1. NIACRO believes that recent legislation - The Children Order 1995, and Criminal Justice (Children) (NI) Order 1998 - have improved the circumstances of young people within the Criminal Justice system e.g. by reducing the numbers who are prosecuted, and by reducing the numbers who are sent into custody. However, there are still areas of concern where a Children's Commissioner could assist significantly. Below we detail NIACRO's general views on functions of the Commissioner's role, and specific responsibilities of the role in relation to Criminal Justice matters.

2. GENERAL - In recognising the sensitivities which prevail in relation to offending behaviour by children, NIACRO would suggest that the Commissioner has a key role to play in balancing the support and protection of those children who offend against the need to protect society from the effects of crime.

The Children's Commissioner should have a broad remit to address matters affecting the marginalised and vulnerable groups from which juvenile offenders often originate. The Commissioner should be (i) independent of government; (ii) should complement departmental activities rather than enable the government to abdicate its responsibilities; and (iii) should have a clearly defined role which includes - Advisor to government e.g. implementation of the United Nations Convention on the Rights of the Child, and the Age of Criminal Responsibility; Analyst of trends through data compilation and Provider of good practice guidelines; Monitor of the rights of children, with authority to Conduct the investigation of complaints; Legislation Proofing to ensure that children's needs are taken into account when new legislation is being drafted; Co-ordinator across government departments to maximise the effectiveness of Children's Service Planning and other 'joined-up' initiatives.

3. SPECIFIC CRIMINAL JUSTICE RESPONSIBILITIES - Whilst acknowledging that Criminal Justice remains a reserved matter in Northern Ireland, NIACRO firmly believes it is imperative that youth justice matters are included within the ambit of the Children's Commissioner. The Criminal Justice Review highlights youth justice as an area which offers particular opportunities for increased community participation, presumably because it is seldom contentious in relation to party/constitutional politics. The Commissioner's role ought to promote and complement these opportunities. Specific areas which require the Commissioner's attention in this respect include:

(a) Consistency of decision-making in relation to decisions about prosecution or diversion from court to ensure equity within and between urban/rural areas, and police/court divisions. Likewise, monitoring of decisions to send children into custody needs careful monitoring, and in some instances, redresses, for which no current opportunity exists.

(b) We have particular current concerns in relation to youth custody, where the Commissioner could exercise positive influence: the significant usage (60% of all admissions during 1999 - 2000) of unsuitable high-security accommodation for children whom the police need to detain for only short (overnight or weekend) periods, pending production in court. Most of these children are then bailed and do not reappear in the system, raising the question of why they need to be taken into custody in the first place. Secondly, the transition to a new single Juvenile Justice Centre for Northern Ireland: whilst this is a welcome development, it is imperative that this centre is imbued with sound principles, practice and philosophy from the outset e.g. there is a critical need to ensure a much better religious balance that currently exists in the staff composition (which is predominantly Protestant), given the consistent over-representation of Catholic children within the juvenile custody population, and the location of the new centre at Rathgael, which is perceived by many as being in a Protestant area. This is an opportunity for Northern Ireland to lead the way, a process which can only safely be overseen and monitored by a post such as that of the Commissioner. Thirdly, it is a regrettable fact that many children in custody are also Social Services' clients, for whom major care, accommodation, support and education difficulties exist when they exit from custody. In fact, despite emphatic legislative directives to the contrary, there are still examples of children who are primarily detained in custody so that their care needs may be met. The Commissioner could have a key gate keeping responsibility to ensure fulfilment of statutory duties by Social Services and Education and Library Boards in these difficult cases.

(c) The children of prisoners are an often neglected grouping, who have specific needs. Despite not being offenders themselves, they suffer unduly because of their enforced involvement in the Criminal Justice system, particularly in being significantly deprived of access to their absent parent. They are one of several minority child groupings for whom the Commissioner should have a particular responsibility.

May 2001

• 65% of looked after children in Northern Ireland were placed in foster care in 1998/99.
• On the 29th January 1997 there were 1380 carers approved by Trusts.
• The majority of carers (69%) were between 40 and 60 years of age and had been approved for more than 4 years.

• 10 times more likely to be excluded from school.
• 10 times more likely to attend a special school.
• 4 times less likely to go on to further education.
• 12 times more likely to leave school with no qualifications.
• 4 times more likely to be unemployed between the ages of 16 and 24.
• 60 times more likely to join the ranks of the young homeless.
• 50 times more likely to be sent to prison.
• 88 times more likely to be drug abusers.
• 4 times more likely to suffer from mental health problems.

Young women in care are at least 4 times more likely to be pregnant or already have a child than other adolescents. In addition their own children are up to 66 times more likely to need public care.

In summary, children in public care are amongst the most disadvantaged and vulnerable groups in society.

• Need to increase the number of foster homes to allow for matching the child to foster carers and provide the best possible care for that child.
• Ensure that sufficient facilities and resources are available to assist foster carers to deliver high quality care to children who have particular needs, e.g. children with disabilities, learning difficulties.
• Increased finances to pay enhanced allowances for those children who require additional support.
• Ensure that the Educational and Health needs of looked after children are prioritised (including financial help re: further education).

• Be guided by and promote full compliance with the UN Convention on the Rights of the Child.
• Act as a powerful spokesperson on behalf of children and promote respect for the views of children throughout society.
• Promote knowledge of and respect for the human rights of children throughout society.
• Be independent of Government and free to set his/her own agenda.
• Have the power to investigate individual cases in exceptional circumstances.
• Be able to review and report freely and publicly on any matter related to children and their rights and interests.
• Have powers to launch formal investigations including rights to access information and institutions, subpoena witnesses and make recommendations to improve the lives and well being of children and young people.
• Have the necessary resources to carry out his/her functions.

• Ensure that information is available to children and young people on their rights and how to claim them.
• Ensure that children's rights in public care are being protected and investigate any alleged denial of rights.
• Promote independent advocacy for all children and young people living away from home.
• Promote awareness amongst public authorities for the additional needs of looked after children so that they are assisted to develop into healthy, well functioning citizens.
• Ensure that foster carers are given the resources and support required in order to look after and promote the well being of children in their care.
• Ensure that the rights of birth children of foster carers are equally promoted and safeguarded.
• Consult directly with children and young people in public care.
• Ensure that a balance is struck between rights and responsibilities and that the rights of foster carers and their families are also prioritised.

24 April 2001

Written Submissions

1. The Northern Ireland Guardian Ad Litem Agency (NIGALA) was established as a Special Agency of the Department of Health, Social Services and Public Safety under the Health and Personal Social Services (Special Agencies) (NI) Order 1995.

2. Article 60 of the Children (NI) Order 1995 introduced the presumption of appointment of a guardian ad litem for the child in specified public law proceedings. (In England and Wales guardian ad litem panels were created over a decade earlier in 1984 with legislative provision for a gal in public law cases even preceding that date). The Agency also has responsibility for undertaking the duties of guardian ad litem work under the Adoption (NI) Order 1987.

3. The NIGALA commenced operations on the 4^th November 1996; it currently has a complement of 39 guardians (8 self-employed), providing a regional service with headquarters in Belfast and a North-West office in L'Derry.

4. The guardian ad litem is appointed in accordance with the Magistrates Courts (Children [NI] Order 1995) Rules (NI) 1996 and the Family Proceedings Rules (NI) 1996. The guardian ad litem investigates as appropriate, appoints a solicitor for the child, represents the wishes and feelings of the child to the court, advises on timetabling of proceedings, analyses options available to the court and makes a recommendation. The Children (NI) Order 1995 has effectively given a 'voice' to children in public law proceedings.

5. Since November 1996 guardians ad litem appointments have been as follows :-

6. The NIGALA welcomes the proposal to establish a Commissioner for Children in Northern Ireland. It is recognised that it is imperative that this post

• is set in the context of a Children's Strategy
• is accountable to, but independent of, the Assembly
• is adequately resourced to carry out all of its duties
• has in place machinery to consult with children's organisations and directly with children and young people.

7. It is not the intention of the NIGALA to offer in this submission all-embracing recommendations on the role and remit of a Commissioner. What follows are specific recommendations relating to children and young people who are the subject of civil proceedings in the Northern Ireland courts. These children are potentially extremely vulnerable; the decision of the court in care proceedings, adoption proceedings, secure accommodation proceedings or divorce proceedings (to name but a few) can be life-changing moments in a child's life.

8. It is therefore proposed that the following duties should be part of the remit of a Children's Commissioner.

Article 12

(i) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

(ii) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

A guardian ad litem working in tandem with a solicitor from the Law Society's Children Panel ensures that the child has a voice in most public law proceedings: the guardian usually acts alone in adoption proceedings to ensure the best interests of the child though occasionally the child may be legally represented. The United Kingdom however does not comply with Article 12 in respect of children involved in private law proceedings. There is an undeniable need to extend the child's right to be heard in judicial proceedings to private law cases, in particular those cases where there exists a conflict of interest between the child and his parents. At present in private law proceedings a court may seek a welfare report from a HSS Trust if a child is involved but at best this is treating the child as an object of assistance rather than offering the right to be heard. The Children's Commissioner, in monitoring Northern Ireland's compliance with Article 12, UN Convention, may seek to undertake a review of all support services for the Family Proceedings courts. These services have developed in a piecemeal fashion and are ripe for rationalisation and economy of scale. A similar review in England and Wales has recently resulted in the merging of the guardian ad litem service with the court welfare service and the children's duties of the Official Solicitor into a single national organisation.

This is a considerable task and would require regular reporting arrangements with statutory/voluntary bodies and input from research projects.

This piece of legislation effectively combining public and private law relating to children was implemented on 4th November 1996. It has many positive features. Those parts which relate to children who are the subject of court proceedings are currently monitored by the Children Order Advisory Committee chaired by a member of the judiciary, the judge of the Family Division, Royal Courts of Justice. An example of the operation of the Children (NI) Order which is generating some concern at present is the duration of care proceedings before the Northern Ireland courts. It has been steadily increasing in recent years (see figure below).

The adoption picture in Northern Ireland has changed dramatically over recent years. The overall number of children available for adoption has fallen and fewer infants are now put forward for adoption.

• 1st April 1999 - 31st March 2000 - a total of 72 children were placed by adoption agencies in Northern Ireland: only 9 (12%) were under 1 year old when the application to adopt was made.
• In step-parent adoption proceedings 67 (83%) children were aged between 5-15 years of age. None involved infants.
• Freeing Orders were granted in respect of 33 children, the majority of whom were looked-after by HSS Trusts. 50% were aged 5 years or more.

The legislation must change to meet the prevailing needs of these children. In England and Wales the Prime Minister's Review of Adoption 2000 has been followed by an Adoption and Children Bill which was presented to the House of Commons on 15^th March 2001. There is now a critical need for a similar review of adoption legislation, structures and service delivery in Northern Ireland. The appointment of a Commissioner for Children would ensure that the needs of these children are given priority, that a legislative review would take account of locally generated research and that new adoption legislation is in harmony with the Children (NI) Order 1995.

Immediate Requirements :-

• improved support for children appearing in court
• improved facilities/environment in courthouses for children and their families
• inquisitorial ethos as opposed to an adversial ethos in the civil courts.

25 April 2001

Written Submissions

Thank you very much for the invitation to be here today to present evidence on the role which could be played by a Children's Commissioner for Northern Ireland.

The Northern Ireland Human Rights Commission fully supports the proposal to establish an independent Children's Commissioner for Northern Ireland. Before looking at the role which such an office could and should play, and in order to put that role into some context, I will provide a brief description of the powers and duties of the Human Rights Commission and a short summary of the work the Commission has been able to undertake to date in relation to children's human rights.

The Northern Ireland Human Rights Commission (NIHRC) came into existence on 1 March 1999. It was created by Parliament at Westminster as a result of the Belfast (Good Friday) Agreement. The Commission was the first of its kind to be established in Western Europe. The International Co-ordinating Committee of National Human Rights Institutions now recognises some 40 such institutions at a national level across the world. A Human Rights Commission has been established within the last few weeks in the Republic of Ireland.

The legislation stipulating what the Commission can do is the Northern Ireland Act 1998 (sections 68 to 71 and Schedule 7). The Act imposes seven duties and confers four powers on the Commission.

• To keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights.
• To advise the Secretary of State and the Executive Committee of the Northern Ireland Assembly of legislative and other measures which ought to be taken to protect human rights.
• To advise the Northern Ireland Assembly whether a Bill is compatible with human rights.
• To promote understanding and awareness of the importance of human rights in Northern Ireland by, for example, undertaking or commissioning or otherwise assisting research and educational activities.
• To provide advice to the Secretary of State on the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights (in a document to be called a Bill of Rights for Northern Ireland).
• To do all that it can to ensure the establishment of a Joint Committee with the Human Rights Commission in the Republic of Ireland.
• To make to the Secretary of State within two years such recommendations as it thinks fit for improving the Commission's effectiveness.

• To give assistance to individuals who apply to it for help in relation to proceedings involving law or practice concerning the protection of human rights.
• To bring proceedings in its own name involving law or practice concerning the protection of human rights.
• To conduct such investigations as it considers necessary or expedient for the purpose of exercising its other functions.
• To publish its advice and the outcome of its research and investigations.

The Human Rights Commission has prioritised the protection of children's human rights. In the absence of a dedicated Ombudsman or Commissioner for Children, or other independent watchdog for children, the Commission has sought to act in some way, at least in the interim, as an independent watchdog for children's rights. The Commission has already carried out, or is currently in the process of carrying out, the following work relating to children's rights:

• Advising the UK Government on the extent to which policies and legislation affecting children meet international standards, especially the United Nations Convention on the Rights of the Child. In 2002 the Commission will be contributing to the review by the UN Committee on the Rights of the Child of the UK's latest periodic report.
• Commenting on the future of the juvenile justice estate in Northern Ireland, on the Family Law Bill, on the Adoption (Inter-country Aspects) Bill, on the Criminal Justice Review and on the Burns Review of Post-Primary Selection.
• Assisting applicants with cases relating to children's human rights (e.g. a case concerning the denial of a classroom assistant to a child with a disability in an Irish-medium school, and a case alleging discrimination in the provision of grammar schools places for Protestant boys in an area of County Down).
• Carrying out an investigation into the care of children in Juvenile Justice Centres in Northern Ireland.
• Submitting evidence to the inquiry conducted by the Northern Ireland Affairs Committee of the House of Commons into relocation following paramilitary intimidation in Northern Ireland.
• Producing a one-page child-friendly version of the Commission's draft Equality Scheme 2000-2005.
• As part of its work on a Bill of Rights for Northern Ireland the Commission has published a pamphlet on children's rights and established a working group to report specifically at which children's rights should be included in the Bill of Rights (copies of these documents can be made available to the Committee). Among the rights mentioned in the latter report are the right to better information, the right to be heard, the right to improved access to health and education services and the right to a revision of the age of criminal responsibility (currently lower in Northern Ireland - 10 - than virtually anywhere else in Europe).
• The Commission is presently liaising with non-governmental organisations on how best to consult with children about the content of the proposed Bill of Rights. These NGOs include the Northern Ireland Youth Forum, the Children's Law Centre, the Save the Children Fund and Amnesty International.

While the Commission has tried to prioritise the protection of children's rights, there are serious restrictions on the work it is able to do. The roots of these limitations are both financially and legally based. As required by the Northern Ireland Act 1998, the Commission has recently reviewed its powers and effectiveness and submitted a report to the Secretary of State detailing the difficulties encountered and making recommendations for changes to the law (a copy of this report can be made available to the Committee). The Commission believes that its own experience provides many lessons for those establishing the office of Children's Commissioner.

The Commission's budget of £750,000 has to cover staff and Commissioner salaries as well as running costs, including the funding of court cases. This is an inadequate sum and has placed serious restrictions on the work the Commission can do, including work on children's rights. For example, the Commission has limited resources for consulting with children and young people. There are many issues relating to children's rights which the Commission will be unable to look at in the foreseeable future given its limited resources. The Commission's financial position is made worse by the fact that it is precluded from raising funds independently.

The Commission's powers are also limited, particularly in relation to casework and investigations. For example, recent judicial decisions suggest that the Commission is not able to make a third party intervention in legal cases. The Commission has also no power to compel people to give evidence to the Commission, either orally or in the form of documents. Limitations on the Commission's powers of investigation have made it virtually impossible to carry out full investigations into the protection of human rights, including children's rights. For example, during the current investigation into juvenile justice centres, the Commission has been refused access to relevant documentation by both statutory and non-governmental bodies. Many staff in juvenile justice centres also chose not to be interviewed for the investigation. The Commission had considerable difficulty in arranging access to young people in custody in order to conduct interviews with them.

It would be disastrous if the Children's Commissioner's office was to be restricted in ways similar to those experienced by the Human Rights Commission.

There are several important reasons why children in Northern Ireland, as elsewhere, need a special Commissioner to protect their rights. By virtue of children's special vulnerability, which is recognised by international human rights standards such as the United Nations Convention on the Rights of the Child, children are excluded from playing any real part in the democratic structures of society, most notably because they cannot vote. Children also find it difficult to gain access to the legal system in order to assert their rights or to seek remedies for breaches of their rights. Children therefore, need someone to be a watchdog for their rights.

The UK Government voluntarily ratified the United Nations Convention on the Rights of the Child in 1991. The Treaty Body for the Convention, the United Nations Committee on the Rights of the Child, has consistently commended the establishment of independent offices for children, such as Children's Ombudspersons and Commissioners.

The Council of Europe, in its European Strategy for Children (1996), has also proposed the appointment of a "Commissioner (Ombudsman) for children or another structure offering guarantees of independence, and the responsibilities required to improve children's lives, and accessible to the public through such means as local offices."

Children's organisations in Northern Ireland are also strongly supportive of the recommendation that a Children's Commissioner be established. The Human Rights Commission has itself been lobbied on the need for such a Commissioner to be appointed.

The Commissioner must have a high profile and should ideally be someone who will bring status and respect to the post and be popular with children themselves.

A core role of the Children's Commissioner should be to monitor the extent to which the UK Government is honouring its commitment to uphold the minimum standards contained in the UN Convention. To carry out effective monitoring it is vital that the Commissioner's office should be entirely independent of Government. However, to work for the best interests of children, it is also important that the Commissioner's office and the Government enjoy a positive collaborative relationship.

Children's lives cannot easily be compartmentalised. In the current vocabulary, there is a need for 'joined-up' planning for children. The Children's Commissioner's Office will, therefore, need to have a broad remit which covers every aspect of children's lives, from health, to education, to play, to contact with the justice system and so on. All of these and other areas are covered by the UN Convention.

The Commissioner's constituency must be every child under the age of 18 in Northern Ireland. He or she will also have a duty in law to promote equality of opportunity and good relations.

In the opinion of the Human Rights Commission, the Children's Commissioner's role should include the following. (This list is a minimum and is not necessarily exhaustive.)

• Acting as a watchdog for the human rights of children (both those currently living in Northern Ireland and those who are otherwise ordinarily resident in Northern Ireland).
• Assessing existing and new legislation and policy for compliance with domestic and international human rights standards.
• Submitting to the UK and Northern Ireland governments recommendations, proposals and reports on any matter affecting children's rights.
• Having the right to have access to all children cared for by the State (in both care and custody).
• Taking cases in its own name and assisting children in taking cases where there are allegations of breaches of children's rights.
• Acting as an advocate for children's rights and monitoring the extent to which children's rights are delivered or denied in Northern Ireland.
• Carrying out and supporting research into children's rights in Northern Ireland.
• Conducting investigations into alleged violations of children's rights.
• Assisting in formulating and executing human rights teaching for children and young people.
• Promoting a culture of children's rights.
• Actively engaging with children and taking account of children's views.

We strongly believe that a Children's Commissioner should not be limited to dealing with devolved matters: his or her remit must extend to reserved matters as well (otherwise, for example, criminal justice and policing issues could not be looked at). This appears to be one of the defects in the current Bill at Westminster providing for a Children's Commissioner for Wales.

We would also urge those responsible for establishing a Children's Commissioner in Northern Ireland to have close regard to the duties and powers of the Children's Ombudsmen in jurisdictions such as Norway and Sweden.

To carry out this role effectively the Children's Commissioner must be adequately resourced and equipped with the necessary powers. At the very least the Commissioner's office must be compliant with the UN's so-called "Paris Principles", agreed by the General Assembly in 1993. These set out the characteristics which the UN believes national institutions for the protection of human rights should display. For example, the Principles state that a national institution shall "hear any person and obtain information and any documents necessary for assessing situations falling within its competence."

The Northern Ireland Human Rights Commission welcomes the openness and constructiveness of the Northern Ireland Government in the process thus far. We are pleased to have the chance to contribute to the development of the office of the Children's Commissioner.

There is currently an opportunity which must not be lost for children in Northern Ireland. It is vital that the process of consultation about the role of the proposed Commissioner and ensuing legislation is inclusive and open, but also that it is time-limited. It is crucial that children themselves are consulted during the process and that sufficient resources are made available to make this meaningful.

21 March 2001

Written Submissions

Parents Advice Centre Northern Ireland (PAC) has been in operation since 1979 delivering support and guidance to parents through a helpline and appointment system.

It has three projects: the Parenting Project, Men's Project and the Parenting Forum.

Trained volunteer helpline workers operate the service from four Centres in Belfast, Derry, Dungannon and Ballymena.

Parents Advice Centre very much welcomes the opportunity to consult a Children's Commissioner. While recognising that the primary function of the Commissioner is as an independent champion for children, PAC would emphasize the importance of a holistic approach towards children's issues. The welfare of children is inextricably linked to the parenting the child receives. It is important to emphasise that families are under more strain than ever. Parenting needs a higher profile if we are to support families effectively and give all children the best chance to reach their potential . We would feel strongly that monitoring, investigation and advocacy on behalf of children by the Commissioner should have a parent dimension to it.

Often services relating to children seem to marginalise the parents' role. Examples of this can be seen in Education, Social Services, and Health. While children's interests are paramount, the role of the parent needs to be given consideration.

Currently the range of services which deliver parent support is extremely limited, and choice and accessibility restricted. Much of the support work and the parenting programmes with parents is provided by the voluntary and community sector, and their ability to sustain services is entirely dependant on funding. The uncertainties of finance make planning even in the short-term problematic.

If we are to make meaningful improvements to children's lives, models of good practice should be available to all parents to enable them to enhance their skills and effectiveness. Parents who feel more confident about their parenting have increased self esteem which inevitably affects the children and family life. Parenting programmes are being requested by parents but are not available with appropriate choices to meet all parents needs. Children destined to FAIL.

When problems arise there seems to be recurrent practice which indicates that responses to the child's difficulties are seen in a "pigeon-hole" approach. While it seems that some services work in collaboration parents continue to refer to experiences which indicate that integrated working is not universally in operation. This leaves parents at best confused and at other times angry and frustrated. Inevitably this impacts adversely on the child.

Level of advocacy.

• Poverty
• Lack of support on issues such as child management, discipline, separation and divorce, etc
• Lack of affordable childcare
• Lack of information about support services
• Lack of clarity about processes and systems
• Under-recognition of the importance of their role
• Inability to influence systems which affect their children e.g. schools, hospitals
• Consultation - Training, support - give views on all equal basis
• Voluntary not listened to not rated
• Evaluations carried out by voluntary groups tend not to be regarded highly enough when planning services
• Attitude of authorities and personnel
• Coping with chronic illness
• Child Protection
• All of these key issues impact on child.

By adhering to the principle that parents are an integral part of children's up-bringing when carrying out any investigation or advocacy.

By requiring structures to be in place which will ensure that cross cutting issues will be addressed both interdepartmentally and between children and adult services.

By investigating how policies and practices are able to deliver integrated services for children.

By investigating the policies of service-providers in respect of their criteria for allocating funding towards intervention and preventative services and the difficulties which arise from lack of sustainable services, particularly in the voluntary and community sectors.

By assessing the level of support services available to all parents to meet their needs as a diverse group and robustly promoting the expansion of services where gaps have been identified.

By requiring the Boards and Trusts to take responsibility to ensure that comprehensive and accessible information about the services is available to families.

By requiring Department of Health and Social Services and Public Safety to provide comprehensive information on services for children and parents to all those working with families.

2 May 2001

Written Submissions

The Committee considered the terms of reference for the Children's Commissioner Inquiry and has agreed that it does not wish to make any comment at this stage.

29 March 2001

"10. The Act establishes an office of the Children's Commissioner for Wales and sets out its functions and powers, which will extend to all the services for children regulated in Wales under the Act: children's homes, residential family centres, local authority fostering and adoption services, fostering agencies, voluntary adoption agencies, domiciliary care, the welfare aspects of daycare and childminding services for all children under the age of eight; and the welfare of children living away from home in boarding schools. The Commissioner's powers and functions include the review and monitoring of arrangements for dealing with complaints, 'whistleblowing' and advocacy; the examination of particular cases; and providing assistance, including financial, to a child in making a complaint or in other proceedings. These powers will also extend to children receiving services in other settings regulated under this Act, such as private hospitals."

1. These explanatory notes relate to the Children's Commissioner for Wales Bill as brought from the House of Commons on 8th February 2001. They have been prepared by the Wales Office in order to assist the reader of the Bill and help inform debate upon it. They do not form part of the Bill and have not been endorsed by Parliament.

2. The notes need to be read in conjunction with the Bill. They are not intended to be a comprehensive description of the Bill, so where a clause or a part of a clause does not seem to require any comment, none is given.

3. This Bill implements the policy of the Government and the National Assembly for Wales ('the Assembly') on establishing a Children's Commissioner for Wales ('the Commissioner') with a wide-ranging scope, which encompasses all children in Wales and different sectors and services. This policy is based on the recommendations of the Assembly's Health and Social Services Committee in its report 'A Children's Commissioner for Wales', published in May 2000. This was itself based on the results of the widespread consultation undertaken by the Committee, which appeared to show a consensus in Wales in support of such a policy.

4. The office of the Commissioner is being established initially by virtue of Part V of the Care Standards Act 2000 ('the Act') to reflect Sir Ronald Waterhouse's recommendation on the establishment of a Children's Commissioner in his report Lost in Care - The Report of the Tribunal of Inquiry into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974, (HC201) published in February 2000.

5. The Commissioner's functions under the Act extend to all services for children to be regulated by the Act: children's homes, residential family centres, local authority fostering and adoption services, fostering agencies, voluntary adoption agencies, domiciliary care, private and voluntary hospitals/clinics, the welfare aspects of daycare and childminding services for all children under the age of eight; and the welfare of children living away from home in boarding schools.

6. The Commissioner's functions under the Act include the reviewing and monitoring of arrangements by service providers for:

(a) dealing with complaints, for ensuring that proper action is taken in response to information regarding possible unlawful or dangerous activities, or their concealment ("whistleblowing"), and for making persons available to represent children's views and provide them with advice and support ("advocacy");

(b) the provision of advice and information;

(c) the examination, where the Commissioner considers appropriate, of the cases of particular children who are receiving or have been in receipt of such services;

(d) the provision of assistance, including financial assistance, and representation, in respect of proceedings or disputes or in relation to the operation of procedures and arrangements monitored by the Commissioner; and

(e) making reports, including an annual report on the exercise of his or her functions to the Assembly.

7. The power to require the provision of information and the disclosure of documents may be conferred by the Assembly on the Commissioner in connection with the review and monitoring of the activities specified above and for the purposes of examining particular cases or determining whether a report's recommendations have been complied with.

8. The Bill extends the scope of the Commissioner's role to bodies and persons operating in Wales which have statutory functions or provide statutory services in functional fields devolved to the Assembly.

9. However, the Commissioner's functions under Part V of the Act of reviewing and monitoring arrangements for complaints, for whistleblowing and for advocacy, relate specifically to regulated children's services (as defined in section 78(2) of the Act) and the Bill therefore restricts the extension of these functions to bodies and persons in Wales who provide direct statutory services to or in respect of children, and persons that provide such services on their behalf. This will concern primarily the education and training, health and social services sectors; and the main persons affected will be local authorities, in respect of their provision of education and social services, schools, further and higher education institutions, training organisations, health authorities and National Health Service trusts. The Assembly will also be one of the bodies subject to this function of the Commissioner.

10. The Bill confers on the Commissioner the power to review the effect on children in Wales of any existing or proposed legislation of the Assembly. The Bill also confers on the Commissioner the power to review the effect on children in Wales of any policy, or practice of, or service provided by the Assembly or any body or person listed in the Bill.

11. The Bill, in addition, provides that the principal aim of the Commissioner in exercising his or her functions is to safeguard and promote the rights and welfare of children.

Written Submissions

The Law Society of Northern Ireland (LSNI) welcomes the proposal to appoint a Commissioner for Children in Northern Ireland.

There is a clear need for an overview of services to and for Children provided by government and voluntary agencies with the power to comment at the highest level.

As regards Children before the Courts the issue of delay, creeping into the system is a matter which needs to be kept under constant review.

The Committee has already received comment from a wide cross section of consultees and so LSNI will highlight 5 areas, for which a Commissioner for Children should have regard.

1. There is a need to empower Family Proceedings Courts to appoint a Guardian Ad Litem to represent Children in Private Law Cases where there is a conflict of interest between a child and his/her parents. (LSNI in agreement with NIGALA).

2. LSNI considers that the concept of a cohesive and integrated family court system is desirable. This being an evolution of the Children Order system, where all matters involving children, including juvenile offending, would be dealt with in a distinct stream of courts with a distinctive culture (possible inquisitorial in spirit if not in fact). This will build on the specialist judiciary and lay magistrates and the LSNI children's Panel Solicitors all of whom are products of the Children Order.

3. The need for speedy implementation of the Recommendations of the Report of the Assembly's Health, Social Services and Public Safety Committee's into residential and Secure Accommodation for Children. This is the most pressing of issues.

4. The Commissioner's role should be an overarching one. Yet there needs to be investigatory powers, when all other remedies have been exhausted, the Commissioner should have the ability to report and to press for remedies for individual children and to recommend changes to the law to remedy problems and to plug gaps found in the system. LSNI would query the need for an amicus curiae role, as this is a duplication of the Official Solicitor's remit. Perhaps a review of services in this area is overdue.

5. The Commissioner would be able to make better use of multi-disciplinary opportunities throughout the various Agencies, enabling different and diverse skills to be used to consider issues and to plan, such as those on the Lord Chancellor's Children Order Advisory Committee.

25 April 2001

Written Submissions

BASW(NI) is the largest association representing social work and social workers in England, Scotland, Wales and Northern Ireland. There are currently 400 members in BASW(NI).

BASW (NI) Voices In Practice Group for Family & Child Care endorses this statement, and welcomes the government's acknowledgement of the need for change as evidenced by their decision to appoint a Commissioner for Children. In light of this decision our members were asked three main questions in relation to the Commissioner's role.

• What hopes and aspirations would you have in respect of the Commissioner's role?
• What power, duties and responsibilities should the Commissioner have?
• What concerns would you have in relation to establishing a Commissioner for Children?

Two main themes emerged from the subsequent responses and discussion which this paper will address. Annex I contains the full list of written comments received.

The first theme relates to the issue of rights, children's rights in particular, and the second theme relates to the management of change.

A range of individuals and institutions have within their power the means to help or hinder young people express and claim their rights. Parents, for example, are still entitled by law to hit their children and education legislation maintains that the consumers of education are parents, not young people.

The United Nations Convention on the Rights of the Child (UNCRC) is the first international treaty that recognises children's rights as separate from and additional to the human rights of adults. The implementation of the Human Rights Act 1998 has resulted in greater awareness of rights generally and in relation to children in particular it has led to increasing emphasis on the UNCRC.

While some adults may feel that children's rights have gone too far, there is little evidence to suggest that this is the case. Twenty years ago in Sweden, the smacking of children became illegal. The experience in Sweden during the last twenty years demonstrates the following:

• No increase in prosecution for parental assaults on children since the ban on smacking.
• No increase in compulsory social work intervention in families or removal into care.

In fact, Sweden shows the strongest decline in prosecutions for parental assaults of children amongst parents in their twenties who were themselves brought up without smacking. There is also a marked decline in "out of family" placements of children and of compulsory forms of intervention. Overall, this is a positive picture, with greater use being made by parents of consistent, positive and effective forms of discipline as a consequence of the ban. The Swedish experience illustrates how a change in law can result in changes in attitudes and behaviour.

Change and diversity are now both major characteristics of life in the 21st century. This has impacted significantly on children. They seek more independence and increasingly want to negotiate family decisions that affect them. They are without doubt active participants in a world which will continue to experience increasing change. This is well illustrated by the energy and focus committed to advertising campaigns which target children and young people. The draft Northern Ireland Executive programme for government states that

In order to achieve this aim, it is vital that children's views are heard, their contribution to society valued and their role as citizens recognised. This will require new thinking and closer working relationships between and within relevant bodies. The key players, that is, children, government departments, statutory and voluntary agencies and research communities must have the opportunities to engage in a process which:-

i. promotes debate about important issues including education, employment, criminal justice, parental responsibility, children in need, children in public care, the environment, transport, housing and health; and

ii devises a strategy to lead the way in encouraging families and communities to value children.

The role of the Children's Commissioner should be to check that all of this takes place with the emphasis being on the need to ensure that children are consulted in a meaningful way and that they enjoy their childhood, having experiences which enable them to reach their potential and prepare for adulthood.

Most government departments impact on children. Children's services include the universal and the targeted, the supportive and the custodial.

In 1998 the Inter Departmental Group, representing the Department of Health & Social Services, the Department of Education for Northern Ireland and the Northern Ireland Office, provided guidance to Health & Social Services Boards on the development of multi-agency Children's Services Plans.

Since then, planning frameworks have been established which have identified various priorities according to statutory requirements and assessed need within each Health & Social Services Board area. It is clear however that agencies will struggle to achieve Children's Services Planning objectives without an overall coherent policy direction which is realistically supported by the relevant government departments.

Moreover, account needs to be taken of the regional, national and international perspectives. It is at this broader, strategic level where a Commissioner would be most helpful. They could identify for example, not simply the main current issues for children and young people, but also future trends. How the various agencies are collaborating with each other in order to achieve the overall aim of improving life for children, could be addressed in a yearly report provided by the Commissioner.

The value of any Commissioner lies in their ability to see the "big" picture and to draw attention to both the positive and negative aspects of practice. A previous paper provided for the committee of Health, Social Services and Public Safety illustrates the system of Family & Child Care as a child's mobile, with interconnecting parts which may appear quite different, but usually have a common theme. Movement or change in one part of the mobile will impact on and influence the position of the others. A Commissioner for Children needs to understand how these complex systems work and what the implications of change might be.

As well as the government departments, Boards, Trusts, Voluntary and Community agencies, there are the internal systems within each of these, for example the representation and complaints procedure for each Trust, (see Annex 2). How the Commissioner relates to these systems needs careful exploration, so that his/her role enhances rather than competes.

It is well recognised that change will only effectively take place if the people affected by the change feel that they are meaningfully involved in the process. As the Chinese proverb states:

The role of social workers is founded on the principles of inclusion and participation. The principles of social work practice include:

• Knowledge, skills and experience used positively for the benefit of all sections of the community and individuals.
• Empowerment of clients and their participation in decisions and defining services.
• Collaboration with others in the interests of clients.

Social workers and social work have built up a great deal of experience and knowledge in the area of service user involvement. A Commissioner for children must draw on existing knowledge and expertise in order to ensure that not only are children involved in the decision making processes, but that their involvement is as meaningful as possible.

In 1971 Sherry Arnstein wrote an influential article about citizen participation in public planning schemes. Her ladder of citizen participation remains a popular and useful tool. There are eight rungs on Arnstein's ladder ranging from manipulation to citizen control. An adaptation of Arnstein's ladder was produced by Roger Hart in 1992. His ladder specifically relates to young people's participation (see Annex 3).

In relation to the Commissioner for Children the ladder of participation may be used in a variety of ways. The Commissioner may use it to evaluate the level of young people's participation achieved by the Commission itself; also governmental departments, agencies and even individual workers may use it to evaluate their overall work, or particular projects in which young people are involved.

The overall aim of a Commissioner for Children should be to listen to, think about and act more effectively for children. They should be guided by the principles of the UNCRC namely:

• All children are entitled to basic rights without discrimination.
• The best interests of the child should be the primary concern of decision making.
• Children have the right to life, survival and development.
• The views of children must be taken into account in matters affecting them.

25 April 2001

That the Commissioner will be a positive influence on representing the views of children and young people. That he/she could help pull together other agencies already representing young people to highlight the needs of young people regarding legislation.

• Act as an independent watchdog for the rights of all children living in Northern Ireland.
• Take cases on behalf of children where their rights are denied.
• Promote Children's Rights.
• Revise profile of children's issues.
• Develop good practice guidelines and models.
• Consistent communicative linkage with all bodies and groups working with or concerned about children, especially disadvantaged children e.g., Looked After Children.
• Excluded children.
• Direct access to/with children/young people.
• Self-evaluation built into the role to ensure ongoing relevance.
• Consistent networking/communication between Commissioner and agencies involved with children.
• A role which would be experienced by young people as genuine advocate - a 'Voice for them' in situations where they feel vulnerable or powerless.
• Ensure rights of children are promoted, protected and monitored effectively.
• Ensure children are consulted and involved in matters of policy, planning and implementation of relevant services.
• Fully independent of government.
• Well resourced and linked to allied services.
• Ensure children's voice is listened to at local and national levels.
• Ensure there is an effective complaints procedure, with rights of redress through an independent and accessible system.
• Communication could enhance present aspirations and bring some to reality.

The Commissioner should be more than just a figurehead.

He/she needs to be seen as a powerful voice regarding the needs of young people and increasing his/her profile in society. To sit on established public bodies promoting the voice of young people. To have the ability and legislation to pursue cases perhaps where others have come to an impasse.

• Consider and make appropriate representation on any matter affecting children and their rights.
• Powers necessary to undertake effective investigations.
• Power to take cases where there has been a denial of Children's Rights.
• Power to require the provision and disclosure of documents in connection with functions.
• Must have resources to carry out functions effectively.
• Should be able to investigate legislation for children:

(a) its effectivess/relevance;

(b) equity geographically of services to children;

(c) exploitation of children e.g., work situations;

(d) statutory provision for children's educational needs; and

(e) any situation where children can be oppressed or their human rights denied.

• Statutory advisory function to the review/formulation and evolution of new policies/procedure.
• Identification of resources necessary.
• Ability to highlight and sanction bodies which flout legislation or policies.
• Monitor and review policy and practice in relation to children's services.
• Oversee inspection and regulation of children's services, can assess and advise on improvements.
• Power of inquiry into any matter affecting children in any agency or organisation.

That the role would be diluted and of no substance. That the Commissioner would not have an appropriate range of skills or experience to fulfil the role. He/she would need proper back up and administrative support, budget etc., to take forward cases - he/she needs clout!

• Ensure that the role dovetails with other bodies i.e., the Ombudsman, Equality Commission etc.
• Commissioner needs to be accountable but also independent of government.
• That the commissioner would have 'teeth' to ensure accountability particularly from Health and Social Services Trusts.
• That the role would not have sufficient authority and could be easily disregarded.
• That it would be inappropriately resourced.
• That it would be unrepresentative or tokenistic in character.
• Lack of resources.
• Too narrow a brief - not just looked after children for example.
• Weak powers.
• Tokenistic or "toothless".
• Role is "politicised".

Need for a co-ordinated approach re the Commissioner already appointed in Wales and possibly one later in England.

NIFCA welcomes the proposal for a Children's Commissioner.

• It would be useful to set up local and regional fora of children's groups as sounding boards for the Commissioner.
• Educate, inform and raise general awareness in society generally, especially with parents and teachers, youth leaders and employers.
• Develop a positive partnership with the media to shape and influence the kind of stories written about children.

Despite reservations, something which should be important to the progress of children's rights, we all must look to our own personal practice and that of our agencies and those appointed to promote children's welfare to ensure we also advocate and promote those rights.

Annex 2

Annex 3

REFERENCES

Arnstein, S. (1969) A Ladder of Citizen Participation in the USA, Journal of the American Institute of Planners, 35, 4 216-24.

Hart, R. (1992) Children's Participation from Tokenism to Citizenship. UNICEF.

Willow, C. (1996) Children's Rights and Participation in Residential Care. NCB.

Written Submissions

Children's Services Planning was introduced in Northern Ireland in September 1998, by the Inter-Departmental Group on Children in Need. The Group represented the (then) Department of Health & Social Services, the (then) Department of Education, and the Northern Ireland Office.

Children's Services Planning is needs led, strategic, inter-agency planning for children and young people. It is mandated by Law (The Children's Services Planning Order, Northern Ireland, 1998), which requires each Health Board area to have in place a "Children and Young People's Committee", which consists of senior managers in the following key service areas:

• Health and Social Services
• Education
• Probation
• Police
• The Voluntary Sector.

At the heart of Children's Services Planning is the concept that children and young people who present as "troubled", experience difficulties in several areas of their lives (difficult family circumstances are often linked to poor educational attainment and to emotional or psychological difficulties, poor school attendance can be linked to youth offending, and so on). If the needs of children and young people are closely linked, it is imperative that the services which exist to meet these needs are also closely linked.

The role of the Children and Young People's Committees (which are Chaired by the Director of Social Care for each Board) is to co-ordinate three year inter-agency strategic plans, which are reviewed each year. Northern Ireland is currently in its first phase (1999-2002) of Children's Services Planning.

The core constituency of the Children's Services Plan is made up of children and young people considered to be In Need. In the Western area, the Plan has focused on nine areas.

• Children and Young People with a Disability
• Child Protection
• Early Years
• Youth Justice
• Children and Young People in Care ("Looked After")
• Children and Young People who Leave Care
• Homelessness - Families and Young People
• School Exclusion
• Child and Adolescent Mental Health.

In addition, the Western Area Children's Services Plan has addressed a number of other important themes, including:

• Children and Young People in the Travelling Community
• Suicide Prevention
• Children and Young People's Health Strategy
• Substance Abuse.

The Western Area Children and Young People's Committee has recognised the importance of listening to, and utilizing, the experiences of young people who have been at the receiving end of services. Such experience not only assists in the recognition of need, but also helps identify what has, and what has not, worked. In September 2000, the Western Area Children and Young People's Committee hosted workshops, in Fermanagh and in Derry, inviting a range of organisations working with young people to help them build a channel which would enable young people to become involved in the planning process. The following messages emerged from this exercise.

• Young people need to be treated as independent and informed. Equal treatment is essential.
• The process of involving young people needs to be able to 'connect' with their interests/preferences (need to be entertaining).
• The environment needs to offer personal/emotional safety.
• There needs to be acknowledgement that young people's opinions matter.
• There is a role for adults to provide information that young people can then process. Good information is important.
• The adults need to be the 'right' adults - experienced by young people as trusted / helpful / committed.
• Practical exercises can be very powerful when exploring issues.
• Young people are best suited to talking to the young people.
• There needs to be flexibility re time (time to suit young people).
• Activity related events are good, and time to socialize is important.
• Young people need to be able to exercise choice and have options.
• Young people need to be clear about tasks and outcomes.
• The language used (by adults) needs to be clear, simple, free of jargon.
• Young people need to be comfortable with the place.
• Open selection/election is important.
• There is a need to create/facilitate environment within which young people can talk to each other about the difficult areas.
• Schools offer possibilities for involvement of young people in ideas about planning (Could Children's Services Plan feature in Personal and Social development part of the curriculum?).

• Condescending adult attitudes - being 'talked at'.
• Role not clearly understood.
• Wrong time.
• Adults trying to control the process (don't listen).
• Lack of trust in the adults involved.
• No preparation or groundwork.
• No choice.
• Lack of information.
• Lack of feedback/evaluation.
• When you are afraid to say what you really think.
• When we don't really want to get involved (the exercise needs to be seen as relevant).
• Being placed on committees.
• Feeling that we have been labelled/stigmatised in advance.

• Clear mandates to young people are essential.
• Clear agendas are necessary, but the process needs to be facilitated by young people.
• Adults need to accept that youth led work carries risks.
• It is important for adults to have the ability to 'translate' messages from young people.
• Working in the area of policy can be very frustrating for young people, but this is a good learning experience.
• There is a need to think creatively using different media to engage young people.
• Young people need feedback about the impact of their work ('making a difference' is important). The view was also expressed that the frustration experienced by young people in working in the area of policy (encountering 'brick walls') can be counter-productive for them.
• Young people, with good support, can represent their views and attitudes on committees.
• Youth Clubs/Youth Councils provide a natural point of contact, and should be developed as part of the consultation process.

The Western Area Children and Young People's Committee subsequently heard a presentation from a number of the young people involved in these workshops in December 2000, and decided to create a Steering Group for Young People's Participation, which would be co-chaired by a member of the WACYPC and by a young person, which would have a majority of young people as members, and which would be supported to develop and implement ideas on how to extend the input of young people in need.

This Steering Group has now met on two occasions in 2001. The Group consists of 10 young people, representing 5 organisations:

• Fermanagh Shadow Youth Council
• The Nucleus Centre, Derry
• Irvinestown Youth Club
• The Young Independents Group, Derry
• Extern West.

There are plans to extend membership of this Group to include representation from the Youth Service of the WELB, which is currently developing Youth Forums in each Council area.

29 March 2001

Written Submissions

In addition to their presentation on 4 April 2001 the Western Young People's Steering Group identified issues and problems which they considered affected every young person in Northern Ireland. These issues and problems together with suggested solutions are outlined below:

Peer pressure; self esteem (lack of); alcohol; drugs, family problems, teenage pregnancy; abortion; contraception; emotional distress; domestic violence; depression; homelessness; poverty; policing problems; social exclusion; school exclusion; sexuality/sexual harassment/rape; invasion of privacy (CCTV); self harm; suicide; images to be thin e.g. girls in magazines; lack of facilities/youth venues; disabilities; discrimination; jobs/Employment (fair wages- not); sectarianism/paramilitaries; religion; relationships; residential care/social workers; bullying; poverty; health issues; street violence; and domestic violence.

Depression; suicide; criminal record, young offenders, prison; social exclusion - sexuality, disability, etc; teenage pregnancies/abortion; possibility of leaving home - homelessness; breakdown in communication; domestic violence/abuse; demonising young people; low self esteem - alcohol, drugs, media, education, domestic violence; beat up; excluded from school; getting put in a 'home'; shop-lifting; have a Social Worker; debt; lack of respect; and self harm.

Understanding/knowledge of young people; respect; experience/street wise; 'Modernise' training & skills; young people addressing young people; empathy/sincerity; good listener; open-minded & non-judgemental; friendly/approachable; dedication/interested; secure situation/environment; contacts (know who can help you if they can't); accessibility (times, places, etc.); trustworthy; discreet; relaxed - at the young person's pace; communication skills - know how to talk; encouragement/representation; friend (someone like); confidentiality; more Youth Workers (good); funding for alternative groups/youth workers (More 'Nucleus'!); relaxed environment; safeguards; back up person; child protection; sign-posting; and someone who has been through the same thing as you.

More funding - for health projects; for social projects; provide more facilities; contraception should be more widely available; proper education - about all issues; in schools, youth clubs, residential units; drop-in-centres, health centres, churches; people with proper skills - being able to talk to and work with young people; relaxed environments - suitable for young people; more up-to-date Social Workers; more companies coming to N.I. to provide more jobs; more support groups for sexually harassed; more male support groups; listen to problems and challenge them; talking Forum good public relations; support groups/organisations; change your attitude; changing attitudes of others - change views older people have of young people; start asking questions; contraception; education; opportunities more communication; be sincere; reassess help in health/ social sector; change - homophobic, racist, sectarianism attitudes; empower young people on their rights; more money opportunities; and higher taxes for higher incomes.

April 2001