Some of you may already know the work of my office and some of you may be familiar with the legislation that created the office, but you’ll forgive me if I go over some of that ground again.
In brief, I have extensive powers. As someone who a politician in former life, I never thought I’d say those words…so I’ll say them again! I have extensive powers. In some instances I even have the powers equivalent to a High Court judge!
But before getting into too much detail some explanation of what my job is in the widest sense.
NICCY’S STATUTORY ROLE
The Office of the Commissioner for Children and Young People (“NICCY”) was established by the Commissioner for Children and Young People (Northern Ireland) Order 2003 (“the Order”).
My principal aim is set out in Article 6 of the Order:
It says that my job is to safeguard and promote the rights and best interests of children and young people. The explanatory paragraphs which follow say that my main consideration will always be the rights of the child or young person.
Importantly I must seek out the views and wishes of children and I must ‘have regard to’ the important role of parents in the “upbringing and development of their children”.
Rights have, of course, been a topic of much chatter in the media and sometimes they forget that the principal international instrument for children’s rights actually also protects parent’s rights. That is the United Nations Convention on the Rights of the Child, or the UNCRC. And it is also something that I must have regard to.
My duties as Commissioner are set out in Article 7 of the Order. In short these include a duty to promote a range of issues, such as making sure children and people’s rights are understood. And before anyone reaches for their phone to call Stephen Nolan I have a duty to promote a respect among children and young people for the rights of others.
Importantly I have a duty to review the adequacy and effectiveness of law and practice relating to the rights and welfare of children and young persons.
How I do this is in a number of ways, and before moving on to the legal and complaints work I must mention the other parts of my office, which work to help me meet my obligations as commissioner.
I have a Research, Policy and Service Review team which not only conducts primary research but reviews entire services, responds to Government policy, and helps set policy for the office.
There is also a Communications and Participation team which has the important job of making sure that we make sure children and young people have a say in the decisions that affect their lives. They also have the misfortune of having to deal with the media and politicians.
I also want to clear up an issue about what exactly is the definition of a child or young person. My legislation is quite explicit about that. It says that I work for and on behalf of children who are under 18. However, there are two other groups who I can work on behalf of up to the age of 21. These are children with a disability or children who have been in care.
Now on to my powers that relate to legal proceedings… These are laid out in Articles 14 and 15 of my establishing order. They include bring, intervene in or assist in legal proceedings (other than criminal proceedings) involving law or practice on the rights or welfare of children or young persons. I have also the power to act as “amicus curiae” in any such proceedings.
Article 14(2) states that I can only intervene in proceedings with the permission of the court or tribunal. 14(3) states that the Commissioner shall not bring or apply to intervene in proceedings unless I’m satisfied that a
case raises a question of principle; or there are other special circumstances which make it appropriate for the me to do so.
As an example of the use of our legal powers, we are currently involved in legal proceedings in the High Court to challenge the introduction of Article 2 of the Law Reform (Miscellaneous Provisions) Order 2006 (regarding the physical punishment of children.
The final hearing of this case is due to commence on19th November. The Children’s Law Centre, Save the Children and the Parents Advice Centre will be intervening in this case. The Council of Ministers in Europe has indicated that they are awaiting the outcome of the case before finalising their deliberations regarding the case of A v UK (which considers the positive obligation on all states to protect children from ill treatment under Article 3 of the ECHR.)
Article 15 sets out my power to provide assistance in relation to legal proceedings: this Article applies to proceedings involving law or practice concerning the rights or welfare of children or young persons which a child or young person has started, or wishes to start; or proceedings in the course of which a child or young person relies, or wishes to rely, on such law or practice.
Where the child or young person applies to me under this Article for assistance, I may grant the application if I’m satisfied, that the case raises a question of principle, and it would be unreasonable to expect the child or young person to deal with the case without assistance because of its complexity.
I cannot grant an application for assistance unless it appears to that there is no other person or body likely to provide such assistance. For example, there have been cases concerning the representation of children and young people and their interests when it may not be clear at the outset whether they come firmly within the Official Solicitor’s remit. My Office has liaised successfully with the OS on a number of matters, with both agencies focussed on securing the best outcome for a young person.
Article 15(4) enables me to arrange for the provision of legal advice or representation and any other assistance thought appropriate.
In what type of case am I likely to exercise my powers to intervene or to assist?
Such a case is likely to arise in a context which furthers my principal aim, which places express emphasis on the importance of the voice of the child. It also places upon me, as mentioned earlier, a statutory duty to have regard to the UNCRC in the exercise of my functions.
One of the most discussed rights in the UNCRC is the Article 12 Right to be heard. This right has been one of NICCY’s Priority areas of work, and could be a likely ground upon which I may be able to intervene or assist in Family law proceedings, if appropriate.
Advocacy services for children and young people in general are underdeveloped in Northern Ireland, and yet are fundamental to the realisation of a number of rights in the UNCRC in regards to Articles 12,13,17,3,6,2 and 4.
There are significant gaps in independent advocacy services for children with educational difficulties, children from ethnic minorities, Traveller children, children with complex medical needs, homeless young people, children in secure accommodation, psychiatric care and juvenile justice centres, children involved in separation and divorce proceedings and unaccompanied minors. Many of these issues my office has worked has identified and clarified where these gaps are and recommended ways to improve the situation.
You, as legal practitioners, are no doubt becoming more aware of the need to ensure that a child’s voice is effectively heard, (and not just within legal proceedings). There have already been some instances involving the right of the child to be heard in which we have been asked to participate or intervene. Due to the confidentiality given by my Office to each case, you will understand that I cannot give details of an individual case.
However, I can give an example of the need for the voice of the child to be heard in family proceedings, that of representation of the child in adoption proceedings. Children are not represented before the court in the application to adopt them, yet these proceedings will result in one of the most important decisions that will ever be made about them in their lives – a decision which will have a significant impact upon their future health and happiness. Concerns have been expressed about procedures that may effectively deny children the right to effectively participate and make their voices heard in such a key decision about their lives, and whether that fully respects their Article 8 rights to a fair hearing, interpreted in accordance with Article 12 of the UNCRC.
ACCESS TO LEGAL ASSISTANCE
Bringing, intervening or assisting in legal proceedings is one of the many important aspects of my role and the work of my Office. As such, the legal budget is, of course, limited. It is also often not necessary to embark upon a legal process in order to address or challenge a situation; we will often decide to assist applicants by seeking to bring about change through a review or investigation into the relevant sector or service to which the applicant’s complaint relates, rather than assisting his or her individual court case.
An example of how we did this, on a large scale, was when our Legal and Complaints Team was contacted by a number of parents of children who attended Special schools. Each child had been Statemented as needing Speech and Language Therapy, but the problem was that the therapy they were actually receiving was often too little, too infrequent or, in the worst cases, none at all.
The concerns were that there was not enough provision from the top; not enough therapists being provided to each school for sufficient time to provide an adequate and consistent service.
There was no criticism at all of the actual therapists; it was the lack of provision which was affecting these children. The Principals of the Special Schools were so frustrated on the children’s behalf, and had no real control over the situation.
Eventually we had almost 130 children’s details; our Research Team had previously carried out a big piece of work on the provision of Speech and Language therapy to children and young people in Northern Ireland, and in their “follow up” a year later, found there were many areas of improvement of provision needed.
Regarding the 130 children, we sought Counsel’s Opinion and received an extremely comprehensive treatment of the issue and the children’s human rights. This informed us and helped us in our ongoing discussions with those “at the top”, who were responsible for the funding and provision of this vital service. Our aim is to improve the situation for these and all children in need of services, and we will continue to push this.
We will, of course, take legal action if it is the right thing to do in the circumstances; and each parent too has the option of exploring the legal route for their child, but we felt this way was effective in representing the best interests of both the 130 children involved, and all children and young people in similar situations.
If you are unsure about whether we would have a role regarding a legal issue affecting children and young people, do not hesitate to contact the Legal & Complaints Team and discuss it. There may well be situations where we can work together in the best interest of the child, and if the matter does not fall within our remit, we will do our best to refer you in the right direction.
CRITERIA FOR ASSISTANCE
Where some form of legal assistance is asked for, it has to satisfy our Legal Criteria for assistance. A Legal Funding Committee meets to consider the request against the criteria. The criteria are on our web-site, (in the Corporate Plan section.) and, if you’ll indulge me reading them out – as they are important – are as follows:-
1) It must raise an issue of legal principle or uncertainty;
2) It would be unreasonable to expect the child or young person to deal with the case without assistance because of its complexity, or because of his position in relation to another person involved, or some other reason;
3) There are other special circumstances which make it appropriate for NICCY to provide assistance;
4) There is no other person or body likely to provide such assistance;
5) The availability of resources and whether the cost is commensurate with the benefit to be gained;
6) There is a reasonable chance of success;
And 2 out of the following 3 must be satisfied:
7) It comes within our agreed priorities as set out in our Corporate Plan;
8) The outcome will affect a number of children or is a very serious breach of a child or young person’s rights;
9) It has the potential to promote awareness of children’s rights and/or bring about a change in practice.
We are sometimes asked to make a written submission, or intervene in writing, in a legal case. Again, this will be considered against our criteria.
If assistance is not possible or available, we have good relationships with many other agencies and organisations, such as the Children’s Law Centre, the Ombudsman, Equality Commission and Human Rights Commission, who may be able to assist. We are always open to listening, and finding the best route to take for children and young person………….legal or otherwise!
In conclusion, I have extensive powers – but I also have extensive duties. And in general it can be said that many in the statutory sector have a duty to respond to me! For instance during any formal investigation by my office a refusal to appear as a witness will be regarded as a contempt of court.
I do not take these powers lightly. Rather they are an obligation I must meet, and a job I must do for all of Northern Ireland’s children and young people.
Now, I want you to do something for me! On Thursday I’m launching a consultation on my work for the next three years. This consultation will also appear in our annual review – copies of which you can pick up with your Belfast Telegraph on Friday – and on my website.
I literally want you to tell me what you think about my proposed work. Not just as professionals but as parents.
Thank you for your time.