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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 11 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
Mr Dalton
Mr Ervine
Ms Lewsley
Dr McDonnell
Mr McMenamin
Mr McNamee
Dr O’Hagan
Mr K Robinson
Mr Shannon


Ms P Leeson ) Childcare Northern Ireland
Ms P Kelly ) Children’s Law Centre
Ms K Yiasouma ) Include Youth
Ms E Quinn ) Include Youth

The Deputy Chairperson: The Committee welcomes Ms Pauline Leeson from Childcare Northern Ireland, Ms Paddy Kelly from the Children’s Law Centre and Ms Koulla Yiasouma and Ms Edel Quinn from Include Youth. I am afraid that my Japanese is not very good.

Ms Yiasouma: I am of Greek Cypriot descent.

Ms Leeson: I am the director of Childcare Northern Ireland, which is the umbrella organisation for the voluntary childcare sector. This is the second part of a joint submission from the Putting Children First campaign. Last week, several of our organisations spoke about parental responsibility and the roles of children; this week we are raising more detailed and technical concerns about the legislation. I wish to stress that this is an agreed position between the Putting Children First campaign and Childcare Northern Ireland.

We acknowledge the commitment and work that the Committee of the Centre and the Office of the First Minister and the Deputy First Minister have already put in to the Commissioner for Children and Young People Bill. We hope that our proposed amendments will be seen as constructive, as their purpose is to improve the legislation and to enhance the lives of children in Northern Ireland.

Ms Kelly: I am the director of the Children’s Law Centre and I speak on its behalf, and specifically on behalf of Save the Children, under the umbrella of the Putting Children First campaign.

The Children’s Law Centre is an independent charity that provides legal advice, information, and representation to children, young people and their parents in key areas that affect the lives of children and young people. We work with children and young people, their parents, voluntary organisations and statutory professionals in the best interests of children. We also undertake research and training on children’s rights and we are advised by a children and young person’s advisory group, Youth at Children’s Law Centre.

Since coming into operation almost two years ago, our free telephone advice line for children and young people has dealt with almost 2,000 enquiries from children and young people. That is in addition to other advice calls and cases taken by the centre. Most of these calls are made by parents or other adults on behalf of children. That experience has informed our submission to the Committee on the Bill. I congratulate the Committee on its work on the Bill. This will ensure that the Commissioner for Children and Young People Bill lives up to the hopes that we all had of it when it was announced by the First Minister and the Deputy First Minister: to put Northern Ireland at the cutting edge of world practice.

We welcomed the introduction of the Bill in June and congratulate all those who have worked so hard to get us to this stage. There are many very positive things in the Bill that we believe will make a huge difference to the lives of our most vulnerable children. However, we believe that the Bill can be strengthened to afford better protection for our most vulnerable children. In so doing, we believe that we can put Northern Ireland at the cutting edge of world practice.

In our written submission to the Committee, the Children’s Law Centre and Save the Children said that it might be useful to outline the amendments that we felt would strengthen the Bill and explain our reasoning. Our submission is consequently quite lengthy and technical. It is not my intention to go through it in detail today, although I will be happy to answer any questions that you may have.

To make best use of the Committee’s time and to avoid repetition, Putting Children First has decided to divide the issues that we wish to raise with you today. Ms Yiasouma will detail certain aspects of the Bill on which the Children’s Law Centre and Save the Children share positions.

We welcome the provision in clause 2(1) of the Bill that requires the commissioner

"to safeguard and promote the rights and best interests of children and young persons".

That is the right standard to which the commissioner should work, and that should be reflected throughout the Bill.

Other people take decisions about the welfare and/or best interests of children. When a decision is taken with the "welfare" of the child in mind, it is taken from the perspective of the agency or the adult. When a decision is taken in the "best interests" of the child, that is a much more holistic approach. It is a decision taken after listening to the child and taking into consideration their views, wishes and feelings, and the age and maturity of the child. It is a much more comprehensive consideration in which the child is placed centre stage in the decision- making process.

"Best interests" is accepted as the international standard in respect of children’s rights. It would be unfortunate if the Bill set a lower standard than the highest international standards, and so failed to deliver what the Ministers intended when they announced the establishment of a children’s commissioner — to put us at the cutting edge.

The UN Convention on the Rights of the Child (UNCRC) establishes "best interests" as the standard to which public authorities must adhere with regard to children and young people. That is increasingly accepted in domestic legislation and interpreted by domestic courts. The term "best interests" is regularly used in High Court judgements. The European Court of Human Rights has referred to the "best interests of the child" in its judgements. European and domestic courts are increasingly looking to the UNCRC for guidance in respect of international standards of children’s rights.

In keeping with the highest standards of children’s rights, we believe that the paramount consideration for the commissioner for children and young people should be the "rights and best interests of children and young people". That should be reflected throughout the Bill, which should be amended accordingly.

The Children’s Law Centre and Save the Children believe that there is another weakness in the Bill. The commissioner is the final stop on the bus run with regard to investigations and acting on complaints. That will present huge problems for children who desperately need the commissioner. Children and young people will have problems gaining access to the commissioner, and that will significantly reduce the effectiveness of the office. There are several considerations here concerning the way children relate to the adult world.

Children are vulnerable to abuse, and when children’s rights are abused, they need adults to take action immediately. Delays can have huge implications for children. Children do not think like adults and do not define what is happening to them in the same way as adults. They do not think, I must get the complaints procedure examined by the commissioner. They think, I have been abused; my rights have been denied; I need to get that dealt with by the commissioner.

Children, especially the most vulnerable, are reluctant to identify themselves or expose themselves further. They also have difficulty in accessing support when they are in difficulty and, if referred on, will often let matters drop. That has been the experience of the Children’s Law Centre in working with children and young people.

I shall give you an example of how that element of the Bill will fail children. If a child is in a children’s home and is, hypothetically, being physically abused by several members of staff, the nature of the power relationship and the fact that the child has to continue living there means that the child will be reluctant to raise the issue in the first instance. What will happen if the child manages to gain the confidence to raise the issue, and approaches the commissioner for help, only for the commissioner to say, "What is happening to you is awful, but before I can do anything you must go back and use the complaints mechanism in the children’s home"? The child will think that adults have failed him again and will let the matter drop.

If the child is persistent and lodges a complaint, and the complaints mechanism does not deal with the abuse, the child will almost certainly let the matter drop at that stage and allow the abuse to continue. Even if the child is exceptionally persistent and asks the commissioner for further help after going through the complaints system, the commissioner cannot deal with the abuse, but can only review the complaints mechanism. The child will wonder what the point of the process is. That scenario could potentially unfold under the Bill as it is currently drafted.

For a child, the investigation of the complaints mechanism is far removed from the abuse that they have suffered. One can only have sympathy with a child who has been physically abused and has had the courage to raise the issue, only to be pushed from pillar to post and told that all that the children’s champion can do is to review the complaints mechanism. Most adults would give up — a vulnerable child living in an institution would most certainly despair and walk away.

The Children’s Law Centre suggests that this defect in the Bill can be remedied by the deletion of clause 8(2)(b), which restricts when the commissioner can investigate a complaint. If that amendment were agreed to, the commissioner would still be required to exercise discretion when taking up a complaint and would obviously be subject to review by the courts in the exercise of that discretion. However, that amendment would allow the commissioner to carry out an investigation on an individual complaint in exceptional circumstances. It is also worth noting that no such restriction applies to the Human Rights Commission, which can investigate individual complaints.

I want to raise specific points on clauses 10(4), 10(5), 11(4) and 11(5). The commissioner has no enforcement powers. Therefore, if the commissioner carries out an investigation under clauses 6 or 8, and the body that is being investigated ignores the commissioner’s recommendation and refuses to do anything, the child has no other remedy through the commissioner’s office, especially because clauses 10(4), 10(5), 11(4) and 11(5) preclude the commissioner from supporting or taking a case if there has been a previous investigation.

Those clauses may have an effect exactly opposite to what is intended. If the commissioner has no enforcement powers, because of clauses 10(4), 10(5), 11(4) and 11(5) the commissioner may choose to go directly to litigation rather than taking a possibly less adversarial approach to an investigation. Those clauses are probably unnecessary, because the commissioner is still bound to exercise his or her discretion properly and would be subject to judicial review for failing to do so. The Children’s Law Centre believes very strongly that those four subsections should be deleted. Again, no restrictions of that kind apply to either the Equality Commission or the Human Rights Commission.

Because of time limitations, I have referred only briefly to some of the amendments to the Bill that we believe would make the commissioner more effective in protecting children. I am happy to answer questions on any issues raised in the written submission.

The Deputy Chairperson: Thank you for your presentation. It contained some cogent arguments.

Ms Yiasouma: As the director of Include Youth, I thank the Committee for inviting my organisation, as part of the Putting Children First alliance and Childcare Northern Ireland, to give evidence in relation to this important legislation. I am joined by Edel Quinn, who is our policy co-ordinator. Ms Quinn will answer any questions that I cannot.

Include Youth commends Assembly Members, officials of the Office of the First Minister and the Deputy First Minister and, particularly, the Committee of the Centre for the energy and commitment that have been applied at all stages of this process to ensure that Northern Ireland has a children’s commissioner who is a world leader and places the best interests of all children at the centre. Include Youth has also informed its submission by talking directly with vulnerable and challenging children and young people on the issue, and a variety of practitioners and people working directly with children.

I will briefly draw the Committee’s attention to some of our key concerns about the Bill. I will attempt to keep my submission brief — which would be a personal first for me — to allow time for questions and to account for the detailed written submission that Include Youth has already provided to the Committee.

First, I would like to discuss child proofing. A duty should be imposed on the commissioner to monitor legislation and policies for compatibility with international human rights standards and the principles of the best interests of children. All legislators and policy-makers should be required to send all proposed legislation and policies to the commissioner at a very early stage in order to obtain comments. Such a requirement would circumvent the current adversarial nature of consultation and debate post-publication of draft legislation. In the interests of saving time, we draw the Committee’s attention to the proposed amendments that we have outlined concerning clause 3 on page 14 of our submission.

Our primary concern is that the Commissioner for Children and Young People Bill, as currently drafted, effectively sets up two commissioners — one for children in the criminal justice system and one for everyone else. The definition of "relevant authority" is extremely important. Schedule 3 of the Bill distinguishes between two different groups of authorities — Part I lists those amenable to the devolved Administration and Part II those which deal with matters reserved under the Northern Ireland Act 1998. They are the responsibility of the NIO or other Whitehall Departments. That has adverse implications for children and young people involved in the criminal justice system, particularly with regard to powers to conduct formal investigations. As the Home Office is not mentioned in the Bill, refugee children and those seeking asylum may not come within the remit of the commissioner. The status of those children and young people must be clarified.

As the Bill is currently drafted, the commissioner cannot initiate a formal investigation into advocacy or other arrangements in respect of non-devolved public bodies. For example, the commissioner cannot initiate a formal investigation into the complaints procedures in centres such as Lisnevin or the new Rathgael site, when it opens.

The only way in which the commissioner can undertake a formal investigation in relation to an allegation made by a child in the criminal justice system or a refugee or asylum-seeking child is if the child comes forward to initiate a complaint under clause 8(1). Ms Kelly has outlined the problems with that approach, which is not in the best interests of the child. It means that children who are recognised as being some of the most vulnerable, albeit challenging, in our society do not enjoy the same protection under the Bill as other children by virtue of the fact that aspects of their care and the services directed towards them are not, as yet, devolved.

All children are entitled to be protected if their rights are at risk of being breached. We cannot find any justifiable reason why it is acceptable to have a children’s commissioner who reinforces the message to children, their families and their communities that they are not as worthy of protection as good, well-behaved children. Although we appreciate that challenges may be presented by virtue of the fact that responsibility for children remains with Westminster, we believe that they are not insurmountable and that a way can be found to afford children equal protection from our commissioner.

If the Committee decides to seek an amendment that does away with the unequal treatment proposed for justice, refugee and asylum-seeking children, it should focus on clause 12(1)(a) and recommend that the phrase "other than one listed in Part II of Schedule 3" be deleted. That might not happen. Therefore, we would like to draw the Committee’s attention to other amendments which, in the event of a two-tier system remaining, would go some way towards strengthening the commissioner’s power to protect children who are involved in the criminal justice system and refugees or asylum-seeking children in Northern Ireland.

We reiterate what Ms Kelly said and suggest that the restrictions placed on the commissioner by clauses 10(4), 10(5), 11(4) and 11(5) in taking, or assisting children in, legal proceedings should be deleted. Those restrictions would prohibit the commissioner from invoking the casework function if the matter has been subject to an investigation at an earlier stage. That would be unnecessary, counterproductive and potentially in breach of article 6 of the European Convention on Human Rights.

Unless those amendments are accepted, we believe that justice children and asylum-seeking children, if they came forward at all, would be directed towards the commissioner’s legal function and bypass the investigative role that currently demands that children come forward and put their heads above the parapet by making a complaint. There is no power to enforce compliance with any findings flowing from either an investigation under clause 6 or a substantive complaint under clause 8(1), and the commissioner is prohibited from taking, or otherwise becoming involved in, legal proceedings that may arise as a result of such an investigation. Why would they, or anyone, come forward? It does not make sense.

Children come to us with many problems about allegations of human rights abuses. The second key amendment that would go a long way to help ensure that those children receive adequate protection from the commissioner would be to enable the commissioner to bring proceedings in his or her own name, without having to name a victim. That would be important to a child or group of children who are in custody or in an adult or juvenile institution, and who might feel vulnerable after making a complaint to the commissioner. The fear of being identified, whether real or imagined, deters most young people from seeking help. Those working in the field of children’s rights, and in the system, are acutely aware of the ongoing potential breaches of children’s rights, and because a child has difficulty in coming forward to take a case, those remain unchallenged.

The European Court of Human Rights has recognised the difficulty that children have in taking cases, and has allowed those acting for children to bring cases on their behalf. The submission by the Children’s Law Centre and Save the Children puts forward several alternative amendments.

Our third group of suggestions for improving safeguards for children under the remit of non-devolved public bodies is that the Committee should give serious thought to asking for clause 8 to be deleted. Ms Kelly has gone into that in detail.

Clause 8(2)(b) places a huge restriction on the power of the commissioner to carry out a formal investigation of a child’s substantive complaint by prohibiting such an investigation if the complaint has failed in the existing statutory framework. That clause unduly limits the commissioner’s discretion to investigate complaints, as it would be difficult to think of a complaint that would not fall into a statutory complaints system.

Clause 8(2)(b), together with clauses 9 and 12(1), weakens the commissioner’s powers to investigate complaints into non-devolved public bodies, and leaves justice, refugee and asylum-seeking children out in the cold. That is not acceptable, and those children must not feel that they will be treated differently.

(The Chairperson in the Chair)

Ms Lewsley: The issue of "best interests" and "welfare" was raised at the Committee meeting last week. "Best interests" is used in many of the key sections, and "welfare" is used in some cases because of the legal implications. You have said that part of the Bill is a reserved matter, and the Office of the First Minister and the Deputy First Minister had to negotiate with the NIO to get "best interests" included in the Bill. The Committee will have to lobby the NIO about the wording.

Ms Kelly said that some children might not have access to the commissioner. The Committee is concerned that the commissioner might become bogged down in the numbers of individual cases brought by children. The Children’s Commissioner for Wales gave evidence to the Committee last week. He said that he did not want to go down that path either, but that any child who came to the Commissioner for help would be guided towards the appropriate organisation to deal with the problem. Perhaps our commissioner could do the same, rather than getting involved in every case. There should be some sort of follow-up process to ensure that the child was referred to the right place and received help.

Ms Kelly: I will answer the second question first. The Children’s Law Centre’s experience of dealing with children who come to us for advice has been that, if they are referred to another organisation, they will not go. They are not like adults. Even if you offer them a path, they do not have the confidence or the resources to approach another agency. It may take a lot of courage for children to come to us. Often, when they phone the free advice line, they say that they are calling on behalf of friends. The child must first acknowledge that he or she has a problem that can be redressed by the commissioner. However, it is a huge step to summon up the courage or confidence to seek help from any organisation, especially if the child is in an institution, such as a children’s home, or a juvenile justice centre, such as Lisnevin. In our experience, if children take that step and are told that they have approached the wrong organisation, they will not go any further.

The Children’s Law Centre suggests that the commissioner will not get bogged down in dealing with many individual cases. It suggests the deletion of clause 8(2)(b), which, as Ms Yiasouma said, precludes the commissioner from investigating a complaint that falls under an existing statutory complaint system, which will include most complaints.

Clause 8(2)(a) — that "the complaint raises a question of principle" — must remain. That clause will be the first hurdle, because the complaint must raise a question of principle before the commissioner will investigate it. Presumably the commissioner’s strategic plan will include strategic intentions and criteria for investigating complaints. It may say, for example, that the commissioner’s priorities for this year relate to juvenile justice. The complaint would be assessed against the strategic plan’s criteria, which would determine whether it would be investigated. I do not envisage that all the commissioner’s time will be spent investigating individual complaints, because he or she will apply strategic intention to each case and assess whether it raises a question of principle.

The commissioner must exercise discretion properly on all functions, and that provides another safety net. Failure to exercise discretion properly will result in the commissioner being subject to judicial review. The commissioner could face judicial review for engaging in frivolous investigations, or those that are not the best use of resources. The commissioner will also be accountable to the Office of the First Minister and the Deputy First Minister. Therefore, there are safeguards in relation to the valid concerns that you raised. However, the proposed amendment would give the commissioner the opportunity to investigate serious complaints that require immediate remedies, where the system has failed the child to date.

The Children’s Law Centre’s written submission details why it thinks that "best interests" is the correct standard, and my presentation addressed the issues. "Best interests" is a recognised international standard of children’s rights, and it is increasingly recognised domestically. Mr Justice Gillen has repeatedly referred to the "best interests of the child" in his judgements.

That approach is more holistic as regards the standard by which decisions in relation to children should be made. It takes into account the wishes, voice and feelings of the child, obviously respecting the child’s age or maturity, and, in many ways, reflects what has already happened in relation to the Children (Northern Ireland) Order 1995. The "best interests" approach is the current standard. Indeed, a member of the UN Committee on the Rights of the Child met several Ministers in Belfast last week and impressed upon them the importance of having that approach in legislation, with specific reference to the Commissioner for Children and Young People Bill.

Mr Ervine: The Children’s Commissioner for Wales praised our Bill as superior to that under which he had to work. You seemed to say that our commissioner would not have the power to be as proactive as he or she needs to be, and that there are limiting clauses in the Bill. Am I right in that interpretation?

I can only welcome your proposed amendments to the Bill. From listening to my Colleagues, I think that many of them feel the same way. You made a point about other elements of the system that are expected to deal with the issue. Can you elaborate on where you see the flaws on that in the Bill?

Ms Yiasouma: Do you mean other complaints mechanisms?

Mr Ervine: You said that you failed to see how it could not be affected by some other system.

Ms Yiasouma: Most institutions that have contact with children and young people have complaints systems. We question how accessible and bureaucratic those systems are and how adversarial they may be. The bulk of the advice that we received from children and young people was that the first thing that a commissioner should be is recognisable to all children and young people throughout Northern Ireland.

If there is a complaints system where a child must write a letter or meet someone and where it might take a year for a complaint to be heard, or a free telephone number to contact this lovely all-singing, all-dancing person who is extremely friendly and child-centred whom everyone knows will help with a complaint, I know which one I would choose and which one I would encourage my child and the children with whom I work to choose. I would choose the commissioner, because he or she is far more child-friendly. The commissioner will do what Peter Clarke, the Children’s Commissioner for Wales, does, which is, unless it is a point of principle, support and help a child in accessing a complaints procedure and support the system to make its complaints procedure more accessible to children.

As they currently stand, however, none of those procedures is easily accessible to adults and protectors of children, let alone the children themselves. The commissioner will be incredibly accessible to kids, which is why the commissioner will always be the first port of call. If he or she — and I hope that the commissioner will be a she — is continually knocking children back, no one will contact them.

Mr McNamee: I have not yet studied the Bill or the office of the commissioner in great detail. Given what you said about clause 8(2)(b) and the points that you have just made, the Bill would effectively give the commissioner very little opportunity to exercise powers, because there would be very few circumstances in which a complaint could not be investigated under existing statutory complaints systems.

My question might be more easily answered by a legal person, but regarding your proposal to delete clause 8(2)(b), if a complaints procedure was already under way that conflicted with a subsequent complaint being brought to the commissioner, would there be any implications for the rest of the Bill in deleting that clause? If there is a statutory complaints system and an investigation is under way when a complaint is brought to the commissioner, does that affect the Bill’s competence?

Ms Yiasouma: If there are two complaints processes proceeding on the same issue?

Mr McNamee: Under the existing legislation, the commissioner could not deal with the complaint. If we were to accept the deletion of clause 8(2)(b), would there be any conflict around the Bill’s competence if two complaint procedures were under way simultaneously?

Ms Kelly: Protocols would have to be agreed. When operative, I imagine that the children’s commissioner will have protocols with a range of agencies — trusts, boards, the Northern Ireland Office, the Northern Ireland Human Rights Commission, the Equality Commission. Those protocols will relate to how the two relevant bodies work and interlink at the interface. It would depend on the facts of the case and the particular circumstances.

Dr O’Hagan: I confess that I went through the two submissions in some detail. Considering last week’s evidence sessions, it strikes me — and David Ervine has already mentioned this — that there are serious concerns about the Bill in this sector. It looks as if there are fundamental flaws throughout the Bill, including the investigative powers, the remit and the debate around "welfare" and "best interests". I share Mr Ervine’s concerns, and I hope that the Committee will be able to strengthen the Bill.

I would like to get your comments on clause 9(2). How restrictive is that clause? What are the implications of the clause being retained in the Bill?

Ms Kelly: The implications are significant. Clause 9 relates to the investigation of complaints. It limits when the commissioner will be able to investigate a specific complaint. Clause 9(2) says that the commissioner cannot investigate a complaint after the commencement of criminal or civil proceedings. For example, the commissioner could not investigate a specific complaint that there had been a failure on the part of the Director of Public Prosecutions (DPP) or the police to investigate properly a child abuse case. Those limitations are significant. It could also mean that the commissioner could not investigate an individual complaint about court proceedings in relation to a family matter or a child being taken into care. If there had been undue delay, the commissioner could not deal with that.

That is bad enough in itself, but it must be read in conjunction with the limitations imposed by clause 12, which Ms Yiasouma referred to. That concerns the relevant authorities. In exercising the powers under clause 5, clause 12 limits the powers that the commissioner has over reserved matters. Reading the two together, the commissioner’s powers over reserved matters, and specifically the DPP and the operation of the courts, both in relation to family law proceedings and children being taken into care, are severely limited. That could be significant.

Dr O’Hagan: My final question is about resources. We all know how key resources are to either limiting a body or giving it as much power as possible. Has any thought been given to the type of resources that this office would need?

Ms Yiasouma: How long is a piece of string? We are not unhappy with the resources as quoted in the explanatory documents, as long as they are kept under regular review, and as long as the commissioner’s submissions regarding the resources required to do his or her job are taken seriously.

Mr McMenamin: I fully support the principle of a children’s commissioner, but my fear is that we may become bogged down in bureaucracy and forget the individual. I foresee that lawyers and barristers will make a killing when the matter comes around.

Do you visit our prisons and homes for young offenders? Have you access to individual cases? One of my constituents asked me on several occasions to contact a particular prison, and I did that. Her daughter had been inside since she was 14 years old because she had committed numerous minor offences. She ended up in the men’s wing in Maghaberry, and committed suicide last Sunday. The system failed that young lady. Where do you go from there?

Ms Kelly: I am aware of that case. The Bill, as drafted, does not empower the commissioner to deal proactively with such a case, because of limitations concerning children who are in the justice system and because of the limitations already mentioned in respect of clause 8(2)(b) and clauses 10 and 11.

Ms Yiasouma: It is an example of the importance of having the ability to proceed with a case without naming a victim. Without particular reference to that young woman, we have repeatedly tried to encourage young women who have been sent to Maghaberry to complain. They cannot, will not, or feel unable to do so. We cannot get them to come forward because of the requirement that the child has to make the complaint. The system should enable the commissioner to proceed to investigate on the child’s behalf, once we are aware that an abuse has taken place, such as — in this case — a child’s having been placed in an inappropriate institution.

Suggested amendments relating to the Human Rights Act 1998 may help those young men and women who should not be in a young offenders’ centre and the young women who should not be in such places as Maghaberry. Ms Kelly is correct. As the legislation stands, the commissioner can do nothing.

Mr McMenamin: In other words, we are wasting our time on a children’s commissioner. The matter of that young lady, from the age of 14, could not be addressed. I am sure that others are in that position and cannot approach the children’s commissioner.

Ms Kelly: Currently, another 15-year-old is in Maghaberry. The Bill, as it stands, does not enable the commissioner to be proactive in that case. However, our suggested amendments may create a commissioner with the power to act in relation to such cases as that of that poor young woman, and in the cases of other children.

Mr McMenamin: Thank you very much. I am delighted to hear that.

Mr Shannon: In the role of the children’s commissioner, is flexibility necessary to provide assistance, either in the children’s commissioner’s office or away from it? Are there occasions on which other bodies or agencies may be better placed than the children’s commissioner to act on behalf of a child?

Ms Kelly: Clause 7(3) states:

"The Commissioner shall not take any action on behalf of a child or young person under subsection (1) unless it appears to the Commissioner that there is no other person or body likely to provide such assistance."

That phrase appears several times in the Bill. We suggest that it may be more appropriate to say that "there is no body better placed to provide such assistance" than an office of commissioner for children, unless there are special circumstances where it would be inappropriate for the commissioner to provide such assistance. That would give the commissioner discretion either to refer a case to a trust or, in exceptional circumstances, to act. The present wording restricts the commissioner’s ability to intervene. This wording limits the commissioner’s power to act, whereas our amendments would empower the commissioner to act when appropriate.

Mr Shannon: Do you believe that your amendment would provide flexibility?

Ms Kelly: Yes. It would provide a flexibility that the present wording of the Bill does not allow.

Ms Quinn: It would allow the commissioner to reach a decision more quickly, as the present wording of the Bill could cause undue delay, and that would not be in the child’s best interests. A case could end up being bounced between Departments and organisations to find out which is more likely —

Mr Shannon: To pay for it?

Ms Quinn: Pretty much.

Mr K Robinson: Are we, in effect, setting up two commissioners? Will there be a commissioner for children who are going through the legal system and another for all other children? We have had a fairly graphic description of those children who are going through the legal system, and it seems that much of your work deals with them. What about the mainstream children, those who are in a "normal home", who wish to make a complaint? I get the impression that the children and young people who might avail themselves of such a system would come mostly from these "normal homes". Is there a danger that children who are suffering abuse or having their rights denied in such homes will not be able to approach the commissioner?

Ms Yiasouma: We have highlighted the two-tier nature of the commissioner’s role because that would redress a flaw that removes children from the system. The substantive role of the commissioner will be for "non-offending" children, for want of a better word. Our amendments would strengthen that; they would ensure that children receive health and education services appropriate to their needs. They would strengthen the service that the commissioner can offer to all children, not just those in the care of the state or in the criminal justice system. Many are children or their parents looking for advice on education, on play facilities, or on speech therapy — which is a huge issue here. These are often everyday problems that reduce the quality of the health, lifestyle and life chances of our children. We strongly believe that our amendments, particularly the deletion of clauses 8(2)(b), 10(4), 10(5), 11(4) and 11(5), would strengthen the role of the commissioner in protecting such children.

Ms Kelly: We welcome the duty being placed on the commissioner to promote awareness of his office among children here. Most of the enquiries that the Children’s Law Centre receive are about the education of children who are living at home. For example, a child may be the victim of bullying at school. Because there is a complaints procedure in the education system, the Bill, as presently worded, would prevent the commissioner from investigating a claim of bullying. The limitations that we are proposing be amended apply to children across the board; that is just one example.

Mr K Robinson: Take the example of a child being bullied at school. Suppose the child’s parents are separated or divorced; the child has seen the world turned upside down and is a loner. How would the Bill help a child in such a tragic situation to reach out and get help from the commissioner? Suppose the child is being denied access to someone or some organisation that they formerly had access to. How does this Bill, and the amendments to it that you are suggesting, help that child to reach out and have his or her best interests guaranteed?

Ms Kelly: If our amendment were accepted, the Bill would enable the commissioner, exercising his or her discretion, to investigate such a complaint in special circumstances if he or she felt that it raised a question of principle.

Mr K Robinson: So it would come in under "special circumstances"?

Ms Kelly: Yes. A question of principle would arise if, for example, the complaint was about repeated failure to address systematic bullying at school. Other considerations, such as the child’s home environment, might constitute special circumstances. Our amendments would enable the commissioner to investigate. That is one option.

Our amendments to 10(4) and 10(5) would enable the commissioner to take a case on behalf of a child, or to support a case that a child or his parents or guardians have taken, if the school or the relevant education and library board failed to act. Without our amendments, if an investigation had taken place the commissioner would be unable to support the child.

Mrs E Bell: I support this Bill and your amendments; we must get this important legislation right. Children must know that they have a last resort in the commissioner. I see that as a very important duty.

Clause 1(2) of the Bill states:

"The Commissioner shall be appointed by the First Minister and deputy First Minister acting jointly."

The Committee is unsure about that. What is your opinion?

Like all legislation, the Bill is difficult to understand. There should be training for Committee members on reading it. How are children expected to understand it? Have children’s organisations, such as your own, thought about that? Perhaps something like an executive summary would be beneficial to the children who might need it in the future. Children should be aware of what is contained in the Bill.

Ms Yiasouma: Include Youth’s submission included a suggested amendment to clause 1(2), and I think most other submissions suggested similar wording. The proposal is that clause 1(2) be followed by

"following an independent, transparent and open recruitment process".

Include Youth shares your views, but we did not think that it was the intention of the Office of the First Minister and the Deputy First Minister and the draftsman that the two main men would sit in a room together and pick their favourite person.

Mrs E Bell: I would not put it past them.

Ms Yiasouma: There should be an open and transparent recruitment process. Include Youth has also made a recommendation that a young person’s document be produced. From page 3 of our submission:

"a young people’s summary of the implications of the Bill should be prepared and actively promoted amongst all groups of young people."

Actually, that should read:

"amongst all groups of children and young people".

That is an editing oversight.

The summary is relevant to all children and, therefore, has to be accessible to all children. When Include Youth talked to children, it seemed as if the offering of Tayto crisps was the most effective way of having them listen to us about the commissioner. The commissioner, the office of the commissioner and OFMDFM must be creative when promoting the commissioner for children.

Include Youth envisages — and would be disappointed if it did not happen — that children and young people will be involved in the recruitment and selection of the commissioner for children and young people; otherwise it is a nonsense. The process should be started as it is intended that it should go on. It is fine if the Committee wants to legislate for that, but Include Youth is happy so long as there is an open process. We will be lobbying hard for it.

Mr Dalton: Your submission recommends that "or group of children or young persons" be inserted after "young person". Your argument is that children are unlikely to come as individuals and make a complaint, and I accept that. However, does it add anything to the legal drafting to insert "or group of children or young persons"? Surely if 10 young people come forward, that is a collection of 10 individual complaints that can be grouped and dealt with as a group. That makes more sense than having to redraft the Bill.

Ms Kelly: The Children’s Law Centre made recommendations on that throughout the Bill. In exercising functions under clause 2(2) in relation to any particular child or young person, there are certain standards. The Children’s Law Centre feels that if the commissioner is acting in respect of a group of children, the guiding principles by which he or she acts should be the same as if they are acting for one child or young person. The suggested amendment is an attempt to be more comprehensive.

In the current draft, a narrow judicial interpretation might not require the guiding principles to be the same when the commissioner is acting for a group of children and when acting for one child. Therefore, it is belt and braces in terms of a judicial interpretation to ensure that the same guiding principles apply. The same reasoning applies throughout those amendments.

Mr Dalton: Do you see any problem with the drafting in section 8(1)? It says that

"the Commissioner may conduct an investigation into a complaint made by a child or young person".

You have suggested that children should be able to complain as a group. Do you think that there would be a restrictive judicial interpretation of that that would require a child to make a complaint, rather than somebody acting on behalf on the child? Obviously, the actual complainant is the child.

Ms Kelly: It is our experience that children are reluctant to put their heads above the parapet. Where a group of children, who may all be suffering the same abuse or denial of rights, can make a complaint, although the circumstances may be the same as a group, we felt that putting the plural in and allowing the commissioner to investigate a complaint made by a group of children would give some protection to the children and insure against a narrow judicial interpretation.

Mr Dalton: Are you suggesting that the use of a group should be there to avoid the naming of an individual child as part of the complaint?

Ms Kelly: It is to try to protect the individual child.

Mr Dalton: The commissioner might investigate a complaint by a group, and none of the individuals contained in that group would have to be identified. However, an individual child making a complaint would have to be identified.

Ms Kelly: It is quite difficult. The facts of the case would have to be established before investigating a complaint, so it would be very difficult to have an anonymous child. However, if there were five children in a group, it would offer some protection to the child. In the circumstances that I mentioned in which a single child was being physically abused in a children’s home, it would be difficult for that child to identify himself as a single individual. If there are 10 children being physically abused in that children’s home, and they all make a complaint, then, although they are identified, at least there is some security and safety for the child in numbers. We are trying to sandbag against the requirement here that to access the commissioner, children have to identify themselves individually in some circumstances. The changes we require will make the office of the commissioner more effective and more accessible to children and young people.

Mr Dalton: I understand why children would be reluctant to make a complaint by reason of being worried about going forward individually, and would rather be part of a group, but I still cannot grasp why it is necessary to redraft. Why can a collection of individuals not be dealt with as a grouped set of cases? I am being picky about the drafting.

Ms Kelly: It is a matter of drafting style, but also the belt and braces of judicial interpretation, where there might be a narrow interpretation regarding an individual child or young person.

Ms Quinn: It would also be because of the requirement under 8(2)(a) that the complaint should raise a question of principle. If 10 individual children took 10 separate cases, the commissioner would only back one, because it would be seen to be an ineffective use of resources. They would take the other nine on the basis that the first person who came forward was the one who was raising the question of principle, if it got through there.

Mr Beggs: Are you aware that under devolution, because some matters are reserved, there are issues that are not within our gift?

Ms Yiasouma: We are aware of what is behind some of the reasons for drafting this piece of legislation. We would like a clear statement to the children of Northern Ireland as to why some of them are going to be treated differently. I appreciate why it has been drafted in the way that it has, but we are saying that it is not satisfactory, and people will want to know why it has happened in the way that it has.

Mr Beggs: Last week, the Children’s Commissioner for Wales informed the Committee that he did not have automatic right of access to some premises. Do you agree that what has been proposed for Northern Ireland is considerably better than what has been presented in Wales?

Ms Yiasouma: Absolutely. However, the question is whether "better" is as good as it can be.

Mr Beggs: I am concerned that in pursuit of the ideal, the Bill may be put in jeopardy. I understand that it must have the agreement of the Northern Ireland Office. Otherwise, it will fall. The Welsh commissioner said that he believed that the devolved Administrations were driving the system, because they were pressing for the establishment of a children’s commissioner for England. The Home Office will, therefore, finally have to look at the matter in more detail. Do you agree that that would be part of a logical process?

Ms Kelly: First, a considerable number of the amendments that the Children’s Law Centre suggested in both its written submissions do not affect reserved matters, but would still strengthen the Bill.

Secondly, I agree with Ms Yiasouma that although the children’s commissioner for Northern Ireland might be better than that of Wales, if Northern Ireland is to be at the cutting edge of protecting and promoting children’s rights, it must do better still.

Thirdly, difficulties that are presented with the devolved institutions and the Northern Ireland Office are a matter for you, the politicians. You must make a political judgement with regard to the Bill. The Children’s Law Centre gives its views — which are drawn from its experience — on how the Bill could better serve all the children of Northern Ireland, including those in the justice system, asylum-seekers and refugees.

The Children’s Law Centre trusts politicians to make the correct political judgement on what should be progressed, and how to strengthen the Bill. Politicians possess the knowledge — which the Children’s Law Centre does not have — with which to make that judgement.

Mr Beggs: Would you agree that there is a risk that we must take? We must make sure that some legislation comes in. However, we do not wish the Bill to fall, because it brings considerable benefits.

Ms Yiasouma: The children’s rights movement has been the core advocate for a commissioner for children in Northern Ireland for many years. The Bill is a piece of legislation that goes some way towards meeting objectives. Include Youth is not in the business of sabotaging the meeting of its own objectives. It is in the business of getting the best it can get for the children of Northern Ireland. I reiterate what Ms Kelly said. As legislators and policy-makers it is the politicians’ role to decide how to make that happen. All Include Youth can do is to tell you what it believes.

Mr Beggs: One of Include Youth’s proposals is that "best interests" and "rights" should be used consistently throughout the Bill. I understand that, for legal reasons, the Northern Ireland Office has stated otherwise. That might, therefore, present a problem.

Is there a danger that that wording could create a situation in which antisocial young people, who might be repeat offenders, could not be dealt with by the judicial system? There have been instances of young people reoffending 10, 15, 20 or 30 times. In Northern Ireland, that could create a situation in which paramilitaries could claim to be the saviours of their local communities by shooting those people in the knees. Is it not important that the judicial system and the care system be able to deal with such young children, rather than creating a situation in which paramilitaries — by abusing and victimising young people — can claim credibility in their communities?

Ms Yiasouma: I am not sure whether you are suggesting that Include Youth believes it to be in the best interests of a child who commits a crime not to be dealt with — either by being arrested by the police or being dealt with by the judicial system. That is not what Include Youth suggests. It argues strongly — and has produced principles to support its argument — that it is in the best interests of children who break the law that they be held accountable and recognise the effect that their behaviour has on themselves, on those around them, and on their victims.

It is not in children’s best interests not to be held accountable, or to recognise and deal with the consequences of their behaviour. It is not in their best interests. We are not saying that we should condone them and let them act with impunity. We are saying that we need a system that addresses and balances the needs of the children with the needs of the public at large. We can only do that if we take into account the best interests of those children. We cannot ignore what they have done. Nobody’s interests are served by doing that.

Mr Beggs: You are acknowledging that the wording must reflect the fact that our justice system must be able to address community needs and the needs of young children.

The Chairperson: Thank you for the background and research work that you have done in bringing these amendments to our attention. The Committee is in somewhat uncharted waters. No other Committee has had to deal with a piece of legislation that is being presented by devolved Ministers, but in agreement with the Northern Ireland Office. Therefore, we have some difficulties in scrutinising it that other Committees have not faced. Nevertheless, we shall attempt to do that and, later on, we shall discuss how we might achieve that. The points that you have raised today will be discussed further. We shall be looking at the possibility of making amendments on a range of issues. The Committee will come to some conclusions on what you have said today and make its decisions. Thank you.

9 September 2002 (i) / Menu / 11 September 2002 (ii)