Unscrupulous nurseries which try to evade their safety responsibilities by opening private schools will soon find that a legal loophole has been closed.
Government plans to make schools comply with the Children Act 1989 are being discussed and could be in force by September.
Officials drew up the proposal after they discovered that unscrupulous nurseries were deliberately setting up as independent schools to avoid having to meet Children Act standards.
A consultation paper says: "It is known that several independent schools started as private nursery schools, and recruited a small number of compulsory school-age children only when they had run into difficulties with their local authority Children Act inspections."
Childcare provided by schools is currently exempt from the Children Act. The paper says that this means young children, particularly under-threes, are at greater risk of harm "because of the more lax quality controls over schools' childcare facilities".
The Department for Education and Skills is worried that schools can undercut competitor nurseries on price because they are able to operate to lower standards, for example with a lower ratio of adults to children.
More than three-quarters of private schools offer childcare for under-fives, while 45 per cent cater for under-threes. The number catering for under-threes has grown by 150 per cent in the past five years.
By 2001 there were nearly 200 private schools with more children under five than of compulsory school age. The paper says that educational provision for under-fives is unsatisfactory or poor in a "significant minority" of independent schools.
Some fail to make police checks on staff, and others have rooms for very young children with no access to toilets or running water.
Under the current arrangements these problems would only be spotted by school or nursery education inspections, which might only happen every six years.
If the plans go ahead, childcare facilities in private schools will be subject to registration, inspection, investigation and enforcement actions under the Children Act.
Tony Hubbard, director of the Independent Schools Inspectorate, which inspects about half the country's private schools, said: "This is an important step and an extremely welcome one."
And John Morris, general secretary of the Incorporated Association of Preparatory Schools, said "We're very happy with the consultation."
He said schools which were members of the Independent Schools Council should have nothing to fear from proper regulation.
Private concerns: nursery providers who use an anomaly in the law to avoid the scrutiny of the Children Act can put youngsters at risk 18 TES march 22 2002 www.tes.co.uk Problems included:
* no checks on staff criminal records
* inadequate staff:child ratios
* overcrowded premises with insufficient play space
* rooms for very young children with no access totoilets or running water
* inadequate heating
* no designated area for babies to sleep in