid.
The proposal is to extend this ‘Body of Persons’ licence to all events featuring groups of children aged 13 or over, including those that are paid. The consultation does not see any reason why payment should make any difference. However, children under 13 must be licensed individually as before as they need extra protection.
Currently, a local authority must not grant a licence for a child to take part in a performance unless they are satisfied that the child’s education will not suffer. There are detailed requirements about when private tuition may take place including time of day and days of the week.
The proposal is that the requirement for 15 hours of tuition a week is maintained, but with flexibility over the timing and days.
Why this matters:
Overall, the intention of the consultation appears to be to liberalise the use of children in performances, removing some of the complexities in this area and artificial distinctions between paid and unpaid work. However, there appears also to be an attempt to strike a balance between liberalising the industry and protecting child actors – there is little danger of going back to the circumstances which necessitated the Children’s Dangerous Performances Act back in the Victorian era.
The consultation runs until the 3 August 2012. During this time, interested parties can make representations and inform the discussion. This is, therefore, an opportunity for the advertising industry to help shape the future regime surrounding the use of children in advertising. The full consultation document can be found at www.education.gov.uk/consultations.