Commissioner for Children and Young
Statement by First Minister and Deputy
On 29 January 2001, the First Minister and the Deputy First
Minister made the historic announcement to the Northern Ireland
Assembly about their intentions to bring forward proposals
as soon as possible to establish an independent Commissioner
for Children in Northern Ireland. The First Minister stated;
"If there is one matter on which there is common ground
amongst all parties in the Assembly, it is surely our common
desire for a better, more secure future for our children.
To achieve that aim, we must act now, to ensure that children
can grow and develop in an environment in which their rights
are upheld, their safety is secured and their needs are met.
The Deputy First Minister and I, and our colleagues in the
Executive are in full agreement that this should be a high
priority for the Assembly.
We acknowledge also that this is a matter of concern for
many, and we have received representations from political
parties across the spectrum, individual MLA' s and children's
organisations. Last October, we told the Assembly that we
were determined to ensure that our arrangements for upholding
children's rights are based on best practice. Since then we
have been giving careful consideration as how best to achieve
that objective. We have examined the position in other parts
of the United Kingdom, in the republic of Ireland, and in
the rest of Europe. It was clear form this, that our current
arrangements lag some way behind. In England, for example,
a Children's Rights Director will be appointed next year;
in Wales, a Children's Commissioner has been appointed; and
in the republic of Ireland a Children's Ombudsman will be
appointed. The Scandinavian countries in particular, have
led the way, with countries such as Norway having established
Commissioners for children many years ago.
The children of Northern Ireland deserve no less. The Deputy
First Minister and I, and our Executive colleagues, are convinced
that we need a Commissioner to carry out this role. We are,
therefore, pleased to announce our intention to bring forward
proposals as soon as possible to establish an independent
Commissioner for Children for Northern Ireland. There are,
of course complex issues to be worked out in terms of the
precise role and remit of the Commissioner; statutory powers
and responsibilities that the office will have; and the relationship
with other statutory authorities. We need to consider issues
such as how the Commissioner could best represent children's
interests and advocate their needs. The Commissioner's role
might, for instance, include challenging public authorities
and investigating complaints. It might involve advising government
on policy, including the measures needed to meet our commitments
under key international human rights instruments such as the
United Nations Convention on the Rights of the Child.
It will also be important to have a wide ranging debate and
discussion before finalising proposals, including the opportunity
for children and young people and the organisations that represent
them to influence the way forward. We have, therefore decided
to initiate a comprehensive consultation process to give interested
parties an opportunity to put their views forward. We will
aim to begin consultation as soon as possible and to bring
legislative proposals before the Assembly at the earliest
opportunity thereafter. Mr Speaker, the establishment of a
Commissioner for Children is the most important proposal in
the field of children's rights for many years. It has the
full backing of the Executive and will, I hope be warmly welcomed
by the Assembly."
The Deputy First Minister then said;
"We have before us, an opportunity that we must not
miss. An opportunity to shape new arrangements for protecting
children and upholding their rights. An opportunity to put
Northern Ireland at the cutting edge of world practice.
I, like the First Minister and my Executive colleagues, believe
that the single most important element of these new arrangements
should be a Commissioner for Children. Too often our children,
particularly the most vulnerable, are neither seen nor heard
with the result that their needs can be overlooked. With a
Commissioner for Children acting as their champion, we hope
to change this and to ensure that no voice in our society
However a Commissioner alone will not be enough. To be truly
effective, the establishment of a Commissioner for Children
needs to be part of an overall strategy to address children's
rights and needs. Within that Strategy, a Commissioner will
act as an independent champion for children, outside government.
Other elements of the strategy will be needed to ensure a
joined up approach to children's matters within Government
and the Assembly; to give children and young people themselves
a strong voice; and to ensure that legislation and policy
continue to be shaped by research and best practice"
Consultation Paper on a Commissioner
for Children for Northern Ireland
A consultation paper was issued by the Office of the First
Minister and Deputy First Minister on 6 September 2001 called
"Protecting our Children's Rights; A Consultation Paper
on a Commissioner for Children for Northern Ireland".
A version of the document was also produced for children and
young people. The foreword states as follows;
"The establishment of a Commissioner for Children is
one of the most important developments since the coming of
devolution. It represents a significant milestone on the road
from conflict to a shared society where the rights of all
The Belfast Agreement has enshrined the principles of inclusion,
equality, human rights and citizenship in our system of government.
The challenge now is to ensure that these principles are applied
to the children and young people of Northern Ireland. The
establishment of a new public office of the Commissioner for
Children will help to translate those principles into protection
for children on the ground.
We are committed to developing a Commissioner's office which
is dedicated to promoting and protecting children's rights
in Northern Ireland and ensuring that the concerns of children
and young people are translated into policy making, priority
setting, and sustained resource allocation.
This paper sets out our proposals. They are drawn from the
best features of the arrangements in other parts of the United
Kingdom, the Republic of Ireland, throughout Europe and beyond.
We will give the Commissioner the tools to do the job- a full
range of functions and powers set down in legislation; a team
with the necessary skills and expertise; and the necessary
Our aim is simple- to put Northern Ireland at the leading
edge of best practice in the protection of children's rights"
All consultation papers and debates/legislation related to
the appointment of the Commissioner for Children can be accessed
on the website for the Children and Young People's Unit in
the Office of the First Minister and Deputy First Minister
The closing date for response to the consultation document
was 8 November 2001. The Children's Law Centre made a written
submission which is available in full in the members section
of this site which can be accessed by clicking on the member's
button on the top right hand corner of this page and inserting
your member's password. A hard copy of all submissions made
by the Children's Law Centre can also be requested on our
main administration line (90245704).
The Commissioner for Children and Young People Bill was laid
before Parliament on the 19 December 2002. It was debated
in the House of Commons on the 16 January 2003 and passed
through the House of Lords on 12 February 2003. The Commissioner
for Children and Young People (Northern Ireland) Order 2003
received Royal Assent on 27 February 2003.
The Commissioner for Children and Young
People (Northern Ireland) Order 2003
The Order has 27 articles and three schedules.
Title and Commencement
Article 1 deals with title and commencement.
Article 2 is the general interpretation clause. Article 3
provides that "child or young person" throughout
the order means a person under the age of 18. Certain young
people who are leaving care and are aged over 18 will also
fall within the definition as will young people under the
age of 21 with a disability.
Article 3(4) of the Order provides that anything which is
required or authorised to be done by a child or young person
may be done by his parent or any other person acting on his
behalf; and references in the Order to things done by a child
or young person include references to things done on behalf
of the child or young person. Article 3 (5) states that references
in the order to a child or young person in relation to any
legal proceedings include references to a parent or any other
person acting on behalf of the child or young person for the
purposes of proceedings.
Article 5(4) of the Order provides a definition of relevant
authority and article 4 (7) provides that any reference to
action taken by a relevant authority includes a reference
to action taken by;
a) a member or committee of the authority( if it is a body)
b) an officer or member of staff of the authority
c) any person acting on behalf of the authority
d) any person to whom the authority has delegated functions.
Office of Commissioner
Article 5 provides for the establishment of the Office of
Commissioner for Children and Young People and article 6 sets
out the principal aim of the Commissioner:
"(1) The principal aim of the Commissioner in exercising
his functions under this Order is to safeguard and promote
the rights and best interests of children and young persons.
(2) In determining whether and, if so, how to exercise his
functions under this Order in relation to any particular child
or young person-
a) the Commissioner's paramount consideration shall be the
rights of the child or young person
b) the Commissioner shall have regard in particular to the
ascertainable wishes and feelings of the child or young person
(considered in light of his age and understanding),
but, in his dealings with any person or body under this Order,
the Commissioner shall at all times have regard to any statutory
provision or rule of law which authorises or requires that
body or person to act in a particular manner or authorises
or requires that body or person to have regard to any consideration
other than that mentioned in sub paragraph (a).
|Article 3 (2) of the Commissioner
for Children and Young People ( NI) Order 2003 defines
the circumstances in which a care leaver over 18 will
fall within the definition of "child or young person"
Ibid art (3) (3). The young person must be a disabled
person as defined under the Disability Discrimination
3) In determining whether and, if so, how to exercise his
functions under this Order, the Commissioner shall have regard
a) the importance of the role of parents in the upbringing
and development of children; and
b) any relevant provisions of the United Nations Convention
on the Rights of the Child.
This means that the Commissioner must always place the rights
and best interests of child or young person first, having
regard in particular to their wishes and feelings. The Commissioner
must have regard to the role of parents when making decisions
under the Order and to any relevant provisions of the United
Nations Convention on the Rights of the Child. However, in
dealing with matters under this Order, he must also have regard
to other laws which allow/require agencies to act in certain
ways or consider matters other than the rights of the child.
Duties of the Commissioner
The duties of the Commissioner are set out at Article 7;
· promote an understanding of the rights of children
and young persons, an awareness of the importance of those
rights and a respect amongst children and young persons for
the rights of others and an awareness of matters relating
to the best interests of children and young persons.
· Review the adequacy and effectiveness of law and
practice relating to the rights and welfare of children and
· Review the adequacy and effectiveness of services
provided for children and young persons by the relevant authorities.
· Advising the Secretary of State, the Executive Committee
of the Assembly and a relevant authority on matters concerning
the rights or best interests of children and young persons.
He must provide this advice as soon as reasonably practicable
after receipt of a request for advice and on such other occasions
as he thinks appropriate.
· Take reasonable steps to ensure that children and
young persons and their parents are made aware of the functions
of the Commissioner, the location of the Commissioner's office
and the ways in which they communicate with the Commissioner.
· Take reasonable steps to ensure that children and
young persons are encouraged to communicate with the Commissioner.
· Take reasonable steps to ensure that the content
of any information published by the Commissioner takes account,
as far as possible of the age, understanding, usual language
and any disability of the children and young people who will
read the information.
· Take reasonable steps to ensure that the views of
children and young persons are sought about the way the Commissioner
exercises his functions.
· Take reasonable steps to ensure that the Commissioner's
services are available in the locality where children and
young people live.
General powers of the Commissioner
The powers of the Commissioner are set out in Article 8;
· Undertake, commission or provide financial or other
assistance for research or educational activities concerning
the rights or best interests of children and young persons.
· Issue guidance on best practice after consultation
on the rights and best interests of children and young people.
· Conduct investigations.
· Compile information concerning the rights and best
interests of children and young persons, provide advice or
information on any matter concerning the rights or best interests
of children and young people and publish material about rights
and best interests.
· Make recommendations to any person or body about
any matter concerning the rights or best interest of children
and young people.
General Review of Advocacy, Complaint,
Inspection and Whistle blowing Arrangements of Relevant Authorities
Article 9 sets out sets out the general reviewing and monitoring
functions of the Commissioner in relation to the operation
of advocacy arrangements, complaint arrangements, inspection
and whistle blowing arrangements of relevant authorities.
Relevant authorities are defined in Article 4 and Schedule
1 to the Order.
The Commissioner can review the operation of any of these
arrangements for the purpose of ascertaining whether, and
to what extent the arrangements are effective in safeguarding
and promoting the rights and best interests of children and
young persons. However, the Commissioner cannot exercise this
power unless he has reasonable grounds to believe that the
arrangements in question are ineffective in safeguarding and
promoting the rights and best interests of children and young
persons those arrangements have not been operated or have
been operated incorrectly. The Commissioner must also be satisfied
that there is no other body or person with power under any
statutory provision to review the arrangements.
It should be noted that in relation to those authorities
which are listed in Part 1 of Schedule 1, the Commissioner
can use the full range of investigative powers in respect
of a general investigation conducted under Article 9. However,
in relation to those authorities listed at Part 2, Schedule
1 (e.g. Northern Ireland Office, Police Board and Chief Constable,
Juvenile Justice Board, Probation Board, Legal Services Commission,
Police Ombudsman, i.e. those authorities which are the responsibility
of the Northern Ireland Office or Whitehall) the Commissioner
can only use the procedure set out in Schedule 3 without the
formal powers set out in Articles 16 - 23(see below) when
conducting a general investigation under Article 9.
Review of Advocacy, Complaint, Inspection
and Whistle blowing Arrangements of Relevant Authorities in
Article 10 allows the Commissioner to review the operation
of the above procedures in individual cases relating to a
particular child or young person. Again this is subject to
the test that the Commissioner must believe that there are
reasonable grounds for believing that the arrangements in
question were ineffective in safeguarding and promoting the
rights and best interests of the child concerned or that those
arrangements did not operate or operated ineffectively. The
Commissioner must be satisfied that there is no other body
or person with statutory power to carry out such an investigation.
If the Commissioner decides to conduct an investigation the
full powers of formal investigation as set out in Articles
16-24 are available.
Assistance with Complaints to relevant
Authorities/ Investigation of Complaints Against relevant
Pursuant to article 11, the Commissioner can assist with
a complaint by an individual child/young person against a
relevant authority, but only if there is no other person or
body likely to take such action. The Commissioner can investigate
a complaint against a relevant authority, but only if he is
satisfied that the complaint raises a question of principle
and the complaint does not fall within an existing statutory
Actions which may be Investigated;
Restrictions and Exclusions
Article 13 states that the Commissioner shall not conduct
an investigation into any matter where the complainant has
a right of appeal, reference or review to or from a tribunal
or a remedy by way of proceedings in any court unless the
Commissioner is satisfied that, in the particular circumstances,
it is not reasonable to expect the complainant to resort to
or have resorted to that remedy.
In addition the Commissioner cannot conduct an investigation
into the commencement of criminal proceedings or civil proceedings
by any person other than a relevant authority, the conduct
of civil or criminal proceedings or the commencement or conduct
of any proceedings before any international court or tribunal.
The Commissioner cannot conduct an investigation into any
matter which is or has been the subject of a public or local
inquiry and he must not conduct an investigation if he believes
that there has been an unreasonable delay in making the complaint
to the Commissioner.
Power to Bring, Intervene or Assist
in Legal Proceedings
Article 14 sets out the power of the Commissioner to bring
legal proceedings (other than criminal proceedings) in any
court or tribunal involving law or practice concerning the
rights or welfare of children or young persons (this means
the Commissioner could take a case in the Commissioner's own
name on behalf of children and young people or could bring
a case in the name of the child/young person or in the name
of their next friend /parent or carer/adult on their behalf).
The Commissioner also has power to intervene in any proceedings
involving law or practice concerning the rights or welfare
of children and young persons and the power to act as amicus
curiae in any such proceedings.
In all cases, the Commissioner must be satisfied that the
case raises a question of principle or that there are other
special circumstances which make it appropriate for the Commissioner
to deal with the case.
Assistance in relation to legal proceedings
Article 15 limits the power of the Commissioner to assist
in cases to those cases which raise a question of principle,
cases where it would be unreasonable to expect the child or
young person to deal with the case without assistance from
the Commissioner because of its complexity or other reason
or where there are other circumstances which make it appropriate
for the Commissioner to provide assistance.
Before granting assistance the Commissioner must be satisfied
that there is no other person or body likely to provide such
assistance. The Commissioner can arrange for the provision
of legal advice or representation when he grants an application
for assistance. The Commissioner also has the power to recover
expenses form a child or young person if he thinks it is reasonable
to do so. This power was queried in the House of Lords when
assurances were given that this power would only be used in
The Commissioner can carry out formal investigations under
Article 16 in relation to the following matters;
· A general review of advocacy , complaint, inspection
or whistle blowing arrangements made by a relevant authority
under Article 9 in relation to relevant authorities, other
than an authority listed in Part 11 of Schedule 1 (e.g. Northern
Ireland Office, Police Board and Chief Constable, Juvenile
Justice Board, Probation Board, Legal Services Commission,
· A review of advocacy, complaints, inspection or whistle
blowing arrangements made by a relevant authority in relation
to individual cases( Article 10)
· A complaint made by a child that his/her rights have
been infringed or that his/her interest have been adversely
affected by an action taken by a relevant authority ( Article
Article 16 sets out the procedures relating to a formal investigation.
Article 17 prevents the Commissioner from carrying out a formal
investigation into a matter in respect of which he has previously
brought, intervened in or provided assistance with legal proceedings.
The Explanatory Note to the legislation indicates that this
is to ensure that there is o conflict between the Commissioner's
advocate and ombudsman roles. Article 18 requires the Commissioner
top prepare a formal report of his findings if he conducts
an investigation. It should be noted that this clause contains
a confidentiality clause which means that the Commissioner
should not disclose individual names in the report unless
he believes it is necessary to do so. Where the report contains
recommendations the authority must consider the recommendations
and determine what action to take in response. Article 19
enables the Commissioner to take further action following
publication of a report on a formal investigation.
Article 20 enables the Commissioner to require any person
to supply information or produce information relevant to the
investigation. The Commissioner has the same powers as the
High Court in respect of the attendance and examination of
witnesses and the production of documents. No person can be
compelled to give evidence or produce any document which he
could not be compelled to give or produce in civil proceedings
in the High Court.
Article 21 empowers the Commissioner in certain circumstances
to enter into premises run by a relevant authority in which
a child or young person lives, is looked after, is detained
or where services are provided for the child/young person.
It enables the Commissioner to examine the state and management
of the premises and the treatment of children and young persons
there, inspect documents and records which are required by
any statutory provision to be kept there, interview in private
any child/young person and interview in private any other
person who is employed there. The parent of the child/young
person must be informed of the Commissioner's intention to
interview the child and the parent/s can attend interview
unless the Commissioner decides that it would not be in the
best interests of the child/young person for his parent/s
to be present.
The power of entry only applies to those investigations outlined
under Article 16 as set out above. The Commissioner is not
authorised under this article to enter a private dwelling.
It is a criminal offence to obstruct the Commissioner in
the conduct of a formal investigation.
Disclosure of Information by Commissioner
Under Article 23 the Commissioner can only disclose information
obtained during the course of a formal investigation for the
purposes of the investigation and the report of the investigation,
any proceedings for a criminal offence, any inquiry with a
view to taking criminal proceedings, any proceedings relating
to the obstruction of the Commissioner or health and safety
reasons of a person at risk.
Review of the Act
Article 24 provides that the Act will be reviewed after three
years when the Commissioner will be required to make a report
to the First Minister and Deputy First Minister.