22 The legislation enforces this policy in various ways.
23 It is an offence to own, operate, manage or control a children's service without a licence (s. 7).
24 A person can apply for approval in principle to use particular premises for operating a service (s. 9). This approval cannot be given unless the Secretary is satisfied the person is a fit and proper person (s. 10(2)). If the applicant is a company, the Secretary must be satisfied a director or other officer in control is a fit and proper person (also s. 10(2)). The Secretary can take into account whether the person, director or controlling officer had been found guilty of an offence against the Children's Services Act, which would include ss. 26 and 27 (s. 11(1)(b)). The Secretary can revoke an approval in principle if the fit and proper person ceases to be fit and proper (s. 14).
25 There is a similar scheme for making applications for licences (see Div. 2 of Part 3). The application must be refused if the Secretary is satisfied that the applicant, who must be a person to whom approval in principle was given (s. 16(1)), is not or is no longer a fit and proper person to operate a children's service (s. 17(1)(a)(ii)). A licence is subject to a compulsory condition that the service be operated in a way which ensures the safety of the children being cared for or educated (s. 18(4)). The licence can be cancelled if the Secretary is satisfied that the licensee had been found guilty of an offence against the Children's Services Act or the licensee has failed to comply with the compulsory safety condition (s. 45(1)(c) and (e)).
26 Officers authorised by the Secretary (s. 35) are given powers of entry, inspection and seizure for the purpose of ascertaining whether the legislation is being complied with (s. 36).
27 There is a wide regulation-making power (s. 56(1)).
28 We can see that the offences specified in ss. 26(1) and 27(1) are designed to protect children and are an important component of the scheme by which the policy of the Children's Services Act is implemented. A children's service proprietor that is a company can only protect children from hazards and supervise them through employees, contract staff and similar persons. In my view the terms of the offences and the policy of the legislation are such that the actions of such persons done within the scope of their work can be attributed to the company. If their actions do not comply with the standards expressed in ss. 26(1) and 27(1), this can count as non-compliance by the company for the purposes of a prosecution.
29 I will now deal with four particular submissions made by counsel for ABC.
30 First, reliance was placed upon the fact that the staff of a children's service can also be criminally liable under ss. 26(2) and 27(2). Counsel for ABC submitted this shows the legislature did not intend a proprietor company to be liable for the failures of its staff. Something more is required before the company can be held liable, such as a systems failure. If the non-compliance is due only to the actions of the company's staff, they, not it, are liable.
31 I must reject this submission. The provisions of ss. 26 and 27 impose concurrent obligations, on pain of criminal penalty, on both the proprietor and the staff. The intent is to ensure that management, who control the children's service, and staff, who directly provide the care or education, are both bound to protect the children from hazards and adequately supervise them. Depending upon the circumstances, both or either may be prosecuted for breach. Whether either or both are charged is a matter for the discretion of the prosecutor.
32 Acceptance of the submission of counsel for ABC would transform the nature of the offences created by ss. 26(1) and 27(1) in their application to incorporated proprietors. Instead of having to establish that the children had not been protected or supervised in the manner specified in these provisions, it would be necessary to establish that there had been a systems failure or something of that kind. The provisions do not operate in this way. The provisions apply upon the objective fact of non-compliance (see above). It is not necessary to establish anything more because the proprietor happens to be a company.
33 Second, counsel for ABC submitted that Linework was distinguishable because there the legislation expressly provided that duties imposed on one person did not diminish duties imposed on other persons.[13] I do not think the principles expressed in Meridian, as applied in Linework, were much influenced by these provisions. In any event ss. 26 and 27 of the Children's Services Act expressly impose the same duties upon proprietors and staff.
34 Third, counsel for ABC noted that the worker in Linework was the foreman for the whole of the work site and therefore was not really a low-level employee. It is true the Court of Appeal saw this worker to be at the appropriate level for the purpose of fashioning the attribution rule relevant to the circumstances of that case. In other cases, such as the present, a court, applying the same principles, may see a worker at a lower level to be appropriate.
35 Fourth, reliance was placed upon R v Nelson Group Services (Maintenance) Ltd.[14] In that case the Court of Appeal proceeded upon the basis that the activities of the company's workers were "part of the conduct by the [company] of their undertaking."[15] The aspects of the decision relied upon by counsel for ABC concerned the operation of the particular statutory defence that was in issue in that case and do not assist in the resolution of the issues in the present case.
36 I therefore conclude that the acting magistrate correctly decided ABC could be found guilty of the offences by reason of the failures of its staff. It remains to consider whether the acting magistrate erred in law in deciding that it should be so found in the present case.