Commissioner for Children and Young People

Statement by First Minister and Deputy First Minister

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 goes unheard.

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 are guaranteed.

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 financial resources.

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 at www.allchildrenni.gov.uk.

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).

Legislative Basis

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.

Interpretation

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).

3) In determining whether and, if so, how to exercise his functions under this Order, the Commissioner shall have regard to
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 young persons.
· 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 Individual Cases

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 Authorities

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 complaints system.

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 exceptional circumstances.

Formal Investigations

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, Police Ombudsman).
· 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 12(1)

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.