The legal framework for educating child performers

Despite wider fiscal uncertainty, the UK’s creative industries remain a robust pillar of the national economy. Year on year, they generate significant employment opportunities for performers of all ages - including children and young persons (‘CYPs’). Major West End shows, long-running television dramas, feature films and streaming productions all regularly require children to undertake professional performance work, often over extended periods and during the school term.

While these opportunities can provide considerable educational and extracurricular benefits for CYPs (to say nothing of the excitement and financial rewards they can generate), they also raise the difficult question of how to balance the professional demands of working in the creative industries with the universal imperative that all CYPs of school-going age receive a suitable education.

Although this article refers principally to the law applicable in England, comparable statutory regimes govern the licensing and regulation of child performers in Scotland, Wales and Northern Ireland. Unless otherwise indicated, all references to legislation and regulatory guidance are to the law of England.

General principles

Section 7 of the Education Act (EA) 1996 sets out the general principle that parents are responsible for ensuring that CYPs of compulsory school age receive an education, ‘either by regular attendance at school or otherwise’. This obligation applies regardless of whether the CYP is engaged in professional performance work and is underpinned by the local authority’s duties to ensure compliance under sections 436A and 437 of EA 1996.

Given this statutory framework, the participation of CYP performers in the creative industries is replete with potential legal pitfalls. A standard West End or regional theatre schedule might require planned absences from school during the week (even where roles are shared between multiple CYP performers), and such pressures are likely to be even greater during the heady performance-heavy weeks of panto season.  The demands of working in front of the camera are potentially even greater - for whilst filming a small part for a movie or TV show may only require a day or two on set, a CYP actor in a leading role could find themselves filming five or six days a week, for months on end.

These difficulties are addressed by the Performance Licencing Regime, which creates obligations for parents, production companies and local authorities alike whilst also enforcing effective safeguarding standards for CYPs working in the entertainment industry.

The performance licencing regime for children and young persons

The local authority’s responsibility for regulating the employment of CYP performers is set out in the Children and Young Persons Act (CYPA) 1963, a wide-ranging statute that once covered (among other things) aspects of the care system, the juvenile courts, and the emigration of adopted infants. Much of it has since been superseded by more recent legislation, but section 37 of the Act is still in effect and provides that a CYP cannot take part in any live or recorded professional performance ‘except under the authority of a licence granted by the local authority’.

The detailed practicalities of the regime are set out in the Children (Performances and Activities (England) Regulations 2014 (‘the 2014 Regulations’). These clarify that the licence application must be made by ‘the person responsible for the production of the performance in which the child is to take part’ (usually an agent of the production company) and must be co-signed by a parent of the CYP. Furthermore, the 2014 Regulations identify the extensive information which must be provided to support an application, including the dates and times at which the CYP is expected to work, details of the proposed arrangements for education, and the name and address of any chaperones required.

The application should be made at least twenty-one days before the day on which the first rehearsal or performance (whichever is earlier) is due to take place. Where the applicant is unable to specify the precise dates on which the CYP performer is expected to work, the local authority may grant a licence that permits a total number of working days, but these days must all fall within 6 months of the issuing date.

Education

Section 37(4) of CYPA 1963 provides that the power to grant licences should be exercised subject to conditions that ensure the CYP’s ‘education will not suffer’, and Regulation 13(1) of the 2014 Regulations specifies that the local authority must not issue a licence unless it ‘is satisfied that the child’s education will not suffer by reason of taking part in the performances or activities, has approved the arrangements (if any) for the education of the child during the period to which the licence applies, and has approved the place where the child is to receive education’.

The remainder of Regulation 13 sets out the criteria for determining whether the proposed private tuition arrangements meet the required standard. In summary, the suggested course of study must be deemed satisfactory, and must be properly taught by a suitable person to a maximum of twelve students at any time (although where ability and attainment levels are more varied, this maximum class size reduces to six).

Furthermore, the CYP must receive at least three hours of education for each day that they would normally be expected to attend school. Whilst the Regulation makes it clear that this time can be aggregated, the leeway for doing so is strictly limited; education should only take place on normal ‘school days’, and the CYP must receive at least six hours of education per week, but no more than five hours in any given day. Whilst these strictures may appear somewhat convoluted, they are important safeguards to prevent producers leveraging lengthy teaching sessions held on weekends to discharge the educational burden.

Where the disruption to a CYP performer’s day-do-day educational arrangements is minimal (for example, where they continue to attend school during the day before performing in the evenings), Regulation 13 is unlikely to cause parents or local authorities any undue concern. Nevertheless, it is important to recognise that a licence is still required, and that the three-hour-per-day minimum provision will apply to mid-week matinee days; although as above, these hours could be aggregated across the length of the show’s run. As such, it is entirely possible that a CYP performer involved in a theatrical production may not require any additional teaching over and above the education they receive at school.

Similarly, where a CYP performer undertakes a very short period of screen work for which they need only miss a day or two of school, the likelihood is that the educational arrangements already in place for them will satisfy Regulation 13, allowing the local authority to reasonably conclude that their education will not suffer as a result of their involvement in the production.

However, the educational arrangements for a CYP performer engaged on a protracted filming contract are likely to require a far deeper level of scrutiny. A carefully planned and documented programme of on-set tutoring will almost certainly be required, and whilst it will be the production company’s responsibility to set this up, the local authority has a statutory duty to satisfy themselves that the requirements of Regulation 13 are met before issuing a licence.

Safeguarding

Regulation 15 provides that the local authority granting the licence must approve the appointment of a chaperone to ‘have care and control of the child’ and to ‘safeguard, support and promote [their] wellbeing’. A chaperone can look after a maximum of twelve CYPs at a time, although if the chaperone is also the private teacher responsible for educating those CYPs, this number drops to three.

However, Regulation 15(2) allows local authorities to disapply this requirement if supervision is being provided by a parent, or by a teacher who would ordinarily provide the CYP’s education. Parents can therefore act as a chaperone without needing approval from the local authority to do so. Crucially, teachers may only do so if they already ‘ordinarily’ teach the child, meaning that a private tutor hired to provide education during rehearsals or filming could only act as a chaperone with express approval from the local authority. As above, they would not be able to chaperone more than three CYPs at any given time.

Whilst the 2014 Regulations provide helpful guidance as to the day-to-day logistics of safeguarding for CYP performers, they in no way alter the local authority’s overall responsibility for safeguarding under the Children Act 1989 and the Children Act 2004. Local authorities must therefore exercise diligence and caution when approving chaperones and should be mindful that they retain overall responsibility for protecting CYPs who reside in their area, even if their performing work takes them outside the ambit of a typical educational setting.

Working hours

To protect CYP performers from being overworked, Regulation 20 provides that ‘a child taking part in a performance must not be employed in any other employment on the day of that performance or the following day’. Further, Regulations 21–22 set out detailed strictures on the earliest and latest times a CYP may arrive at or leave a place of performance or rehearsal, and the maximum number of hours a CYP may:

• be present at a place of performance or rehearsal;
• perform or rehearse in one day; and
• perform or rehearse continuously.

Regulation 23 specifies the breaks that CYP performers must be given during working hours, and Regulation 24 mandates that CYP performers must have an overnight break of a minimum duration of twelve hours.

The precise working patterns prescribed are dependent on the age of the performer, so production companies and parents should consult these Regulations closely. For example, a 4-year-old can only be at a performance venue for a total of five hours per day and cannot work for longer than thirty minutes at a time, whereas a 12-year-old could be at the venue for nine-and-a-half hours per day, and can work for up to 2-and-a-half hours without a break.

Conclusion

On balance, the legal framework explored above appears to strike a sensible balance by allowing CYP performers to take advantage of the unique opportunities afforded by the creative industries without compromising their learning or welfare. It provides parents, producers and local authorities alike with clear directions to follow - and provided everybody plays their part, the scene can be set for both professional and educational success. Our recommendation, like Hamlet’s to the players, is simple: Break a leg, not the law.

Benjamin Deery is a Paralegal at boutique education law firm SV Law.