THE CHILDREN'S LAW CENTRE’S RESPONSE TO THE CONSULTATION PAPER ON A COMMISSIONER FOR CHILDREN FOR NI

The Children's Law Centre very much welcomes this opportunity to comment on the proposals contained in the consultation paper on the establishment of a Children’s Commissioner. Our comments are drawn from our direct experience in working with children and young people in the promotion and protection of their rights and in particular in our advice, representation and legal work in the realisation and delivery of children’s rights. The views in this paper have been significantly informed by the children and young people we work with and through consultation with them.

It would be our belief that the establishment of the Office of the Children’s Commissioner cannot be divorced from the context in which the discussion is being conducted. We are a society emerging from 30 years of conflict and engaging on a process of building new structures, which will protect and promote the rights of all our citizens. It is therefore correct that the Executive and the Office of the First and Deputy First Minister should have recognised the centrality to this of the establishment of the Office of a Children’s Commissioner to champion the rights of our most vulnerable citizens, our children.

If we are successful in establishing an Office of Children’s Commissioner which will, as the then Deputy First Minister espoused on 29 January 2001, “put NI at the cutting edge of world practice.” this would undoubtedly be remembered as one of the key achievements of this Assembly not only in protecting our children but in building the peace.

OFMDFM are to be commended for the resources and more importantly the commitment with which they have undertaken to deliver on the January announcement to establish this office and the open and innovative way with which they have executed the consultation process. Their genuine commitment to engage not only with the sector but directly with children and young people will, we hope become a model on which to further develop good practice in the future. We believe the consultation process to date has been a very positive experience for all concerned.

The format of this response will be a detailed response by chapter.

Chapter 1

We welcome the recognition in 1.1.3 that legislation alone cannot deliver the protection of children. It would be our experience that children are not fully aware of the fact that they are the owners of rights and because of the power imbalance which exists between adults and children, have limited understanding of the potential to give effect to those rights or to challenge in any way the denial of those rights. We therefore fully endorse the sentiments in 1.1.3 which indeed reflect the views of the First and Deputy First Minister expressed at the time of the announcement.

We are obviously convinced of the urgency to establish the Office of the Children’s Commissioner, however we would caution that, if necessary, it is better to take a little longer and “get it right” than to establish an Office which fails to deliver on the expressed wish, to establish the best model for a Children’s Commissioner anywhere in the world.

Chapter 2

The Children's Law Centre fully endorses the sentiments expressed in 2.1.

We very much welcome the recognition that the welfare needs of children must be viewed in the context of the rights of children especially in the context of the United Nations Convention on the Rights of the Child. We also fully support the view that children are the inherent holders of rights independent of other human beings. By ratifying the United Nations Convention on the Rights of the Child the State has committed itself not only to delivering the rights therein but by implication to empowering children to realise those rights. The establishment of the Office of the Children’s Commissioner is an important step on the part of the Executive and OFMDFM in delivering on that obligation.

The experience of the Children's Law Centre would support the analysis in 2.4 as to why children need a special mechanism to protect their rights. In addition we would reiterate our considerable experience that there is an almost universal lack of awareness on the part of children that they have rights and an even greater knowledge deficit as to how to realise those rights.

We look forward to being involved in the future development of the children’s strategy which we believe will significantly compliment the work of a properly empowered and resourced Children’s Commissioner.

The recognition in 2.5 that the arrangements in respect of Children’s Commissioner vary significantly in jurisdictions throughout the world where they currently exist re-enforces the need to “tailor make” the NI Children’s Commissioner to reflect the needs and context of this jurisdiction.

We fully endorse the analysis that the Children’s Commissioner should and could add value the net benefit of which would be the greater recognition and realisation of children’s rights.

Chapter 3

In responding to this chapter we have chosen to answer questions as they are discussed in the chapter as opposed to answering the questions listed in 3.7. We hope this is acceptable.

The partnership model advocated in 3.2 would appear to us to sensible but only in the context of the Office of the Children’s Commissioner having such powers as are necessary to ensure those so charged, execute their statutory duties fully and correctly in respect of children and young people.

In 3.3.1, promoting rights, advocacy, advice and watchdog functions, under bullet point five it would be the view of the Children's Law Centre that the duty should be to receive and advise as opposed to receive and comment. This put a more onerous duty on the Children’s Commissioner to ensure the legislation is compliant with children’s rights. It would be our belief that there are 2 distinct elements to this which are slightly confused by the current presentation. The first function would be to assess draft legislation and policy for compliance with domestic and international human rights standards i.e. human rights proofing, while the second is in respect of equality proofing. It is difficult to see how human rights proofing the legislation could be conducted during the process of consultation on the s75 duty, which is carried out by the relevant public authority. The Office of the Children’s Commissioner should have a clear and discreet duty to child and human rights proof all draft legislation and policy with particular reference to the domestic and international human rights standards as they relate to children and in particular the United Nations Convention on the Rights of the Child.

In bullet point 6 in the interests of completeness we would suggest the extension of the list of instruments to monitor against to include all international human rights instruments, because while they may not be child specific they almost invariably apply to children e.g. the UN International Covenant on Civil and Political Rights, while not child specific applies to children.

In the last bullet point in this section we would propose that the Commissioner should make recommendations to the organisation AND the appropriate Government body or public authority i.e. the “or” should be deleted as there should be no discretion in this matter. This would ensure appropriate Government bodies and public authorities are appraised when there is or may be an issue in respect of children’s rights. Thereby ensuring the best possible protection for children and young people.

Ombudsman Functions

In bullet point 3 in the Ombudsman Section we believe that the Commissioner should not as a matter of course become involved in complaints nor should s/he act as an appellate body for complaints. There is however in our experience a gap. In some circumstances, despite there being an appropriate body for complaints, the body so charged fail to receive complaints, are slow to act on the complaint or fail to act on them. This would be of particular concern in circumstances when children are most vulnerable e.g. when they are in the care of the State. It is envisaged that these circumstances would be rare, but given the particular vulnerability of such children who when the complaints procedure fail them have no other avenue, we would propose that the Children’s Commissioner should have limited power to take complaints in circumstances either where there is no one else to deal with the complaint or where the body who has responsibility to deal with the complaint fails to do so at all or appropriately. The Commissioner would exercise their discretion accordingly and act appropriately given the particular circumstances of the complaint.

It would be the strongly held view of the Children's Law Centre, drawn on our experience, that it is imperative for the Children’s Commissioner to have the function to carry out investigations and inquiries, to intervene as a third party and amicus curiae, to support children to take cases including providing financial support and, vitally, given the difficulty and fear children experience in defining legal issues and taking them forward, the Commissioner must be able to take cases in his/her own name. (In the interests of clarity we have read in bullet point 7 of the Ombudsman function to bring proceedings in his or her own rights as being able to take cases in his/her own name. We hope this is correct.)

In respect of representing children we believe that the function of the Commissioner in representing should be extended beyond just court proceedings to include other fora where children’s rights are determined e.g. tribunals or suspension and exclusion hearings. We believe this is vital given the fact that a huge number of areas of children’s rights are determined other than through the Courts. Obviously this function would be executed in a strategic way and in the discretion of the Commissioner.

We believe the functions of the Office of the Children’s Commissioner should include all those listed in 3.3.1 under the heading Research and Good Practice.

It is entirely appropriate that the Commissioner should review the role, functions, powers and remit of the Office and make recommendations accordingly.. However we believe that should happen after 2 not 3 years. We believe that after 2 years the Commissioner would be well appraised of the deficits in respect of the Office and be enabled to make suitable recommendations. A deferring of undertaking a review for a further year could, if the review touched upon a key function or power, result in further denial of children’s rights by virtue of there not being a recourse of action available to the child.

3.4 The Powers of the Commissioner

The Children's Law Centre believe that the Office of the Children’s Commissioner should have all the powers necessary to ensure the Office is “Paris Principle” compliant and to enable the Commissioner to carry out all the functions necessary to promote and protect the rights of all children in this jurisdiction. We believe that the Office of the Children’s Commissioner should have ALL the powers listed in 3.4.2 with the following provisos.

Accepting that in the exercise of all his/her powers the Commissioner should have due regard to the child’s right to confidentiality and to the rights of others, we believe that it is not necessary to qualify the right to call for persons and papers as it is qualified in the document. This qualification could be used as a means of obstructing the Commissioner in the exercise of his/her functions. Indeed we would be concerned if such a qualification existed given the power imbalance, which usually exists in circumstances where children’s rights have been denied, undue pressure could be brought to bear on the child to refuse access. A possible scenario might be where a child lives in a children’s home and the Commissioner is carrying out an investigation into alleged breaches of children’s rights. Those who are effectively the subject of the investigation, i.e. those who run the Home could bring pressure to bear on the children to with hold their consent.

Further while the interests of children and parents are in the vast majority of cases the same and most parents have a child’s best interest as their prime consideration there are unfortunately cases where that is not the case. In those circumstances the refusal of the parent to consent to sight of papers could potentially thwart the Commissioner in effectively protecting the child’s right.

We would have sufficient trust in the Commissioner not to abuse the power and in the rights balancing exercise to respect the child’s right to privacy while always executing his/her powers in the child’s best interests.

Given the particular vulnerability to abuse of children in public and private institutions, we need only think of the recent Waterhouse Tribunal Inquiry in Wales, we believe very strongly that it is imperative that the Commissioner has powers to access all private and public institutions and interview children within those institutions. While it is appropriate in such circumstances to have due regard to the wishes and rights to privacy of the child, paramountcy in these circumstances should always be given to the best interests of the child.

In respect of bullet point 4, 3.4.2, we support the power as currently worded but feel there is a need to empower the Commissioner to assist children in connection with other proceeding which may not immediately be defined as legal proceedings but which have far reaching effects on the child’s rights and may be strategically important e.g. school suspension hearings. Accordingly the power in bullet point 4 to assist children, including financially, should be in connection “with legal and other proceedings in respect etc.”

The Children's Law Centre believes it is appropriate for there to be an offence of obstruction the Commissioner for Children. Such a precedent exists in Schedule 8 Health & Personal Social Services (NI) Order 1972

3.5 How would the Commissioner work with other Organisations

The Children’s Commissioner should be established totally independently of other bodies and Commissions currently in existence, most notably independent of the Equality and Human Rights Commissions. The Office of the Children’s Commissioner, by virtue of the nature of it’s work and the culture and ethos within which it needs to operate, must be accessible and child friendly. This clearly mitigates against it being part of or linked to another Commission. The Office of the Children’s Commissioner must be totally independent.

We believe it is totally appropriate for the Commissioner to work in partnership with other organisations on children’s and human rights issues. It would appear to us that the creation and operation of a published Memorandum of Understanding is a sensible way to ensure all organisations are working together in the best interests of the child. We welcome the proposal that these should be published in an understandable way for children, . It is highly appropriate that the Commissioner should retain an umbrella monitoring and watchdog role as envisaged in 3.5.2.

It is our view that a Memorandum of Understanding between the Children’s Commissioner and the Human Rights Commission is sufficient to ensure there is no overlap in the discharge of the statutory functions in respect of both statutory Commissions. A precedent currently in exists in the form of a Memorandum of Understanding between the Human Rights Commission and the Equality Commission to ensure the proper execution of the respective statutory functions of both bodies. It is our understanding that this was developed in the absence of the course of action suggested by the Corrigendum Slip. Given this precedent the Children's Law Centre fail to understand the difference in this circumstances and consequently would support the proposed Memorandum of Understanding as suggested in the original document which in turn would preserve the integrity of the independence of both Bodies.

3.6 Remit

The Children's Law Centre welcome and endorse the proposal in 3.6.3 that the remit of the Children’s Commissioner should include all children in NI up to the age of 18 and should be extended to include young people who have been looked after by public authorities up to the age of 21 years. We also believe that the Commissioner should have jurisdiction for young people with a significant disability who are on the disability register up to the age of 21.

We agree that the Commissioner should not become involved in individual disputes between a child and his/her parents/guardian, nor in disputes between parents or guardians concerning the exercise of parental responsibility unless after a thorough assessment of the situation, the Commissioner believes that it is in the best interests of the child to do so. We believe the best interest principle is a better yard stick for these very limited number of intervention than as currently worded in 3.6.5.

We fully agree that the Commissioner should not take over the functions of currently existing statutory bodies but should have an over view role and a role in ensuring they exercise their statutory duty correctly from a children’s rights perspective.

The remit of the Children’s Commissioner should include all children in this jurisdiction including those who come under reserved and excepted matters. These children are often among the most vulnerable of our children and consequently those who might benefit most from the protection of a children’s champion. The position, that a child in a children’s home whose rights are being abused can enjoy the protection of the Children’s Commissioner while a child of the same age in a juvenile justice centre equally having their rights denied, cannot have recourse to the same champion, is not sustainable. Approval of the Secretary of State under the NI Act 1998 should be sought to have these children fall within the remit of the Children’s Commissioner.

We support the contention that the Commissioner should have remit for all children living temporarily within this jurisdiction and this is compliant with the United Nations Convention on the Rights of the Child. We also recognise that the Commissioner’s role in respect of children living outside this jurisdiction would generally of necessity be limited. However the Children's Law Centre believe there should be a role for the Children’s Commissioner in respect of Hague Convention cases.

Chapter 4 Appointments and accountability arrangements

We fully endorse the assertion that the appointment and accountability arrangements for very important. It is vital for the effective functioning of the Commissioner that the Office of the Children’s Commissioner is not only totally independent of Government but is seen to be independent. The appointment and accountability arrangements are central to the independence and perception of independence of the Children’s Commissioner. In addition the Commissioner must be accountable not only to Government as a statutory body but also accountable to children.

Recruitment and the appointment process should be independent of Government, open, transparent and based on merit. Appointment should be in accordance with the Code of Practice on Public Appointments. Children and young people should be provided appropriate training and facilitated to participate as fully voting members in the recruitment process for the Children’s Commissioner. Children and young people and NGO’s working directly with children and young people should be consulted specifically as to how best ensure genuine participation of children and young people in the recruitment process.

In respect of Appointment arrangements it would be the view of the Children's Law Centre, given the deHont style administration operative in this jurisdiction, that to ensure ownership of the Office of the Children’s Commissioner by the body politic, appointment should be the Executive of the Assembly

In respect of the duration of the Commissioner’s term of Office we concur with the proposal in 4.2.10. We believe that a four year term renewable once would enable the Appointee to build up the necessary expertise and experience and enable them to be an effective engine for change.

In respect of accountability a statutory body the Office of the Children’s Commissioner would be subject to judicial review which should ensure the Children’s Commissioner acts within their statutory remit. In addition as a public body the Office of the Children’s Commissioner would be subject to the scrutiny of the Assembly’s Public Accounts Committee. The Commissioner would also be required to submit an annual report to the Assembly and to Westminster. In the event of the establishment of a Minister for Children with an associated Statutory Committee on Children it would be appropriate to have the Children’s Commissioner submit to that Committee.

The Children's Law Centre believes that there should also be non statutory methods of accountability established by the Commissioner as a matter of good practice. These should include an advisory group of children and young people, s75 compliant, who would exercise an accountability function for the work of the Children’s Commissioner. It is vital that this group of young people is fully supported to exercise it’s role effectively.

It would be totally inappropriate for the Commissioner for Children to be accountable to the NI Ombudsman as this would create a hierarchy of Commissioners/Ombudsman which could interfere with the effectiveness of the work of the Children’s Commissioner. Sufficient accountability mechanisms, comparable to those applicable to other NDPBs, have been detailed.

Resources

It would be the view of the Children's Law Centre that to ensure Paris Principle compliance and the effective working of the Office of the Children’s Commissioner,

the Children’s Commissioner needs to be properly resourced. We note that the First Minister in an answer to a question on Monday 29 January 2001 referred to the budget allocation of the Commissioner in Wales of £800,000 as being a possible bench mark for funding for the Office of the Children’s Commissioner. It would be our view given the special needs of children and young people in respect of the Office of the Children’s Commissioner, including the need to produce accessible information, the huge awareness raising task among children and the need to provide support to enable the involvement of children and young people in addition to the other functions of the Commissioner, a budget in the region of at least £2 million in the first instance would more realistically reflect the scale of work which needs to be undertaken.

Conclusion

The establishment of a Children’s Commissioner with a remit for all our children, with all the necessary powers and properly resourced has the potential to establish NI as a leader in the field of Human and Children’s Rights and will be recognised as one of the achievements of the first Assembly. We hope that the legislation which flows from this consultation process seizes that opportunity to secure for us the position of world leader in this most important arena of human rights.

The Children's Law Centre would once again like to commend OFMDFM and especially the Human Rights Unit for all their work in the production of this consultation document. This has been a unique and positive experience in the history of consultation in this jurisdiction, which we hope will survive through to completion and spread by example to other statutory and public bodies

We trust our comments are beneficial and clear, if however you require any further clarification or expansion please do not hesitate to contact us.