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This report was not approved formally by the Committee prior to the suspension of the Assembly on 14 October 2002, but is published by order of the Speaker.

Committee of the Centre

Wednesday 4 September 2002


Commissioner for Children
and Young People Bill:
Committee Stage

(NIA 20/01)

Members present:

Mr Poots (Chairperson)
Mr Gibson (Deputy Chairperson)
Mr Beggs
Mrs E Bell
Dr Birnie
Ms Lewsley
Mr McMenamin
Mr McElduff
Dr O’Hagan
Mr K Robinson
Mr Shannon


Ms A Laird ) Assembly Officer, CARE
Miss H McDowell ) Supporter, CARE
Mr P Gilpin ) Consultant Legal Matters, CARE

The Chairperson: Welcome Ms Alison Laird, CARE’s Assembly Officer, Mr Philip Gilpin, CARE’s consultant on legal matters and Miss Hilary McDowell who is a supporter of CARE. The Deputy Chairperson will conduct the meeting, as I will have to leave shortly due to another appointment. Please make your presentation.

Ms Laird: I would like to introduce Miss McDowell, who is a supporter of CARE and is also a former deaconess of the Presbyterian Church in Ireland. She works independently of any denomination as a pastor and teacher with a lay ministry that crosses the community divide.

Thank you for the opportunity to give evidence to the Committee. CARE is a diverse Christian charity that incorporates a network of Christian homes offering hospitality; crisis centres offering support, advice and information to those with an unplanned pregnancy; and a network of foster families for adults with learning disabilities. We also operate the remand fostering scheme. We work on public policy issues throughout the UK, Brussels and at the UN.

When drafting our submission we consulted with youth and children’s workers from small and large church denominations, para-church organisations and parents.

Our evidence will focus on four key areas where the Bill could be enhanced: the rights, responsibilities, best interests and welfare of children; the accountability of the commissioner; the involvement of parents; and the definition of the child.

Our recommendations and observations are set in the context that CARE is committed to a vision of society in which the inherent dignity and worth of each individual is respected regardless of age, gender or any other distinctions that may be drawn. Neither children nor adults are autonomous. Human beings are essentially social, and throughout life we exist and are formed by the various social relationships that we build with others. So it is as social beings, and not as autonomous individuals, that we define ourselves and come to understand our responsibilities, rights and duties.

CARE also believes that every child is born into a family and a community that are to a lesser or greater degree dysfunctional. Families and communities have responsibilities in helping a child to develop — the parents in a unique way and the community in a more general way. This is the context in which we bring our recommendations and suggestions to the Committee. Mr Gilpin will now outline our specific concerns, starting with the rights, responsibilities, best interests and welfare of children.

Mr Gilpin: I would like to pick up on the four general areas that Ms Laird outlined and give more detail about CARE’s position in relation to them.

We have noted that there is some confusion throughout the Bill about the words "rights", "best interests" and "welfare". In some parts of the Bill "rights" are coupled with "best interests", while in others the phrase used is "rights or best interests". In some parts of the Bill the phrase "best interests" has been dropped in favour of the word "welfare". For the sake of consistency that mixture of phrases should be replaced by one phrase, "rights, responsibilities, best interests and welfare".

As regards the relationship between rights and welfare, Alexander Solzhenitsyn, the Russian who was imprisoned for many years under the Communist regime and who is a great advocate of human rights, said:

"But we have two lungs. You can’t breathe with just one lung and not the other. We must avail ourselves of rights and duties in equal measure."

CARE suggests that it is evident that where there is a right, there is also a corresponding responsibility. We would be doing a disservice to children and to society in general if we were to promote rights without creating an understanding of responsibilities also.

It may help if I were to provide two examples of how that might operate. The European Convention on Human Rights contains the provision that no one should be denied the right to education: we could turn that into its positive form by saying that the state must make suitable education provision. If one looks at that right in isolation and without building in the appropriate responsibilities then one could say that each child has the right to expect the state to provide education. However, that right is no good to a child, and it is not doing any good, if there is not also a responsibility on that child to avail of the education being offered to it. We believe that the right and the responsibility should be coupled together.

The UN Convention on the Rights of the Child contains an obligation to make suitable health provision available for children. However, it is no good for a child if the state fulfils its obligation and the child fails to take up the responsibility to avail of the health provision being provided.

Dealing with the issue of responsibility should be part of the commissioner’s remit. It would be very difficult to enforce responsibility in a coercive manner, and we suggest that the commissioner deals with it through promotion, education and by encouraging children to take up the rights being offered to them.

As regards the phrases "best interests" and "welfare", the underlying assumption of acting in the best interests of the child is a well-established practice: it is recognised in Article 3 of the UN Convention on the Rights of the Child. The welfare principle is recognised as the prevailing one in the Children (Northern Ireland) Order 1995. However, best interests and welfare may not necessarily accord with the rights of the child. Essentially, rights and responsibilities are individual issues for a child. The welfare and best interests of a child place it in the context of the wider community, whether that is the child’s family or the wider community in which the family resides.

We believe that there are different tests to be applied to ascertain the child’s best interests and rights. For example, a child’s best interests may include guidance and direction from adults, particularly parents. However, a narrow interpretation may seek to stress the autonomy of the child in decision-making.

CARE believes that children exercise volition: they can make observations and decisions and generate solutions to problems of various complexities from an early age in their development. However, children are, by their very nature, limited in terms of their procedural, declarative and factual knowledge. Quite simply, they have not been here as long as adults, and they do not have an adult’s experience to help them make good decisions. In general we believe that the children’s commissioner must be given the remit to take a holistic view and that a combination of rights, responsibilities, best interests and welfare in the Bill will do just that.

As regards accountability, the Bill gives the commissioner wide-ranging and strong powers. There is merit in having effective checks and balances to ensure that there is no misuse of those powers for the four areas for which they are needed.

First, although the First Minister and the Deputy First Minister should appoint the commissioner as outlined in clause 1 of the Bill, the Assembly should be required to ratify the appointment by cross-community vote. I will deal with the second and third areas together, namely, are the commissioner’s annual report and the three-year review. The Bill should require the Assembly to pass the commissioner’s annual report and the three-yearly review of the Act to the Committee of the Centre for analysis. We note the Committee’s recommendation, made in June 2001, that the commissioner should appear before it at least once a year to report on the welfare of the child, and that recommendation has merit. Finally, in relation to the commissioner’s accountability it is vital that, when he/she makes recommendations following a formal report on an investigation, each recommendation should be justified.

CARE believes that parents are in the front line of issues affecting children: we also believe that the Bill fails significantly in that the duties imposed on the commissioner by clause 3 do not include one to take reasonable steps to ensure that parents’ views are sought on the exercise of his or her functions. Without such input from parents, the commissioner will not receive a broad, representative view of the issues that should concern him or her.

We are pleased that clause 2(3) states:

"In determining whether and, if so, how to exercise his functions under this Act, the commissioner shall have regard to — (a) the importance of the role of parents in the upbringing and development of their children".

However, we are concerned that the rights and responsibilities of parents are not included in the Bill. Article 5 of the UN Convention on the Rights of the Child states that:

"States Parties shall respect the responsibilities, rights and duties of parents".

However, as I stated, rights and responsibilities appear to have been omitted from the Bill. CARE suggests that the commissioner be given a duty to consult with parents and that a permanent parents’ forum be established, just as there should be a children’s and young persons’ forum. The parents’ forum should advise the commissioner on the rights, role and responsibilities of parents, as well as what constitutes the best interests of children.

CARE feels that the definition of a child as given in clause 24 of the Bill is inadequate as it may be taken as not extending a role to the commissioner in relation to children prior to birth. CARE’s written submission outlines in detail the legal evidence, which points to the importance of pre-birth children being included in the commissioner’s remit. The most important reason for this is the preamble of the UN Convention on the Rights of the Child, which states that

"the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection before, as well as after, birth".

My colleague, Ms Laird, will provide information on the supporting medical evidence.

Ms Laird: The commissioner should be given a remit that includes pre-birth children on the basis that the medical evidence clearly indicates that the period of development in utero is extremely important to a child’s development after birth. Our written submission states that the mother’s diet during and even before pregnancy can have a huge impact on the health of her child.

The mother needs to have the correct intake of folic acid, iron, iodine, vitamins A and D, and long-chain fatty acids from fish oil, which are required for the proper development of the foetus. The use of tobacco and the intake of alcohol and caffeine can endanger the health and development of a child. Research suggests that a baby born at full-term and weighing over two and a half kilogrammes is more likely to grow steadily and suffer less illness. The development of heart disease, hypertension, diabetes and obesity in adults has been linked to foetal growth and birth weight.

New research has also indicated that a baby’s birth weight is influenced by the amount of social support that a mother receives during pregnancy. A study found recently that a mixture of support from the mother’s existing social networks and external agencies influences foetal growth and birth weight.

Many governments are beginning to acknowledge the importance of the pre-birth period. For example, the British Government’s Sure Start scheme, which is described as the

"cornerstone of the Government’s drive to tackle child poverty and social exclusion",

aims to

"improve the health and well-being of families and children before and from birth, so children are ready to flourish when they go to school".

Some reports from Canada have been included in our written submission. Canada is at the forefront of taking this stage in the development of a child’s life and pressing health and well-being issues. In September 1999 several Government agencies in Canada produced an overarching public policy report, which defines the period from conception to six years of age as a key area for action. Subsequently each of the partners in Canada’s National Children’s Agenda formed localised consultation groups, which pooled their proposed strategies.

An example from Prince Edward Island, which is representative of other areas of Canada, is included in our submission. The Prince Edward Island report, ‘For Our Children: A Strategy for Healthy Child Development’, states that one of the 13 key areas for action is pregnancy, birth and infancy. The evidence from which the researchers drew their conclusions has been included in our submission, as are their objectives, such as ensuring that pregnant women are not exposed to harmful toxins in the workplace and increasing the range of social support for women during pregnancy.

Some Assembly Members believe that the children’s commissioner should be given the best remit and the best opportunity to protect and promote the health and well-being of all children, and that is an area in which we could be at the forefront of legislation.

Miss McDowell: Good afternoon. My work is with normal people, but I cannot find any. I am eager to do what I can to help the children of our Province reach full potential. Whether they are disabled or able-bodied, I recognise the importance of giving them the best possible start in life. As we have heard, many influences are brought to bear on a child, not merely from birth, but while in the womb. I recognise the importance of that stage of development because I am a congenitally disabled person with seven disabilities from the womb. I believe, therefore, that the period from conception to birth is a vital stage at which we must consider the child.

As a person born with multiple disabilities, I plead for support for both mother and child during and after that vital period of development. In 1981, it was my privilege to write and direct the International Year of Disabled musical, which toured from Derry to Dublin and beyond. The cast consisted of 25 able-bodied people and 25 disabled people, and, believe me, at times the team needed the precision of a moon landing, the effort required to scale Mount Everest and the patience of Job. However, if the project taught me anything, it taught me the potential contribution that disabled people of every possible disability can make to society.

The point has, of course, been well illustrated in history. Sir Walter Scott had a disability; Franklin D Roosevelt suffered infantile paralysis; Beethoven was profoundly deaf; and who could forget the extensive social reforms pioneered by Helen Keller despite her multiple disabilities? More recently, according to a labour force survey carried out by the Department of Enterprise, Trade and Investment for spring 2001, disabled people made up almost 20% of the population of working age in Northern Ireland, with an estimated 67,454 in employment. That is a sizable contribution to our country.

During the International Year of the Disabled, one question posed was whether disability necessarily means inability. The resounding answer must be "no". Someone may be born with a disability, but the environment creates the handicap. Many positive and practical steps can be taken to reduce that handicap for us all. For example, environmental adaptation produces better access; changed attitudes foster acceptance and mutual understanding; schools, colleges and universities can facilitate integrated education; and where there are emotional problems, supportive counselling programmes for parent and child can be established. Additional support for a parent who receives a diagnosis of foetal abnormality is important.

My professional experience in a pastoral care role has led me to assert that it is impossible to equate one person’s suffering with another. Therefore I plead for both disabled and able-bodied children in the womb. Can we say that a disabled person suffers more than a divorcee? Does a bereaved person grieve more than those who have lost a limb? Suffering cannot be measured. Hearts break, bodies experience pain, and we all bleed. Parents, children and siblings should all be given support during the pregnancy period and after the child is born.

Concern is often expressed about a child’s potential quality of life. I confess that I will never win the World Cup: due to my physical abilities, I can be sure that I will never be on the winning team. However, how many George Bests are in this room? Is such ability normal? Yet some people consider having that kind of ability as a measure of quality of life.

In relation to intellectual capacity, not everyone has the opportunity to go to university. However, does that preclude them as regards quality of life? In spiritual terms, potential is measured only in eternity. God Himself knows the full potential of every individual. Through my experience with seven disabilities and a prognosis of a maximum of three weeks to live when I was born, I know that with God all things are possible. God put me on my feet literally at the age of eight. In dealing with quality of life, we must consider the whole person and value each child regardless of ability or disability.

The Prince Edward Island report, already mentioned by Mr Gilpin, states that one aim is for a happy, safe and secure childhood. Recent tragic events concerning Holly and Jessica have emphasised strongly the elusiveness of safety, security and happiness for our children in today’s society. Many pitfalls and circumstances are outside our powers to avoid. However, options are open, especially to those in Government, to lay down a secure foundation for the children of our land that will support parent and child, carers and those who in this context are vulnerable members of society.

Thank you for your consideration. It is because I have been there and bought the tee-shirt in the vulnerable area from conception to birth that I thank God that He enables me to wear that tee-shirt with joy, thanking Him for every day of life that I have been granted.

The Deputy Chairperson: Thank you.

Ms Lewsley: We hear the issues that you raise, particularly as regards the change of words concerning rights, responsibility, best interests and welfare. We have heard that one reason for the wording in the Bill is due to reserved matters over which the Assembly has no control. During the course of the Bill, there were some fractious moments with the Northern Ireland Office. Even to get to the stage we have is an achievement in itself. The fact that whoever becomes the commissioner for children in Northern Ireland will have much more powers and responsibilities than many others, including the commissioner in Wales or the ombudsman in Norway, must be a big advantage for us.

Although we are talking about the commissioner for children, another key area is the children’s strategy. How important will that be with regard to the commissioner for children being able to enhance his or her role?

Ms Laird: My understanding is that the children’s strategy is the Executive’s strategy for children. I am sure that the commissioner will have a role in implementing that, but I am not sure whether it will increase his or her power.

Ms Lewsley: It will not increase the commissioner’s power, but it is important from the viewpoint that the two need to be in parallel.

Ms Laird: It will certainly focus the commissioner in the first few years and set out priorities.

Mr Shannon: I agree that children thrive in a stable, secure and loving environment. How can the commissioner help to create healthy families?

Ms Laird: The commissioner can stand alongside parents, and that would initially set a culture. Parents have to be concerned about their responsibilities, their rights and their duty to their children, and the commissioner could encourage certain steps such as parenting skills and training — particularly encouraging parents at the pre-natal stage to go to classes to learn how to cope with their children. Those are important areas for which the commissioner could provide influence and encouragement.

Dr Birnie: Please elaborate on paragraph 14 of your written submission. You are arguing that in the Bill, as drafted, the concept of the rights of the child taking precedence over the rights of adults, especially parents, is novel. To what extent is the Bill novel in doing that? A phrase such as "the best interests of the child" is distinct from the so-called "rights of the child".

Ms Laird: The best example to indicate the difference between children’s rights and their best interests is that of a child having the right to associate with whatever other young person he would wish. A parent may look at the situation and believe that it is not in the best interest of that child to associate with a particular person. That example illustrates the continuing contest between children’s rights and their best interests, and that is why CARE recommends that rights responsibilities, best interest and welfare are lumped together so that the whole picture can be viewed.

The Deputy Chairperson: Thank you for your written submission. I wish you all safety, security and happiness.

4 September 2002 (i) / Menu / 9 September 2002