The Childcare Act 2006: The Foundation of English Childcare Law

The Childcare Act 2006 is the principal statute governing early years education and childcare regulation in England. Almost every legal obligation a registered provider faces (from the duty to follow the EYFS to the conditions Ofsted may impose on a registration) traces back to this Act. Understanding its structure, its key provisions and the ways it has been amended helps practitioners, parents and local authority officers understand not just what the rules are, but why they exist and where they can be challenged.

Structure of the Act

The Act is divided into five Parts:

• Part 1: duties on English local authorities to secure sufficient childcare for working parents
• Part 2: equivalent provision for Wales (now largely superseded by devolved Welsh legislation)
• Part 3: the registration and inspection framework for childcare providers in England – the substantive core of the Act
• Part 4: miscellaneous provisions including the power to make the Early Years Foundation Stage statutory
• Part 5: supplementary provisions, definitions and interpretation

Part 1: The Local Authority Duty

Section 6 of the Act (as amended by the Children and Families Act 2014 and further amended by the Childcare Act 2016) imposes a duty on each English local authority to secure, so far as is reasonably practicable, that the provision of childcare (whether or not by them) is sufficient to meet the requirements of parents in their area. This includes securing the free entitlement hours for two, three and four year olds. Section 7 requires local authorities to secure free early years provision for all three and four year olds (15 hours per week for 38 weeks per year in its original form). Section 7A, inserted by the Childcare Act 2016, extends this to certain two year olds from lower-income families.

The local authority duty under s.6 is a sufficiency duty – it requires the authority to assess whether provision is sufficient and to take steps to address gaps. It does not make the local authority a direct provider, though councils may operate nurseries and children’s centres in their own right. Where a local authority fails in this duty, a parent can complain to the Secretary of State under s.13, who may direct the authority to comply. This is a relatively rarely used power but it exists and has been invoked in areas of severe shortage.

Part 3: The Registration Framework

Part 3 is the operational heart of the Act for registered providers. It establishes three registers: the Early Years Register (ss.33–36), the compulsory part of the Childcare Register (ss.96 and 62–75 as applied) and the voluntary part of the Childcare Register (ss.97 and 62–75 as applied).

The Early Years Register (s.33)

Section 33 requires any person who provides early years childcare (childcare for a child from birth until 1 September after the child’s fifth birthday) to be registered on the Early Years Register, unless an exemption applies. Registration is not optional: providing early years childcare without registration is a criminal offence under s.33(7), punishable on summary conviction by imprisonment for up to 51 weeks, a fine, or both. The exemptions under s.34 are narrow: they include parents caring for their own children, nannies working solely within a domestic home, certain school-based provision and certain holiday or leisure activities meeting specified conditions.

The Childcare Register

The compulsory part of the Childcare Register (s.96) covers providers of childcare for children aged from five until their eighth birthday who are not required to register on the Early Years Register. Again, operating without registration is a criminal offence under s.96(5). The voluntary part of the Childcare Register (s.97) enables providers of childcare for children aged eight and over to register voluntarily – doing so enables them to accept Tax-Free Childcare payments and government funding vouchers. Voluntary registrants are subject to inspection but on a lighter-touch basis than Early Years Register providers.

Section 39: The EYFS Power

Section 39 gives the Secretary of State power to make regulations specifying the learning and development requirements and welfare requirements that registered early years providers must comply with. This is the statutory basis for the Early Years Foundation Stage (EYFS) Statutory Framework. The EYFS is therefore not merely guidance – it is a statutory instrument made under s.39. The current iteration is the Early Years Foundation Stage (Statutory Framework) Regulations 2021 (SI 2021/651), which came into force on 1 September 2021. Breach of the EYFS welfare requirements is actionable by Ofsted under s.49 (see below). The learning and development requirements are also enforceable, though in practice Ofsted uses the inspection framework rather than formal notices for this purpose.

Section 49: Welfare Requirements Notices

Section 49 empowers Ofsted to give a registered provider a welfare requirements notice where Ofsted is satisfied that the provider has failed to comply with the welfare requirements of the EYFS. The notice specifies the requirement breached, the steps the provider must take and the timescale. Failure to comply with a welfare requirements notice is a separate criminal offence under s.49(4). A welfare requirements notice is therefore more than an inspection recommendation – it is a legal instrument with criminal consequences for non-compliance. Providers who receive such a notice should seek legal advice promptly.

Sections 52–60: Disqualification

Section 52 empowers the Secretary of State to make regulations disqualifying certain persons from registering as, or working for, an early years or childcare provider. The current regulations are the Childcare (Disqualification) and Childcare (Early Years Provision Free of Charge) (Extended Entitlement) (Amendment) Regulations 2018 (SI 2018/794). These regulations set out the convictions, orders and other circumstances that trigger automatic disqualification. Section 53 enables persons to apply to Ofsted for a waiver of disqualification in specified circumstances. Sections 55–60 deal with the consequences of disqualification and the obligations on providers to report relevant information to Ofsted.

Key Amendments

The Childcare Act 2006 has been significantly amended since its enactment. The Children and Families Act 2014 amended several provisions relating to childminder agencies and the registration process. The Childcare Act 2016 inserted the extended 30-hours entitlement into the framework (adding s.7B and related provisions) and conferred additional duties on local authorities in relation to information and advice. The Education and Childcare (Telford and Wrekin) Act 2020 made a specific local amendment. More recently, secondary legislation has expanded the free entitlement to cover children from nine months (from April 2024) and 15 hours from nine months to 30 hours from September 2024, building on the original framework created in 2006. Each expansion uses the s.39 power to amend the entitlement regulations rather than primary legislation.

What This Means for Providers and Parents

For providers, the Childcare Act 2006 is not background reading – it is the legal source of almost every obligation they carry. Understanding which section of the Act underlies a particular requirement helps providers understand why it exists, what the consequences of breach are and what their legal rights are if they disagree with Ofsted’s interpretation or enforcement action. For parents, understanding that the EYFS is statutory (not guidance), that free entitlement is a legal right (not a policy), and that operating unregistered is a criminal offence (not a mere administrative failure) puts daily childcare decisions in a clearer legal context.