Speech by the Ombudsman for Children at the IHRC & Law Society Human Rights Conference

Speech by the Ombudsman for Children at the IHRC & Law Society Human Rights Conference

This is a very exciting time for children’s rights in Ireland as we approach November 10th, 2012, the day on which people will vote on proposals to amend the Constitution. Putting aside the question of whether stronger wording would have brought Ireland closer to full compliance with the Convention on the Rights of the Child, it is clear that the proposed wording will advance children’s rights in Ireland. If passed, the wording will give express recognition to children’s rights in the Irish Constitution. This, by any analysis, will be an important achievement and in the life of this country, which has treated children so badly, an historic day.

It is a good time therefore to reflect on the merits of a rights approach to children’s issues. Why is it that ‘we’ in the children’s sector talk about children’s rights rather than talking about the welfare of children or the interests of children. The answer to this question is multi-layered: it is to be found in international human rights law which recognises unequivocally and in the most highly ratified UN instrument – the Convention on the Rights of the Child – that children are autonomous rights holders, entitled to enjoy their rights even if they cannot always exercise them on their own behalf. A related issue is that uniquely in human rights law perhaps, international children’s rights standards are bound up in the international consensus that exists around children’s issues. Thus, the Preamble to the CRC recognises the child’s right to grow up in a family environment, because the evidence and indeed common sense tell us that this is where children fare best. Similarly, the CRC recognises that children have a right to know and have contact with family members, again because research and experience tell us that this is what is important for children to develop and indeed to thrive. The CRC recognises the importance for children with disabilities to develop the capacity for independent living, to a full and decent life, again not just because this is the right of the child but because it is clear that this is what all children need. In the same way, the Convention recognises that children in conflict with the law have a right to be treated in a manner which takes into account the child’s age and the desirability of promoting the child’s reintegration into society. This is important because this is what helps children who break the law to make good, not the punitive and penal policies that perpetuate offending.

So, according to the Convention, children have these rights. But beyond this, research and experience tell us that this coincides in a very real way with children’s needs – in other words, their welfare and their development depends on approaches that are taken to promote their family life, their right to know their origins, their right to independent living, and to enabling them to play a constructive role in society. In this way, children’s rights as encapsulated by the CRC are entirely consistent with the enormous body of knowledge, research and evidence that tells us what children need. The language of rights thus reflects children’s needs and in addition to being part of binding international human rights law, which places concrete obligations on states, they are an important advocacy tool and a means to communicate what children are entitled to and deserve. Distinct from the approach that focuses, in a paternalistic way, on welfare and on interests as determined by an adult perspective, a children’s rights approach is child-centred and focused. It highlights what the child him or herself has to gain, rather than what the adults think is best.

But that is only half the story. Of course, the Convention also tells us that children have a right to be heard and that states have a duty to enable children to express their views and to have those views taken into account in matters that affect them. This element of children’s rights – which is associated with children’s agency or autonomy – is crucial to our understanding of children as rights holders, as active agents and participants in their own lives, as independent entities worthy of dignity and respect. For these are the elements that ultimately underpin children’s rights – a recognition that children are humans too, they are equally entitled to be treated with respect that acknowledges their existence, their voice, their agency and their role in advancing their own lives now, and the lives they will assume in the future.

But in many ways, the Convention on the Rights of the Child ended the debate as to whether children have rights, or are independent rights holders. In 1989, over 23 years ago, the Convention was adopted by the General Assembly of the United Nations and in subsequent years – in 1992 for Ireland – state after state became a party to what has become the world’s most ratified international human rights instrument. For many, decades on, the debate as to whether children have rights, independent of those who care for them, is moot. The question has long since moved on to how to enforce those rights, how to maximise their potential, how to secure their effective implementation for children in their daily lives. The key question is, of course, how can we do this?

In responding to this question I am reminded of the words that Eleanor Roosevelt used, when she was asked, following the adoption of the Universal Declaration of Human Rights, as to how this was to be made a reality. She said:

“Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.”

In the international community, focus has shifted onto questions of the application of children’s rights, and onto the challenges of enforcement and implementation. In Europe, both the Council of Europe and the European Commission are spearheading initiatives to promote the implementation of the European Guidelines on Child Friendly Justice, adopted by the Council of Europe Committee of Ministers in 2010. These highlight the significance of delivering justiciable rights for children and the need to ensure that children enjoy access to justice without procedural barriers, including access to independent mechanisms that provide effective and independent means of resolving complaints. They also highlight the importance of ensuring that child-appropriate measures are taken to enable children to participate in proceedings about their lives relating to the matters of education, family life, immigration and healthcare for example.

This is also where the Ombudsman for Children has a crucial role. The Ombudsman for Children has a wide ranging role under the Ombudsman for Children Act 2002 under which I have a duty to promote the rights and welfare of children. In fulfillment of this function, section 7 of the Act spells out that my duties include:

• Advise any Minister on policy relating to children;
• Encourage public bodies etc to develop policies, practices and procedures designed to promote the welfare and rights of children;
• Collect and disseminate information on matters relating to the rights and welfare of children;
• Promote awareness among members of the public including children of matters relating to the rights and welfare of children and how those rights can be enforced,
• Highlight issues relating to the rights and welfare of children that are of concern to children,
• Monitor and review the operation of legislation concerning the rights and welfare of children.

These are very important functions that serve to remind law and policy makers of their obligations to implement children’s rights at a national as well as a local level; they also seek to raise awareness and to highlight among the public the key challenges facing children’s rights in Ireland. They are global in their significance – addressing the rights of all children – but their effects will, I hope, be borne by the individual children whose lives these decisions affect.

But it is in the fulfilment of its investigation and complaints function that the Office has most effect in bringing children’s rights home to what Eleanor Roosevelt’s called ‘small places, close to home’. Under section 8, the Office can carry out an investigation into action taken by or on behalf of a public body where it appears to the Ombudsman that it has been taken inter alia without proper authority, on irrelevant grounds, improperly discriminatory or contrary to fair and sound administration. As was reported this week in our Annual Report for 2011, complaints to the Office of the Ombudsman for Children rose by 22% in 2011. Complaints are wide ranging but can be grouped according to the categories of education (47%, an increase from 38%); health 32% (a fall from 37%), the justice sector (5%) and housing and planning 4%. In addition to the high number of complaints, it is important to note the seriousness of these complaints for children and their carers. This is perhaps best illustrated by the cases involving children born through surrogacy who endure a debilitating lack of certainty about their identity and their future lives, and the circumstances of children in long term care without identifying information. But, although these are perhaps extreme cases, the complaints raised by many, many children raise serious children’s rights concerns. They address their ability to access educational supports including school transport, to enjoy family life and to access services designed to protect them from harm. Interestingly, the 2011 data shows us that the most likely advocate for children – in terms of the professional who brought most complaints to our office on children’s behalf – is the school principal. This is an indication of how important schools are to children and their families and how wide the network is of those who are prepared to act and advocate on behalf of children.

As I explained during the launch of our Annual Report last week, I am often compelled to report on resistance my Office has encountered in the course of our investigations. While we encountered pockets of resistance, in 2011 in particular I noticed a significant shift in how public bodies responded to my recommendations at all levels. In the course of investigations we regularly hear about insufficient and limited resources, but this year a number of public bodies were willing and open to making the systemic changes that I have recommended. These are very simply that public bodies consider the child when they are making decisions that can sometimes have a profound impact on that child’s life.

Much of the positive change in public bodies is related to the significant change in personnel. While I commend the individuals in question, my concern is that in Ireland we have an over reliance on individual leadership style rather than robust policies and practice. In order to really see a culture shift, that takes the child into consideration, we must ensure that policies and practice remain consistent irrespective of who is implementing them. These are important considerations for anyone concerned with ensuring that policy and administrative decision-making is based on sound and fair principles.

From a children’s rights perspective, however, additional concerns arise. In 2011, we published a children’s rights audit by Prof Ursula Kilkelly of UCC of ten of the investigations conducted by my Office. These concerned complaints about matters of school transport, special needs provision in schools, housing and child protection and special care provision. When measured against children’s rights standards in the Convention on the Rights of the Child and the European Convention on Human Rights, the following themes emerged:

The best interests of the child were frequently not a factor in decisions that affected children deeply – built into this was a serious lack of awareness about the impact of administrative decision-making on the rights and lives of children and their families and a failure to give adequate consideration to what was in the best interests of the individual child affected by the action taken.

Children were not listened to or involved sufficiently in decisions made about them – few of the decision-makers had taken the time to meet with the children concerned and there was little evidence that the views of children had been taken into account in decisions that affected them. In this sense, children were frequently missing from the decision-making process and there was a general lack of empathy and sensitivity to the seriousness of the matter from the child’s perspective;

Legal obligations – under the ECHR Act 2003 – to have regard to the duty to respect family life, to observe certain procedural rights and to proceed without delay in children’s matters – were not met. Instead, there was little awareness of the damage done by the passage of time and the failure to act in a timely manner – so crucial to decision-making in children’s cases – was evident as a serious problem.

So, in terms of bringing rights home to those places that matter, as Eleanor Roosevelt explained, Ireland has a long way to go. But what is positive is that through the operation of the complaints function of my office, many children now have an effective remedy accessible to them and their carers when their rights have been infringed by a public body. This is important for the children themselves, not least in the absence of other remedies. But is it is also hugely important, as the publicity around these complaints shows, because it is an effective way to raise awareness about the importance of children’s rights in decision-making; it is only this that will develop a culture of respect for the rights of the child.

• 15 October 2012
• Type: Speech