Presentation by the Ombudsman for Children, Dr. Niall Muldoon, to the Joint Oireachtas Committee on Health and Children

I would like to thank the Chairman for the invitation to meet with the Committee this morning. After working for nearly twenty years as a psychologist, the majority of it spent in the area of child protection, and two and a half years as Director of Investigations at the Ombudsman for Children’s Office I was deeply honoured to be chosen as Ombudsman for Children. I received my Warrant of Appointment from the President in February of this year and I welcome the opportunity to make my first appearance, in my capacity as Ombudsman for Children, in front of this Committee to discuss the role and functions of my Office.

As you are aware the Ombudsman for Children’s Office is an independent human rights institution established under the Ombudsman for Children Act, 2002 to promote and monitor the rights of children in Ireland.

My Office has a unique combination of statutory functions. The one that is perhaps most familiar to the Committee is the function to examine and investigate complaints made by or on behalf of children. In carrying out this function, the Ombudsman for Children’s Office observes the fundamental principles of an Ombudsman: the Office is independent and impartial; it is neither an advocate for the complainant nor an adversary to the public body; the Office seeks at all times to promote the swift resolution of complaints at a local level, where possible; and it aims to achieve systemic change through its investigatory work by tackling the root causes of the complaints we receive.

However, the investigatory mandate set out in the Ombudsman for Children Act also contains a number of distinct elements derived from the UN Convention on the Rights of the Child, namely the obligation to have regard to the best interests of the child and give due consideration to the wishes of the child when investigating a complaint. My Office has developed considerable expertise with respect to engaging directly with children – some of whom are very young – when examining the cases that come to us. This aspect of accessibility has been identified by the UN Committee on the Rights of the Child as an essential component to the work of an Ombudsman for Children.

Responsibilities under Section 7 of Ombudsman for Children Act

In addition to examining and investigating complaints, which I will go into in more detail later, the Ombudsman for Children’s Office is mandated to promote and monitor the rights of all children in Ireland. The Oireachtas conferred a range of functions on the Ombudsman for Children under section 7 of the Act to carry out this complementary role. These functions include: advising the Government and the Oireachtas on law and policy affecting children; advising Ministers of the Government on the development and coordination of policy affecting children; promoting awareness of the UN Convention on the Rights of the Child, including among young people; and engaging directly with children and young people to highlight issues relating to their rights that are of concern to children themselves.

As examples of these functions the Office has just recently provided advice to Government on the Criminal Law (Sexual Offences) Bill and is currently reviewing the Education (Admissions to School) Bill. In relation to engaging with children and young people we have continued to build on our excellent programme for Primary and Post Primary school students and we provided human rights workshops to almost 1,500 young people, from 17 counties in 2013.

The Office’s different functions inform and support each other. Work undertaken in accordance with one particular statutory function may trigger complementary work under a different function. Similarly, where there is an obstacle to tackling a children’s rights issue – due to an exclusion to the OCO’s investigatory remit, for example – we can use another function to address the problem. Which is what we did in relation to St. Patricks Institution where we engaged the young people about how they found the place and the concerns they had? This was done when the OCO had no investigatory remit, prior to July 2012. My intention in setting out this example is to demonstrate that a broad mandate that blends different functions can offer a range of options to address children’s rights issues; this is a very important aspect of the strong and robust mandate that the Oireachtas has given my Office.

Strengthening of Ombudsman for Children Act

Although the mandate is strong and robust, my Office has identified areas in which the Ombudsman for Children Act could be further strengthened. In March 2012, the OCO submitted its first review of the operation of the Ombudsman for Children Act to the Oireachtas, in accordance with its statutory function. I am glad to report that many of the changes sought by the OCO in its review of the operation of the Act were achieved through the Ombudsman (Amendment) Act 2012. In particular, a number of public bodies previously excluded from the investigatory remit of the Office – such as the National Council for Special Education (NCSE) and the State Examinations Commission (SEC) – became reviewable agencies.

Despite the changes made at that time my Office is still seeking to clarify the remit in relation to Direct Provision. The Committee is well acquainted with the need for appropriate, independent complaints-handling for protection applicants, including those currently residing in Direct Provision centres. The long-standing position of my Office is that the current exclusion to the investigatory remit of the OCO in relation to the administration of the law regarding asylum and immigration relates only to decisions on status; my Office believes everything else – including issues regarding accommodation, administration processes and internal complaint handling– are in remit. However, the Department of Justice and Equality does not share this understanding. The Ombudsman for Children’s Office has consistently recommended that the Oireachtas put the matter beyond doubt and provide clear, unambiguous access for protection applicants to my Office. This is also the view of the Oireachtas Public Service Oversight and Petitions Committee who recommended, in their recent report, that QUOTE “Children in the Direct Provision System should have the same rights as any other child in the State…[and recommends that] for as long as the Direct Provision System remains in existence, that the jurisdiction of the Ombudsman for Children…include the Direct Provision System, the Reception and Integration Agency (RIA) as well as the administration of the law relating to immigration and naturalisation” END QUOTE.

I am also continuing to seek to have enhanced independence for my Office. At present, the OCO receives its funding through the Department of Children and Youth Affairs. In practical terms, the control of the OCO’s budget by the Department has not proven to be problematic. However, it is inappropriate for an independent human rights institution to receive its funding through a public body that it can investigate. I believe that the situation should be remedied by providing for the OCO’s funding to come directly from the Oireachtas. This was also a recommendation made by the UN Committee on the Rights of the Child in 2006 and will likely be made again in 2016.

Complaints and Investigation remit

My Office saw a significant rise in the number of complaints received in 2013 with 16% more complaints received than in 2012 and a 28% increase since 2010. The majority of complaints are in relation to Education (43% in 2013) and a significant proportion of complaints received also relate to family support, care and protection (26% in 2013).  The vast majority of complaints (75% in 2013) are brought by parents on behalf of their children.

The complaints received range in levels of complexity and we maintain our focus on seeking to resolve each one within the local procedures mechanism and as quickly as possible. However, when the issues raised are of a more complicated nature these may be more difficult to resolve locally and therefore could require a full investigation to achieve a resolution.  Examples of issues we have investigated previously include the handling of child protection notifications by a Social Work area; access to education for children in care; resource allocation for children with special needs; and the admission policy within a school.

As Education is the focus of the majority of complaints to the Office I have looked especially closely at the issues and outcomes in this regard. It is clear to me that the concerns that we have raised over many years in relation to the complaints architecture within Education are falling on deaf ears. My Office has urged successive governments to commence Part V of the Teaching Council Act (2001) and also Section 28 of the Education Act (1998) as these are both elements of the complaints structure that are not available to the general public. Parents are entitled to expect to be able to complain about the professional conduct of teachers and to assume there is a standardised complaints system within all schools – however, neither of those is available to them at present. While the OCO was set up with the expectation that it would be one part of the complaints landscape in schools, it has de facto become the only element available to many parents – and that is not good enough. I would urge this Committee to seek to have both of those missing elements brought into being as soon as possible.

While we work continuously to provide a high standard of service within our Complaints and Investigations team, the increasing volume and complexity of complaints is placing significant demands on our capacity to respond. I want to take this opportunity to commend all my staff for their efforts in this regard and must acknowledge that it has put immense pressure on the whole Office. This has been exacerbated by the delay in returning to a full staff compliment following a number of vacancies in the past six months. I do expect that all of the staffing proposals that I made to the Department of Children and Youth Affairs will be cleared for filling by the Department of Public Expenditure and Reform very soon. However, the delay in this is severely hampering my capacity to engage fully with the task at hand and makes the fulfilment of my statutory functions much more difficult.

Issues for the future

I would also like to outline a number of key areas of concern for me and my Office as I begin my six year term.

Best interest principle

After many years of pushing by this Office, it was satisfying to see the 31^st Amendment to the Irish Constitution, which was passed in 2012, voted into law in April of this year. This amendment stated that the best interests of a child should be the “paramount consideration” in all decisions relating to a child within the judicial system. This is indeed a huge step forward for us as a nation and how we view children and it changes the way the State must consider them when making decisions relating to them. The commitment from the State that comes with these amendments gives me hope that we can secure a future for all our children where the Public Service in general will seek to always consider the best interest of a child when decisions relating to them have to be made.

In my role as Director of Investigations previously, I found that at times, individual children can be largely invisible and decision making can be excessively bureaucratic and lacking in the necessary flexibility to meet the individual needs of children. It would be my aim to see, in the future, the mainstreaming of the best interests principle as a positive obligation in all relevant legislation.

Homelessness for Children

The current level of homelessness among children is distressing and is part of the fallout from the devastation wrought by the economic crisis. Focus Ireland spoke on Tuesday last about receiving, in Dublin alone, 71 referrals in April for families who have been assessed as homeless – this was double the number from April last year. There are approximately 1,000 children in over 400 families currently being housed in hotel type accommodations across this country because they have been made homeless by economic circumstances. When I talk to people about life in such settings I hear concerns such as– “not fit for family life”, “inhibiting children’s social development”, “exerting pressure on the mental health of the adults”, “interfering with the education of the children”, “hampering access to health services”. These families are the true victims of the economic crash, and perhaps even the upturn, as many are homeless due to the rush of landlords to maximise rent on properties where they were formerly happy to receive Rent Supplement.  I hear of families experiencing rent increases three or four months in a row so that they are eventually forced to leave a property. While the use of hotel accommodation is a new phenomenon the message should be that this cannot be a long term solution – even a few months in such close quarters, with limited facilities and at the whim of the commercial hotel market can be detrimental to a young child. This is an issue that I plan to consider deeply and decide how best to bring the various powers of my Office to bear to improve the lot of the children and young people involved.

Youth Mental Health 

I also intend to look more closely at the issue of Youth Mental Health. I will look at what is being done to promote protective factors in relation to it. I will also determine what is being done to ensure that all children, who need a service to help them, are being provided with an equal opportunity, regardless of location and socioeconomic circumstances, to access the best available services quickly. As a psychologist I am acutely aware of the importance of early intervention when seeking to help children recover from traumatic events such as sexual abuse, bereavement, separation or bullying and I am also aware that in many cases the services available to those children are extremely limited or non-existent. Then, when a child does get an appointment, the service may be so stretched as to only offer a small number of sessions. A young child of 12 years of age who is contemplating suicide or is showing signs of serious depression cannot afford to wait a year for an assessment, but that is currently the situation in one third of all cases. Such a delay is extremely counterproductive and can make the journey to health much more difficult. I have worked therapeutically with some extraordinarily brave young people who have amazed me with their ability to recover from even the most horrific trauma. I see it as a crucial part of this States duty to offer them the opportunity to recover as quickly as possible and in the most appropriate setting as possible. I know there is an opening up of a conversation in this country around mental health in general and people, including children and young people, are starting to discuss the importance of staying well and seeking help when their mental health is not good. It is crucial that when those children and young people take that brave step forward to seek help the system is there to support them. I will be determining how my Office can play a role in ensuring that is the case.

I would like to thank the Committee for its attention this morning. I am very happy to address any queries the Committee may have in relation to them or indeed to other aspects my role and functions as Ombudsman for Children.

 

Issued on behalf of the Ombudsman for Children Office by Fennell Communications Ltd.,

For further information please contact:
Sinéad Fennell
Fennell Communications Ltd.
Tel: 086 607 5266
Email: sinead@fennellcommunications.ie

• 28 Bealtaine 2015
• Cineál: Óraid