Dr Niall Muldoon, Ombudsman for Children’s speech at the Children’s Rights Alliance and Department of Children and Youth Affairs First Child Summit

Children’s Rights Alliance and Department of Children and Youth Affairs

First Child Summit

Thursday, 8^th September 2016 at Croke Park Conference Centre

Comments from Dr Niall Muldoon, Ombudsman for Children

Introduction

Ladies and gentleman, I am delighted to join you today for this important and timely conference and I would like to thank the Children’s Rights Alliance and the Department of Children and Youth Affairs for inviting me to share my thoughts with you as Ombudsman for Children. I am also honoured to be addressing Prof. Sandberg and Mr. Madi who earlier this year strongly challenged the Irish Government on their responses to the UN and who insisted at all times on digging deep to extract clear answers. My Office will always be grateful for the work of the UNCRC as it was as a result of their recommendations in 1998 that the Ombudsman for Children’s Office was created.

The UN Committee on the Rights of the Child has invited Ireland to submit its combined fifth and sixth periodic reports by 27 October 2021. As a party to the UN Convention on the Rights of the Child, Ireland has an obligation, under Article 4 to take all measures to implement the Convention. The Committee has highlighted the importance of legal measures of implementation and in this regard, my Office will seek to ensure that significant progress is made before 2021. The Committee’s 2016 Concluding Observations present an opportunity and a road map for the successful implementation of the Convention in Ireland in the next five years. I am calling for a proactive, purposeful and fearless approach to embed children’s rights into Irish law, both by amending and strengthening existing legislation, and in the development of new laws affecting children.

The UNCRC has not been incorporated fully into Irish law and while the passing of the Children’s Referendum to introduce Article 42A has been hugely important, it falls significantly short of constitutional incorporation of the key principles of the UNCRC. The incorporation of which into Irish Law is called for as a matter of priority by the Committee. As Ombudsman for Children, I strongly endorse this recommendation.

Legislation

We know that positive change can and does happen without legislation, but too many of the complaints dealt with by the OCO show that the key principles of the UNCRC are not used to guide public administrative actions or decision-making to any great extent, if at all. Although there are areas of good practice, progress has been uneven across the public sector. Building capacity in this area is a key strategic priority for my Office. We are currently working with Professor Kilkelly and her colleagues at the Child Law Clinic at UCC on research relating to child-friendly public administration. In line with the concluding observations of the UN Committee, I believe that embedding positive obligations in legislation will ensure that the State works towards realising the rights of children.

We should build on positive examples such as the Child and Family Relationships Act, where the principle of the best interests was incorporated in line with the guidance provided by the Committee in its General Comment N. 14. I strongly advise the Government to incorporate in all relevant legislation affecting children, the principle of the best interests of the child and the principle of respect for the views of the child in line with the guidance provided by in the General Comments. I want to see these principles mainstreamed across the board in keeping with Articles 3 and 12 of the UNCRC and in a way that also upholds the principle of non-discrimination provided for under Article 2 of the Convention.

My Office will continue to promote and support change of this kind, by calling for legislative change where we feel it is needed and by monitoring and advising on developments in legislation from a children’s rights perspective. Among my immediate priorities in this regard is the Education (Admission to Schools) Bill 2016.

As our guest, Mr. Madi said to the Government in January this year “Good intentions by the State party should be matched by implementation on the ground”. For legislation to have any meaning or impact in children lives, it must be implemented.

By way of example, let me highlight some areas of concern:

Firstly, Article 42A of our Constitution makes provision for the best interests of the child to be determined and the views of the child to be ascertained in the context of proceedings around adoption, guardianship or custody of or access to any child. However, the resources and ancillary services are not in place to support the courts to provide an enabling, inclusive, equitable and meaningful amenity for children and young people. Quite apart from the significant positive effect it will have on children and the decisions made in these cases, I would suggest that the constitutional imperative derived from Article 42A makes for a compelling reason to allocate the resources required to translate this essential piece of legislation into reality.

Secondly, let me briefly mention children with special educational needs. The EPSEN Act 2004, which provides a statutory framework for supporting and educating children with such needs, has not been fully implemented. And worryingly we do not have a specific timeline or commitment of when this will happen. That is simply not good enough. I am also concerned that spending and policy in this area is focused on the provision of SNAs rather than individualised educational plans, which were envisaged by the legislation. I wish to see a published plan that sets out a clear timeline, as well as the concrete, measurable steps that will be taken to fully implement this legislation and future legislation affecting this group of children.

Finally, the previous Government committed to end the detention of 16 and 17 year olds in St Patrick’s Institution; a welcome if long overdue development. Yet four years on, and notwithstanding the enactment last year of the Prisons Act 2015 and the Children (Amendment) Act 2015, 17 year olds may still be remanded at St Patrick’s Institution, and 17 year olds are still being detained on sentence at Wheatfield Adult Prison.

While I appreciate the challenges that exist in bringing Oberstown fully into operation as a national detention campus for all young people under the age of 18, I am very concerned that this issue has not been resolved yet. Recent events on the Campus highlight the necessity to have a positive and agreed culture across both staff and management so that the young people in their care can avoid the negative effects of being locked up in their rooms alone for between 18 and 38 hours. I urge all parties to the industrial dispute; unions, management and DCYA to negotiate so that this is the last time the rights of the residents are put at risk. I look forward to the closure of all adult prisons to under 18s very soon and I know that only then will the true worth of Oberstown begin to come to the fore.

Policy and Strategy

In relation to policy and strategy and, specifically, Better Outcomes, Brighter Futures, I – like the UN Committee [para.12] – would like to see implementation of this national policy framework supported by the requisite human, technical and financial resources. This is a pivotal whole-of-Government policy. Work to implement it should be underpinned by indicators based on Ireland’s obligations under the UNCRC. I have already raised the matter of child rights indicators with the DCYA and my Office will continue to engage with the Department in this regard.

Allocation of Resources

As the UN High Commissioner for Human Rights noted in his 2014 report Towards Better Investment in the Rights of the Child, “no Government can claim to be fulfilling children’s rights to the maximum extent of its available resources unless it is able to identify the proportion of its budgets allocated to children, both directly and indirectly.”

I know that my colleague, the Northern Ireland Children’s Commissioner, Koulla Yiasouma asked the heads of each Government Department how much they spent on children in a calendar year and none of them were able to tell her. Therefore, in line with the Committee’s recommendations, a tracking system should be introduced for the allocation and the use of resources for children, throughout the budget at all levels of government. I want the Government to develop cross-departmental estimates for expenditure on children and young people.

Independent Monitoring

Since Ireland’s appearance before the UNCRC in early 2016, agreement has been reached to extend my complaints-handling remit to include children in Direct Provision. I have been assured that the completion of this work is imminent and I expect that by the end of this year I will be in a position to accept and examine complaints relating to children in Direct Provision. It is my strong view that no child in this State should be precluded from accessing my Office in its capacity as an independent, statutory complaints-handling body for children.

Institutions like the Ombudsman for Children’s Office play a vital role in our democracy by providing alternative redress mechanisms and independently monitoring and holding public bodies to account. One of my strategic priorities over the coming years is to promote and support good practice in complaints-handling affecting children and young people, starting with education providers. We have commenced an initiative drafting the Golden Rules of child-friendly complaints-handling in and by schools. I am also monitoring developments of the proposed Parents and Students Charter, and I will be engaging with the Department of Education and Skills to ensure that the grievance procedure provided for under the Charter will be consistent with good complaints-handling practice. I also want to see a recalibration of powers to ensure the Department exercises the necessary degree of oversight of schools’ development and implementation of a Charter.

Conclusion

Realising children’s rights is an unfinished project in Ireland and although we cannot complete this mission overnight, we also cannot accept the status quo. I am loathe to say it but children who cannot wait, are still waiting.

We all know that sustained, concerted and collective effort is required if we are to translate our obligations to children under the UNCRC into a meaningful reality for all children in Ireland. I am committed to doing everything I can in my capacity as Ombudsman for Children to make the next five years, five very good years for children’s rights in Ireland. I know that all of us here share this commitment in the context of your own roles. I hope that we can work together constructively and effectively to make great strides in realising children’s rights under the Convention so that every child’s daily life is improved.

It has been said – “If you give someone a commitment you build hope, but if you follow through on that commitment you build TRUST”. I look forward to the children of Ireland being able to trust the State much more over the next five years.

Thank you

• 8 Meán Fomhair 2016
• Cineál: Óraid