Promoting and Safeguarding Children’s Rights and Welfare

A significant majority of the complaints we receive every year are made by parents on behalf of their children – a consistent indication for us that parents are the strongest advocates for the rights and welfare of their children. On average, over 40% of complaints made to the Office annually relate to Education. Two further significant categories of complaint that we deal with annually are the whole area of Family support, care and child protection, and then Health.

I am pleased to report that my Office has generally been able to move quickly to resolve complaints and that, in the case of complex complaints requiring a full statutory investigation, the public bodies concerned have usually been open to recommendations we have made.

5. The Ombudsman for Children Act 2002 also invests my Office with a set of additional statutory functions, which are broadly concerned with promoting children’s rights and welfare. Among my obligations in this regard are:

• to encourage public bodies to develop policies, practices and procedures, which are designed to promote children’s rights and welfare;
• to advise any Minister of Government on matters relating to the rights and welfare of children, including relevant developments in legislation and public policy;
• to consult with children and to highlight issues relating to their rights and welfare that are of concern to children themselves;
• to promote awareness among members of the public, including children, of matters relating to children’s rights, including the principles and provisions of the UN Convention on the Rights of the Child; and
• to undertake, promote or publish research into any matter relating to the rights and welfare of children.

6. The relationship between these functions and my Office’s statutory function to investigate complaints is complementary: they inform and support each other. Indeed, there is no question that having these dual functions strengthens the capacity of my Office to work effectively for and with children. During the last eleven years, the OCO has taken a versatile approach to engaging the complementary relationship between these two functions.

7. The cases we deal with in the context of our complaints-handling role are a unique data set and provide important insights into how policies, procedures and practices within public administration in Ireland impact on the lives of children and their families. This body of knowledge informs our advices to government on developments in law and public policy affecting children as well as our engagement with international monitoring mechanisms.

By way of a recent example, the UN Committee on the Rights of the Child is currently considering Ireland’s consolidated third and fourth report on the State’s progress towards fulfilling its obligations to children under the UNCRC. In the context of this process, my Office submitted an alternative report to and participated in a pre-sessional meeting with the UN Committee in our capacity as a national human rights institution for children in Ireland. Statutory investigations undertaken by my Office as well as trends emerging from complaints we have dealt with inform my report and corresponding recommendations to the UN Committee. In addition to this report, my Office also submitted a complementary publication to the UN Committee called A Word from the Wise, which sets out the stories behind a number of cases we have examined or investigated and highlights systemic issues affecting children in Ireland. These first-hand accounts of children, young people and parents illustrate some of the very significant challenges that children in Ireland can face in a way that my Office cannot and, in so doing, demonstrate the determination of parents to achieve the best for their children and how listening to children and young people presents a vital opportunity for us to learn from them. In this regard, I am reminded of Cait, one of the young people whose stories we published in A Word from the Wise and who spent time in an adult psychiatric ward, pending a place becoming available in a more appropriate adolescent mental health unit:

“I had a terrible experience and other teenagers shouldn’t have to go through it. The facilities and lack of staff is kind of a disgrace. People are caring. Lots of them are good at their job, but there’s not enough of them and not enough spaces for children and no out-of-hours response if it’s needed. There should be specific wards for my age. The adult ward can’t cope with children. That’s not fair to us but it’s not fair for the staff either.

I know a lot about mental health. About the system and its faults. I know myself better now. I have a lot to say for myself in the world and about the world.”

8. Similarly, the statutory functions associated with my role to promote children’s rights and welfare complement my Office’s complaints-handling work in a variety of ways. For example, the Ombudsman for Children Act requires that, when investigating complaints, we must have regard to the best interests of the child concerned and, in so far as practicable, give due consideration to the child’s wishes. As such, and recalling Articles 3 and 12 of the UNCRC, the Act places two fundamental children’s rights principles at the heart of the OCO’s approach to handling complaints. However, when investigating complaints, we do not investigate whether or not children’s rights have been, or may have been, infringed. Rather, the 2002 Act prescribes two considerations for the Office’s investigation of complaints, which are consistent with the role of an Ombudsman:

• Are the administrative actions, or inactions, complained of indicative of poor administration?
• Have the administrative actions, or inactions, complained of had an adverse effect on the child?

In light of this, the Office has engaged its complementary statutory functions to undertake a children’s rights analysis of a reflective sample of our investigations. Working with international standards, in particular the UNCRC and the European Convention on Human Rights, this analysis of public administrative processes affecting children and investigated by the OCO found evidence of:

• policy implementation dominating over the rights and interests of individual children;
• deficits in awareness as regards the impact of decision-making on children and how quicklyharm can be done to children;
• failures to rigorously apply the best interests principle;
• failures to ensure children’s voices are heard and their views appropriately considered;
• lack of awareness of children’s rights as recognised by international standards;
• an absence of child impact analyses or mechanisms to review policy; and
• a need for children’s rights training for relevant public bodies.

Analyses of this kind support my Office to identify and highlight the extent to which policies, procedures and practices within different areas of public administration in Ireland are consistent with Ireland’s obligations under the UNCRC. Such analysis provides data that our investigation of complaints, from the standard Ombudsman perspective alone, would not.

9. Through its complementary functions to promote children’s rights and welfare, my Office has also been able to engage with issues affecting children that we have been precluded by law from investigating in the context of our complaints-handling function.

As I have mentioned, I have positive obligations to consult directly with children and to highlight issues relating to their rights and welfare, which are of concern to children themselves. The Office has implemented a range of initiatives since its establishment, which have focused on hearing and highlighting the views and experiences of children and young people.

Undertaken in 2009/2010, one such initiative involved engaging directly with 16 and 17 year old boys detained in St. Patrick’s Institution, a closed, medium security prison in Dublin for 16 to 21 year olds. The decision to implement this initiative arose because, although concerned about matters relating to the detention of young people in St Patrick’s, the Office was precluded by the Ombudsman for Children Act from investigating any actions taken in the administration of prisons in Ireland.

As with the Office’s other initiatives to consult with and highlight the views of children, the approach taken to framing our engagement with young people in St Patrick’s Institution and documenting the findings of the consultation was informed by relevant international standards in the area of juvenile justice, including the principles and provisions of the UNCRC. This engagement took some time to complete and required the Office to build up a rapport, over weeks and months, with the young people in the prison so that they could trust us enough to offer honest insights into their circumstances. An example of what was said by the 16 & 17 year olds –

Contact with Family

A young person’s comment on the screened visiting area in St Patrick’s Institution:

“… it’s not right for a kid to be coming up looking at you behind a screen … You want it to look normal for him. You don’t want a kid looking at you behind glass for the rest of your life.”

Accommodation

“There’s a bed, there’s a telly. …The mattress is that skinny, you’re able to fold it into a little ball … You’re sleeping on a lump of steel … You can feel everything on your back … It’s just like a concrete block. … There’s a counter beside the bed. A little metal counter. Stuck to the wall … And two little lockers … You’d fit … a t-shirt and a pair of bottoms and a pair of jocks and socks in this thing. … And then there’s a toilet”

Situating the views and experiences shared by young people in the context of the UNCRC and other international instruments supported the Office to provide a children’s rights perspective on the issues concerned and to do so with reference to Ireland’s international obligations and the perspectives of international monitoring mechanisms, including the UN Committee on the Rights of the Child.

I am of the view that this approach strengthened the Office’s work to promote the closure of St Patrick’s Institution to young people under 18 and the extension of our investigative remit in the interim to include young people detained in the Institution. Moreover, I am happy to report that the Office’s remit was subsequently extended in this regard and that, following a commitment by the current Government in 2012, the process to end the detention of young people under 18 in prison is nearing completion.

10. The UNCRC has also been a vital resource and support in our work to prepare advice to Government on developments in law and policy affecting children.

As you may be aware, Ireland operates a dualist system whereby only those international treaties incorporated into Irish law by Ireland’s parliament have effect in Irish law. To date, the UNCRC has not been fully incorporated into our law. Rather, certain principles of the Convention have been partially incorporated into primary legislation in a number of domains while there are others – such as education and health – in which legislation can be seen to lack a child rights-based approach.

It is in this context that the Office has prepared advice on a wide range of legislative proposals affecting children, including legislative developments in the areas of juvenile justice, adoption, civil partnership, child protection, gender recognition, admission to schools, and international protection.

The Office’s work to advise on the probable effect of legislative proposals on children involves a consistent focus on promoting a child-centred, rights-based approach and on encouraging conformity of primary legislation with Ireland’s international human rights obligations. On each occasion, the Office is guided in this regard by international standards, in particular the principles and provisions of the UNCRC and associated General Comments and concluding observations and recommendations issued by the UN Committee.

11. This approach has also underpinned the Office’s engagement with one of the most significant recent developments concerning children’s rights in Ireland, namely an amendment to strengthen children’s rights in Ireland’s Constitution, which was endorsed by the people in a referendum, held in 2012.

The Office called for the position of children’s rights to be improved in the Constitution as far back as 2005. Between 2005 and 2012, the Office made submissions to Government and Parliament on five separate occasions, engaged directly with successive Ministers for Children and Youth Affairs on the elements an amendment to the Constitution should contain, and raised the matter of constitutional reform in this area with a number of parliamentary committees.

On each occasion, the Office’s central message was that Ireland should enshrine key children’s rights principles in the Constitution in order to underpin a fundamental shift in our law, policy and practice regarding children. In particular, the Office called for the inclusion in any such amendment to the Constitution of specific principles set out in the UN Convention on the Rights of the Child.

Although the Thirty-First Amendment was carried by the people in the 2012 referendum, it does not incorporate the principles of the UNCRC to the extent the Office recommended, it does represent a significant and positive step forward for children since it provides a strong foundation for the future incorporation of children’s rights principles into our law and policy. It allows for the “Best Interest” and the “Respect for the Views of the Child” Principles in the context of certain legal proceedings such as children in care, child protection, and adoption, guardianship, custody and access cases.

12. One final area of my Office’s work that is informed and supported by the UNCRC concerns my statutory obligation to promote awareness of matters relating to children’s rights and welfare. Through the education workshops that we deliver at the Office, we have had the opportunity to engage with thousands of children and young people from all over Ireland and to facilitate them to explore the relationship between children’s rights and their daily lives. We have supplemented this work by developing educational materials on issues relating to children’s rights in Ireland for use in schools and, more recently, by creating a dedicated website and app called It’s Your Right to raise awareness of children’s rights among children and to highlight children’s and young people’s perspectives on what different rights under the UNCRC mean to them. Over the last three years, we have also initiated a programme of seminars for postgraduate students who are already pursuing, or who are planning to pursue, careers that involve working with children or that otherwise have the potential to impact directly on children’s lives. Hundreds of students pursuing postgraduate studies in social work, social care, education and child protection have participated in this programme to date and their inputs and feedback underscore for us the importance of building awareness and capacity among professionals as regards implementing a children’s rights-based approach in the context of professional practice.

Concluding remarks

13. It is of course beyond the scope of my contribution to your conference today to offer a detailed assessment of the current situation in relation to children’s rights in Ireland.

I hope it may suffice to suggest that, when we look back over the last eleven years, we can see that significant progress has been made. Among the positive developments has been the aforementioned amendment to Ireland’s Constitution; developments in legislation on important issues affecting children, including family relationships, school admissions and international protection; the appointment of a senior Minister for Children and Youth Affairs and the establishment of a Department of Children and Youth Affairs; the publication of a National Policy Framework to guide the development, coordination and implementation of policies and services for children; the establishment of a dedicated Child and Family Agency, with statutory responsibility for child protection and welfare services; the introduction of a free pre-school year for all children; and a phased cessation to the practice of detaining young people under 18 in prison.

For much of this period, however, Ireland has been beset by an economic crisis that has had serious adverse consequences for many thousands of children. Recent available data indicates that some 138,000 children are living in consistent poverty. Despite the efforts of many professionals to deliver effective services, resource deficits have contributed to protracted delays in dealing with child protection concerns and impeded children’s access to vital health services and education supports. One third of young people requiring inpatient care for mental health difficulties are still being accommodated in adult facilities – (and the impact of that on a young person was clear to see in that quote earlier from Cait). And currently, we are experiencing a housing crisis in which over 1,000 children in over 550 families are homeless and living in emergency accommodation in Dublin.

Building and mainstreaming a culture that upholds and protects the rights of all children living in Ireland will require a sustained programme of reform in law, policy, procedure and practice. Until such time as children’s rights translate fully into the lived experiences of children and young people throughout Ireland, the realisation of children’s rights remains an unfinished project.

It is my hope that the signs of economic recovery, which we are now seeing will support a continued, concerted effort to progress this vital project. In my capacity as Ombudsman for Children, I am fully committed to dedicating our efforts as a national human rights institution for children to ensuring that progress on this project is made for and with children and young people in the years ahead.

I have no doubt that our work will continue to be informed and strengthened by the UNCRC and by the expertise of UN Committee on the Rights of the Child and other eminent actors like Marta Santos Pais, who are providing leadership at international level on vital issues concerning children’s rights and welfare. It is my hope that the work of my Office to promote the rights and welfare of children in Ireland may be of some assistance in turn to those working at international level to advance the progressive realisation of children’s rights in other countries.

Thank you for your attention.