Commissioner for children and Young People (Jersey) Law 201-
Ministerial Report
Structure of the report
Part 1 – Introduction
Section A – Background and context
Section B – Development of the Law
Part 2 – The Law
Section C – Establishment, appointment, and removal of the Children’s Commissioner
Section D – Remit and principal aim of the Children’s Commissioner
Section E – Functions and powers of the Children’s Commissioner
Section F – Accountability of the Children’s Commissioner
Part 3 - Financial and manpower implications
Part 4 – Human Rights Statement
Part 1 – Introduction
Section A: Background and context
What is a Children’s Commissioner?
- A children’s commissioner is a form of independent human rights organisation with a mandate to monitor, promote and protect the human rights of children and young people. A children’s commissioner has a key public role in representing children’s interests and promoting regard for children’s rights, also has a role to assist government and other entities in identifying where more can be done for children. A children’s commissioner for Jersey will be the first dedicated and independent commissioner in Jersey charged with promoting and overseeing compliance with international human rights conventions applicable to Jersey.
Why do we need a Children’s Commissioner?
- In spring 2017 members of the Children and Vulnerable Adults (CAVA) Ministerial Group (subsequently the Community Policy Group) considered the potential establishment, role and remit of a Children’s Commissioner for Jersey. Ministers endorsed the recommended establishment of a full-time post of Children’s Commissioner, subject to that role being aligned with any relevant findings made by the Independent Jersey Care Inquiry (“IJCI”).
- In July 2017 the IJCI published its recommendations and identified the establishment of a Children’s Commissioner as a key recommendation. The States then agreed “Jersey Care Inquiry Report: Implementation of Recommendations” (P.108/2017), in which they agreed that the Children’s Commissioner should be appointed prior to the legislation for that office being in place and that the legislation should be brought forward in conjunction with the Children’s Commissioner.
- Following this the Treasury Minister, at the request of the Council of Ministers, released central contingency funding to facilitate the appointment of a Children’s Commissioner for Jersey. The first Children’s Commissioner for Jersey, Deborah McMillan, was appointed in December 2017, operating in shadow form initially while legislation to underpin the role was developed.
Section B: Development of the Law
- Building on the recommendations of the IJCI, the policy and legislative development of the Law has been informed by a number of international, national and local sources:
International Sources
- The United Nations Convention on the Rights of the Child (the “UNCRC”) is a human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. It requires State Parties to promote and protect children’s rights. Jersey ratified the UNCRC in 2014 and, in doing so, committed to be bound by its provisions. The Committee on the Rights of the Child (the “UN Committee”), which monitors the obligations of State Parties to the UNCRC and provides guidance on the implementation of the UNCRC, has commented that the establishment of a children’s commissioner or equivalent is part of the general obligations of a State Party in implementing the UNCRC.
- The IJCI recommended that the establishment of a children’s commissioner for Jersey should be “…enshrined in States’ legislation in a manner consistent with the UN Principles Relating to the Status of National Institutions (the Paris Principles).” The Paris Principles are an international set of standards for the establishment of national human rights institutions (NHRI), endorsed by the United Nations General Assembly. They set out six essential characteristics and features for these institutions:
- independence guaranteed by statute or constitution;
- autonomy from government;
- pluralism;
- a broad mandate based on human rights standards;
- adequate resources;
- adequate powers of investigation.
- United Nations Committee on the Rights of the Child General Comment No. 2 (2002): The Role of Independent National Human Rights Institutions in the Promotion and Protection of the Rights of the Child (“General Comment No.2”). The Committee on the Rights of the Child (“the Committee”) views NHRIs as an important mechanism to promote and ensure the implementation of the Convention and considers the establishment of such bodies to fall within the commitment made by States parties upon ratification to ensure the implementation of the Convention and advance the universal realization of children’s rights. The Committee issued General Comment No.2 to support States parties in this regard by elaborating the essential elements of such institutions and the activities which should be carried out by them.
- The European Network of Ombudspersons for Children (“ENOC”) is an association of independent children’s rights institutions whose mandate is to facilitate the promotion and protection of the rights of children, as formulated in the UNCRC. ENOC has developed a set of standards (Standards for Independent Human Rights Institutions for Children 2001) for NHRIs for children, based on the Paris Principles.
- It should be noted that the ENOC standards and General Comment No.2 are considered, within academic and international circles, to be an updated interpretation of the Paris Principles, from a child focused perspective.
National Sources
- Children’s commissioners have been established in law across the United Kingdom (2001: Wales, 2005: Scotland and England, 2008: Northern Ireland). The remit of the role of these commissioners varies in each jurisdiction however there are clear common features:
- a duty to promote rights, and
- powers to investigate complaints or other matters affecting children’s rights.
- Legislation relating to UK commissioners has informed the development of the Law but equally important has been a number of reviews of UK commissioners, with each review identifying areas where varying degrees of legislative reform are needed, for example to strengthen the commissioner’s independence and investigatory powers.
Local sources
- Jersey has a number of sector specific commissions, commissioners and regulatory authorities, aspects of whose legislation has informed the aspects of the Law (for example, the Health and Social Care Commission, the Charities Commissioner, the Information Commissioner and the Commissioner for Standards).
Policy objective of the Law
- The primary objective of the Law is to bring forward legislation establishing a Children’s Commissioner for Jersey, demonstrating that Jersey has not only responded to IJCI recommendations, reflected international best practice and lessons learned from other jurisdictions, but has also established an independent Children’s Commissioner who can act as a champion for the rights of children and young people in Jersey.
Part 2 - The Law
Section C – Establishment, appointment, and removal of the Children’s Commissioner
- The Law will make provision for the establishment of the office of the Children’s Commissioner, the status of that office and procedural aspects for the appointment, termination of appointment and removal from office.
Establishment of the Office of the Office of the Children’s Commissioner
- Article 3 of the Law establishes the office of the Commissioner for Children and Young People and includes a number of provisions aimed at ensuring the independence of the Children’s Commissioner. In doing so, the Law fulfils recommendations made by the IJCI and reflects international standards for children’s commissioners emphasised by the Paris Principles, General Comment No.2, and the ENOC standards.
- The independence of a Children’s Commissioner from government has been described by UNICEF as a “defining feature” of the success of the role, giving the role its “main strength and source of legitimacy and authority.” Important features of the Children’s Commissioner’s independence provided for in the Law are:
- Exercise of the Children’s Commissioner’s functions must not be subject to the direction or control of any administration of the States, the Chief Executive Officer, a Minister, or the States. (Schedule, paragraph 2 (1))
- An obligation on the States to respect, uphold and defend the independence of the Children’s Commissioner. (Schedule, paragraph 2 (2))
Legal Status of the Office of the Children’s Commissioner
- Schedule, paragraph 1 of the Law provides that the person holding the office of Commissioner for Children and Young People is, by that name, a corporation sole.
- ‘Corporation sole’ is a form of legal personality distinct from the person holding the office in question, providing that corporation with legal capacity. It enables the office to, for example, hold property and enter contracts, and ensures that obligations and liabilities, both statutory and contractual, continue notwithstanding any change in office holder. Ascribing corporation sole status to commissioners or commissions is a typical feature of such roles, for example the Jersey Charity Commissioner. A corporation sole status is also recognised as an important feature of the independence of the Children’s Commissioner’s role, something specifically recognised in reviews of commissioner roles in England and Wales.
Appointment of the Children’s Commissioner
- The appointment process for the Children’s Commissioner is critical to the independence of the role. There is no standard approach to the appointment of commissioners in the UK or globally, although appointment of a commissioner or equivalent by the executive is common practice in the UK. This approach, however, is recognised as having a negative impact on the perception of the independence of a children’s commissioner and arguably contradictory to aspects of a children’s commissioner’s role which seeks to monitor government’s respect for children’s rights. Indeed, the IJCI stated that “…in the interests of independence, any such appointment in Jersey should be made by the States Assembly rather than by Ministers.”
- As such, the Schedule to the Law includes provisions setting out a process for the appointment of the Children’s Commissioner by the States Assembly, in a manner similar to that of the Comptroller and Auditor General, as a means of ensuring the independence of the Children’s Commissioner’s position and accountability to the States Assembly.
- In essence, the Law will require the Chief Minister and the President of the Chairmen’s Committee to jointly recommend to the Assembly, a candidate for the role of Children’s Commissioner. The recommendation will then be debated, in-camera, by the Assembly.
Term of office
- The Law provides, in the Schedule, paragraph 4, that the Children’s Commissioner will be appointed for a single, fixed, non-renewable term of office of eight years. This term reflects the maximum single term of the Scottish Commissioner and is within the upper limit of nine years recommended in Jersey Appointments Commission guidance.
- Reviews of children’s commissioner roles in the UK consider a longer term of appointment offers greater stability to the office, facilitates a strategic approach to the role, and ensures that independence is not influenced by the seeking of another term of office. In the UK, commissioners are appointed for fixed terms, for example six years in England and six years in Wales.
Disqualification from appointment to Children’s Commissioner
- Paragraph 5 of the Schedule provides a number of grounds for disqualification from appointment as Children’s Commissioner. The intention of these grounds is to protect the independence and integrity of the office of the Children’s Commissioner.
- The grounds for disqualification will provide that a person is not eligible to hold the office of Children’s Commissioner if he or she:
- Has been, is, or becomes a member of the States;
- Has been, or is a States’ employee within the meaning of Article 2 of the Employment of the States of Jersey Employees (Jersey) Law 2005 (the 2005 Law”);
- Has been or is the holder of an office set out in schedule 1 to, the 2005 Law.
- Given the extent of the proposed disqualifications it is unlikely that recruitment to the post will be from Jersey in the future. This is to ensure trust and confidence in the office of the Children’s Commissioner.
Termination of office as Children’s Commissioner
- The Law provides, at paragraph 6 of the Schedule, the circumstances in which a person appointed to the office of Children’s Commissioner may cease to hold office. The grounds for cessation are:
- Resignation;
- Termination of appointment (see below); or
- Expiry of term of office.
- The grounds on which the Children’s Commissioner can be removed from post will, as is common with other commission and commissioner posts, relate to misconduct, criminal conviction or incapacity to perform duties. The grounds for termination of appointment, as set out in paragraph 6(5) of the Schedule, are:
- The officeholder becomes ineligible to hold office as Children’s Commissioner (per the disqualification grounds set out above);
- Incapacitated by physical or mental illness;
- Failure to discharge functions without reasonable excuse;
- Behaviour incompatible with holding the office of Children’s Commissioner or is otherwise unable or unfit to discharge the functions of Children’s Commissioner (e.g. behaviour incompatible with the Nolan Principles).
- The grounds and process for termination of appointment as Children’s Commissioner are considered to be a further important feature bolstering the independence of the office. As such, the process for dismissal will seek to ensure that the Children’s Commissioner cannot be removed as a result of unwarranted or undue pressures and influences.
- For consistency, the Law provides for a process of termination of appointment which reflects the corresponding appointment process, whereby the States Assembly may remove the Children’s Commissioner on a proposition signed by the Chief Minister and the president of the Chairman’s Committee.
Resources
- It is essential that the Children’s Commissioner has sufficient and sustainable financial, staffing and other resources, and financial autonomy, to carry out the mandate of the office. The link between independence and infrastructure, in particular funding, is emphasised by the Paris Principles, UN Committee General Comment No.2 and ENOC standards. In addition, many of the UN Committee’s concluding observations since the UNCRC came into force highlight a lack of adequate funding for NHRIs, impeding the effective functioning of the institution:
“While the Committee acknowledges that this is a very sensitive issue and that State parties function with varying levels of economic resources, the Committee believes that it is the duty of States to make reasonable financial provision for the operation of national human rights institutions in light of Article 4 of the Convention. The mandate and powers of national institutions may be meaningless, or the exercise of their powers limited, if the national institution does not have the means to operate effectively to discharge its powers.”
- To address these standards and concerns, the Law provides, at paragraph 9 of the Schedule, that the States must ensure that the Children’s Commissioner is provided with such financial resources, administrative resources, and other support for the proper and effective discharge of the Children’s Commissioner’s functions under the Law. Accountability and governance of the Children’s Commissioner, including the use of public funds, is addressed under Section F of this report.
Section D – Remit and principal aim of the Children’s Commissioner
Remit
- Part 1 of the Law defines the remit of the Children’s Commissioner by reference to the:
- Age and location of children and young people to whom the Children’s Commissioner’s principal aim and functions relate; and
- The entities and persons in relation to whom the Children’s Commissioner may pursue his/her functions or exercise his/her powers.
Age
- In the main, the Children’s Commissioner’s functions will apply to children and young people under the age of 18 years. However, the Commissioner’s remit will also apply to care experienced young people, young people with additional needs, and young offenders up to the age of 25 to reflect government policy as set out in the forthcoming Children’s Plan. This seeks to recognise the vulnerability of and need for a supported transition into adulthood for young people in these circumstances. In England and Wales, those who are care experienced, and those with special educational needs and/or a disability, are covered by children’s (education, health and care) legislation until they are 25 years old.
Location
- The functions and powers of the Children’s Commissioner cover all children and young people in Jersey, in terms of age and circumstance as outlined above in paragraph 31, whether residing in Jersey or in Jersey on a temporary or transitory basis.
- In addition, the Children’s Commissioner’s functions will apply in relation to those children who are placed in care off-island or transferred off-island under the operation of Jersey laws such as Mental Health legislation and Children’s legislation. The intention is not to seek extra-territorial powers in this regard but rather to ensure that the Children’s Commissioner has the power to receive complaints regarding, and raise, the issues faced by children placed in off-island arrangements by the States and hold them to account in respect of those arrangements.
Example 1 – Remit for children placed off-island A child from Jersey placed in care in the UK would be able to contact the Children’s Commissioner in Jersey to raise concerns or complain about any aspect of their care (which could include their care in the UK). The Children’s Commissioner cannot directly contact the UK care provider about these concerns but can raise them with the States of Jersey as the child’s corporate parent. The Children’s Commissioner may also work with children’s commissioners in the UK to highlight concerns raised by children from Jersey about the provision of care outside Jersey. The Children’s Commissioner might do this where the issues raised are relevant to other children in those care settings and, therefore, within the remit of the Children’s Commissioner of the jurisdiction to address. |
Persons, bodies or authorities in respect of whom functions and powers may be exercised
- The Children’s Commissioner’s aims, functions and powers extend not only to public authorities (E.g. the States, Ministers and government departments) but also to the non-governmental entities and persons (such as voluntary and charitable organizations, and private entities). This reflects the fact that children’s rights may be affected by, and can be progressed by, entities and persons operating outside of government. It also reflects General Comment No.2, ENOC standards and recommendations made for reform of the Northern Ireland Order in relation to the Northern Ireland children’s commissioner’s remit.
- The Law does not permit the Children’s Commissioner to exercise his/her powers of entry into private dwellings e.g. family homes. However, the Children’s Commissioner, in the exercise of his/her statutory functions, will seek to promote the rights of children, which may involve him/her providing advice or guidance as to matters which come within the sphere of family and private life, for example advocating for the removal of the defence of reasonable corporal punishment in the Children (Jersey) Law 2002.
Primary function
- Under the Paris Principles, NHRIs are required to protect and promote human rights. The establishment of NHRIs with oversight of human rights conventions is seen as important for the implementation of such conventions. As such, Article 4 of the Law, states that the primary function of the Children’s Commissioner is the promotion and protection of the rights of children and young people. This mirrors the primary aim or function of all children’s commissioners in the UK.
Duties ancillary to primary function
- The Law places two overarching duties on the Children’s Commissioner in the pursuit and exercise of his/her primary function:
Involving Children and Young People
- Article 6 of the Law requires the Children’s Commissioner to take reasonable steps to involve children and young people in the work of the Children’s Commissioner. This will involve, among other things, the Children’s Commissioner taking steps to ensure that children and young people are made aware of the role of the Children’s Commissioner, how to communicate with the Children’s Commissioner and how the Children’s Commissioner may respond to any issues which they raise. Moreover, the Children’s Commissioner is required to, and must encourage others to, consult children and young people in their work.
Regard to the UNCRC and other Human Rights Instruments
- The UNCRC and those Optional Protocols extended to Jersey will be the main legal instrument to constitute the basis of the Commissioner’s work. However, as the UNCRC only applies to children (i.e. up to 18 years of age), the Commissioner may, where appropriate, also draw on other human rights treaties extended to Jersey in pursuing his/her functions in relation to persons over 18 years of age that fall within the Children’s Commissioner’s remit as outlined above.
- As such, Article 7 of the Law requires the Children’s Commissioner to:
a) Regard, and encourage others to regard, the rights of children and young people as a primary consideration; and
b) Have regard to, and encourage others to have regard to, the views of children and young people on all matters affecting them, due allowance being made for age and maturity.
Section E – Functions and powers of the Children’s Commissioner
General Functions
- Article 5 of the Law outlines a non-exhaustive list of functions that the Children’s Commissioner may undertake or perform in pursuit of the primary function. These functions seek to reflect activities of a NHRI as recommended by UN Committee General Comment No.2. These are:
a) Keep under review the adequacy and effectiveness of law, policy and practice relating to the rights of children and young people with a view to assessing the adequacy and effectiveness of such law, policy and practice.
b) Keep under review the adequacy and effectiveness of services provided for children and young people by relevant authorities.
Example 2 re: functions (a) and (b) above The Children’s Commissioner may review legislation or services provided in relation to children and young people in Jersey, such as adoption, mental health provision and employment of children and young people. This could entail conducting a review of the legislation and arrangements currently in place and provide advice or recommendations for improvements to better realise the rights of children and young people in those circumstances. Equally where the government brings forward proposed changes to legislation or the provision of the service, the Children’s Commissioner may provide advice as part of the consultation process or as part of a working group, where invited. |
c) Bring any matter relating to the rights, views and interests of children and young people to the attention of the States Assembly or any relevant authority.
Example 3 re: function (c) above Where the Children’s Commissioner becomes aware of new developments with regard to the progression of children’s rights (E.g. guidance, advice, best practice from international bodies or other jurisdictions), he/she may share this with government officials or Ministers to help assist in their ongoing implementation and monitoring of rights treaties. The Commissioner may also share information about such developments with relevant scrutiny panels in order to inform a review or inquiry being undertaken. |
d) Promote awareness and understanding of the rights of children and young people.
e) Provide human rights education for relevant authorities, organisations and institutions that focus on children.
Example 4 re: functions (d) and (e) above The Children’s Commissioner may provide training and resources, or arrange awareness events or initiatives, relating to children’s rights, for the public or people working with, or for children, such as health care professionals, teachers and police officers. |
f) Provide advice and recommendations on the rights, views and interests of children and young people.
g) Promote harmonisation of legislation and policy with the UNCRC.
h) Monitor the implementation in Jersey of the United Nations Convention on the Rights of the Child.
Example 5 re: functions (g) and (h) above The Children’s Commissioner will, naturally, play an important role in the promotion of implementation measures relating to the UNCRC. This will take many forms, both in terms of working with government to inform and assist, where appropriate, the pursuit of those measures. For example, the Children’s Commissioner may, at the invitation of government, offer or coordinate the provision of expert advice on implementation measures or critical analysis of legislation, with the aim of supporting government in the transformation of legislation from a UNCRC perspective. |
i) Report on the government’s implementation and monitoring of children’s rights.
Example 6 re: function (i) above The Commissioner would prepare an alternative report to the UN Committee, as part of its periodic reporting process. The Commissioner would report on the States’ response to the UN Committee’s concluding observations from the previous periodic review and also highlight any other issues in progress the States has made in implementing the convention and the States’ own monitoring arrangements it has in place to support implementation. |
j) Look into or investigate any matter relating to the rights or interests of children and young people (NB: in practice this would include investigating violations of children’s rights.) (see paragraphs 49-63 below)
k) Bring, intervene in, or assist in relation to, legal proceedings or complaints against relevant authorities (see paragraphs 67-77 below)
l) Publish a report on any matter considered or investigated by the Children’s Commissioner.
Power to access premises
- The Paris Principles state that a NHRI should be able to, “Hear any person and obtain any information and any documents necessary for assessing situations falling within its competence.” In order to satisfy this requirement, the Law enables the Children’s Commissioner, or a person authorised by him/her, with the power to enter premises, other than a private dwelling, where children are living, detained, or otherwise cared for, or receiving services or treatment, in order to interview any child or to observe standards of care, treatment, services or provision for children in those places. The ability to enter premise and interview children and young people or observe standards can only be used for the purposes of the Children’s Commissioner’s principal aim and general functions.
Example 7 – Power to access premises The Commissioner may enter schools or regulated institutions where children are receiving care in order to speak to children there. The Children’s Commissioner would, where appropriate, notify the managers or principals of that place before visiting, but if and where access to premises is refused, for whatever reason, the Children’s Commissioner could rely on his/her statutory power to gain entry. The English Children’s Commissioner has used this power to visit Young Offender’s Institutions, to follow up on concerns raised in reports by the prison inspectorate, to review whether the recommended changes are being implemented, by speaking with children and young people in those institutions. |
- For the avoidance of doubt, the power to enter premises does not extend to private dwellings but applies in respect of any part of premises which is not a private dwelling.
Duty to provide information to the Children’s Commissioner
- In accordance with the Paris Principle requirement that NHRIs should be able to “hear any person and obtain any information and any documents necessary for assessing situations falling within its competence”, the Children’s Commissioner has the ability to request the supply of information from relevant authorities for the purposes of the Children’s Commissioner’s functions under Article 4 and 5 of the draft Law.
- Article 8 of the Law places an obligation on relevant authorities to supply information to the Children’s Commissioner. The obligation to provide information will be qualified in a number of cases, in essence where a relevant authority would also be able to refuse a disclosure of information under the Freedom of Information (Jersey) Law 2011 or a rule of law, or where another enactment expressly provides that they are not required to comply with a request for information by the Children’s Commissioner.
- Where a relevant authority determines that it is not required to disclose information to the Commissioner because one of the FOIJL exemptions applied in its case, the Commissioner is able to appeal to the Information Commissioner (and onwards to the Royal Court).
Example 8 – Information gathering The Children’s Commissioner may ask relevant States departments for data about the numbers of children in different health and care settings on the island in order to inform the development of a more detailed review. The English Commissioner used data requested from the NHS about children in different types of care settings to inform the development of a Vulnerability Index. |
- The Children’s Commissioner will not be able to demand or receive information which authorities are not permitted to disclose under other enactments.
- The Children’s Commissioner will also be able to receive information, relevant to his/her functions, from other persons or authorities, even when he/she has not specifically requested it.
Investigations
- The ability for a children’s commissioner to receive and investigate complaints is an important means of empowering children and young people to exercise their rights, and a further mechanism by which government and institutions can be held to account. Unicef highlight the importance of receiving and investigating complaints as a means of providing a commissioner with direct insight into the lives of children and young people and the challenges they face and can be a valuable source for directing the policy work of the commissioner. The ability to handle complaints, particularly in individual cases, is recommended and emphasised by the UN Committee in General Comment No 2. All UK Commissioners are empowered to receive complaints and investigate individual cases.
- Part 3 of the Law (Articles 10-15) enable the Children’s Commissioner to conduct investigations in relation to matters relating to the rights of children and young people in Jersey, either on receipt of a complaint from or on behalf of children and young people or of his/her volition. The ability for the Children’s Commissioner to receive complaints from children is an essential characteristic of children’s commissioners, or equivalent, recognised by the UN General Committee and the Paris Principles.
- Investigations are a formal tool that can be utilised by the Commissioner where there are serious concerns about infringements of children’s rights and the intention is that the investigation function is used as a mechanism of last resort. As such, the law contains a number of qualifications pertaining the use of this function, these require the Commissioner to:
a) Be satisfied that the issue to be investigated must raise an issue of particular significance to children and young people generally, or particular groups of children and young people
b) Consult the advisory panel before commencing an investigation
c) Not conduct an investigation into a matter subject of legal proceedings before a court or tribunal
d) Make every reasonable effort resolve the matter without investigation, if appropriate.
Investigation Process
- The Law sets out certain procedural requirements and powers which apply where the Children’s Commissioner determines that an investigation is required -
- The Children’s Commissioner must produce terms of reference for the investigation and take appropriate steps to notify the person or body being investigated of the fact that an investigation is being commenced and then inform that person of the terms of reference.
- Where the Children’s Commissioner believes that the outcome of an investigation may adversely affect a relevant authority the Children’s Commissioner must provide that authority with an opportunity to give evidence, cross-examine that evidence.
- Where the Children’s Commissioner conducts an investigation of a general or thematic nature, Article 11(8) of the Law requires those investigations to be held in public unless the Commissioner is satisfied that there are grounds for taking evidence in private. However, it is considered essential for the protection of the privacy of individual children and young people that such hearings are not conducted in public. As such, Article 11(7) of the Law requires any investigation concerning a specific, individual child or young person to be conducted in private.
Offences relating to obstruction of provision of evidence
- Article 12(3) of the Law provides that, where the Commissioner requires a person to give evidence, or produce a document under Article 12(1), the Commissioner must give that person a notice in writing. Article 13 contains offence and penalty provisions where a person provided with such notice, among other things, refuses to attend a hearing or fails to answer questions or produce documents.
- Obstruction of an investigatory or regulatory body, without reasonable excuse, can be a serious matter given the role of such bodies in holding others to account. The policy reasons for doing so are clear: a failure to cooperate with such bodies, without a reasonable excuse, will likely constitute a conscious or malicious attempt to frustrate the proper regulation of services, or to avoid accountability. Children’s commissioners have a mandate to promote and protect children’s rights and perform an essential role in ensuring practices which are incompatible with child rights are challenged. In this role, it is important that the willing obstruction of investigations conducted by children’s commissioners is regarded with the same severity as the obstruction of other regulators or inspectors.
- Provisions setting out an offence of obstructing inspections or investigations, and providing criminal penalties for doing so, are common in Jersey law. For example, there is a criminal offence of obstructing or non-compliance with an inspection by the Health and Social Care Commission and there is a criminal offence provision for providing false or misleading information to the Data Protection Authority, each with a varying level of penalty.
- All UK children’s commissioners have powers of investigation or examination to some degree, and a comparative precedent for criminal offence provision for obstruction of a children’s commissioner investigation can be found in the Commissioner for Children and Young People (Scotland) Act 2003. In Northern Ireland and Wales, obstructions of an investigation by the children’s commissioner can be certified as contempt of court and enforced accordingly. The Equality and Human Rights Commission in the UK can also undertake inquiries into matters relating to human rights and, if a person fails to comply with requests for evidence by that Commissioner, they may be charged with a criminal offence.
- Where a person is charged with obstructing an investigation by the Children’s Commissioner, they will have a defence if they can show there was a reasonable excuse for the refusal or failure. For completeness, it should also be noted that a person required to provide information under the Law, for example as a result of being issued with a notice by the Children’s Commissioner under Article 12(3), is not obliged under the Law to do so if that person would be entitled to refuse to produce that information before a court (see Article 14 of the draft Law – this is a common provision in Jersey legislation).
Investigation Reporting
- Article 16 of the Law provides that at the conclusion of any investigation, the Children’s Commissioner is required to prepare a report as to the findings/result of the investigation. The Children’s Commissioner is also required to publish an investigation report unless the Commissioner reasonably considers it to be inappropriate to do so in the circumstances. An example of this might be where, in the case of an individual child or young person, it would be possible from the report to identify them despite the report being anonymized, as required in Article 24(2) to (4), due to the facts of the investigation referenced in the report being so specific in nature.
- Prior to a report being finalised, where it is reasonable and practicable to do so, parties named in the report should be given a draft of the report and an opportunity to make representations on it to the Children’s Commissioner, within such timeframes as the Children’s Commissioner specifies, which the Children’s Commissioner may take into account in preparing the report.
- An investigatory report issued by the Children’s Commissioner may contain recommendations to a party named in the report which the Children’s Commissioner considers necessary in order to address matters arising from the investigation concerning the rights of children and young persons. The Law requires the Children’s Commissioner, so far as reasonable and practicable having regard to the subject matter, to ensure that any report does not name or identify any persons referred to in it.
- Where a report includes recommendations, the report may also include a requirement on the party so named, to provide a response to those recommendations. The Children’s Commissioner may also impose a requirement to respond within a certain timeframe. The party named in the report must then respond setting out what they have done, or propose to do, or those recommendations in relation to which it is proposed to do nothing (and an explanation for that).
- The Jersey Commissioner may publish any statement provided in response to a requirement to respond and, where he/she considers it appropriate, publicise any failure to comply with a requirement to respond.
- In addition to the complainant (where relevant) and the person(s) named in the report, the Children’s Commissioner may also send the report to any other appropriate person or body (e.g. a relevant Minister or Scrutiny Panel). The Law also enables the Children’s Commissioner to present a report on an investigation to the States, through the Greffier of the States.
Example 9 – Investigation process The Children’s Commissioner receives a complaint from a child in a school of systemic bullying, which also evidences a lack of child-friendly procedures through which a child can bring that bullying to the attention of his teachers. The Children’s Commissioner is also aware, through a handful of other complaints by parents of children in that school, and his/her own review of publicly available anti-bullying guidance and codes issued by that school, that the school in question could do more for children in that school to encourage measures to combat bullying. After contacting the school and discussing the gravity of the issue, but not being satisfied that the school is committed to tackling the issue, the Children’s Commissioner, having consulted with the Adult Advisory Panel, decides to conduct an investigation utilising his/her powers under the Law. The Children’s Commissioner draws up terms of reference for the investigation and brings notice of the investigation to the attention of the people likely to be affected by it. That investigation process involves hearing from teachers and staff at the school, and provides an opportunity for school governors, or equivalent, to explain the school’s processes and record in relation to bullying. The Children’s Commissioner prepares a report, as is required under the Law, which is issued to the school (which he/she may also publish), in which he/she makes recommendations to the school as to how it can: - improve processes through which children can bring bullying issues to the attention of children;
- implement measures which will appropriately recognise the right of children to have their voice heard in relation to such matters.
The report requires the school to respond within three months as to what it proposes to do to address the issues raised. The school responds within that timeframe by proposing that it will improve its anti-bullying guidance and codes, making them more visible and child-friendly, and improve children’s access to school counselling. The report also included a specific recommendation to roll out comprehensive training to teachers on anti-bullying measures and methods. The school’s response indicates that it cannot address this recommendation at the current time due to budgetary pressures. The Children’s Commissioner decides not to publish the report and subsequent response to its recommendations. However, copies of the report are sent to the school, any persons named in the report, and the Chief Minister, the president of the chairmen’s committee and the Attorney General as required under the Law. |
Relationships with other bodies
- The Law provides the Children’s Commissioner with an investigatory function which may extend to matters which come within the statutory scope of current, or proposed, commissions and ombudsmen. In particular, the Children’s Commissioner’s investigatory functions may apply to matters which would also be considered or inspected by the Health and Social Care Commission or, in time, the Public Services Ombudsman.
- Experience of commissioners in other jurisdictions, most notably in Northern Ireland, has indicated that statutory limits on the scope of a children’s commissioner’s investigation powers, sometimes require consideration of whether or not another regulator or commission would or would not also look to investigate a matter, has resulted in children’s commissioner’s investigation powers being ineffective or seldom used. Review of other children’s commissioner legislation has recommended that ambiguous or subjective limits on investigation powers are removed in favour of cooperation arrangements at an operative level.
- The Children’s Commissioner may enter into arrangements (for example memoranda of understanding) with other relevant bodies which might be responsible for the receipt of complaints from, or the investigation of matters relating to, children and young people in Jersey. The Welsh children’s commissioner has such arrangements in place with various other supervisory bodies, for example with the Welsh Public Services Ombudsman.
Power to bring, intervene in, or provide assistance in relation to complaints against relevant authorities
- Article 18 of the Law enables the Children’s Commissioner to offer support to children and young people in seeking to resolve complaints against authorities in Jersey, either by commencing complaints on behalf of the child or otherwise assisting the complainant in understanding the process, intervening in an existing complaint, or joining the child in progressing those complaints.
Example 10 – Assisting with complaints A young person who has physical disabilities and attends a mainstream school contacts the Children’s Commissioner as she is concerned that the school is not making reasonable adjustments to accommodate her disabilities. These relate to access to computers and physical education. She also raises concern around communication. The Children’s Commissioner may take detailed instructions from the young person and agree to attend a multi-disciplinary meeting, also attended by representatives from the school and Children’s Services. At the meeting the Children’s Commissioner raises the issues that were concerning the young person and ensures that her voice is heard. |
Power to commence, intervene, and/or assist in legal proceedings
- The power to take legal proceedings to address infringements of children’s rights, provide legal assistance to children in legal proceedings and offer expertise in child rights matters to the courts is, as stated by the UN Committee, a recommended activity for NHRIs with a focus on children.
- Children’s commissioners in the UK have powers, in one form or another, enabling them to assist or take direct action in relation to legal proceedings. In England, the children’s commissioner has, since establishment of the role in 2005, exercised statutory powers to intervene in legal proceedings on a number of occasions. A recent example of this intervention power concerned the case of a deportation of a mother, in which the English Commissioner submitted evidence and oral submissions to the court on matters affecting the human rights, including under the UNCRC, of her dependent children. In another case, the Children’s Commissioner in England intervened in legal proceedings in order to invite the court to consider questions pertinent to the rights of children.
- In other instances, children’s commissioners in the UK have assisted children and their families financially in bringing proceedings with a wider significance for children’s rights and facilitating the provision of legal advice in bringing those proceedings.
- In Northern Ireland, the Children’s Commissioner has the ability to commence legal proceedings. She has exercised such powers to bring judicial review proceedings involving human rights claims against the NI Assembly on issues such as reform of the common law ‘parental punishment’ defence and decisions to bring forward anti-social behaviour order legislation within a shortened consultation timeframe.
- Articles 19 and 20 of the Law provide the Children’s Commissioner with powers to assist, intervene in and commence legal proceedings involving law or practice concerning the rights of children or young persons. The Children’s Commissioner must not seek to bring or intervene in proceedings unless he/she is satisfied that the case raises a question of principle, or there are other special circumstances which make it appropriate for him/her to do so.
- The Law, through a consequential amendment to the Human Rights (Jersey) Law 2000, enables the Children’s Commissioner to bring proceedings against an authority in relation to an act, or a proposed act, that is unlawful by reason of being incompatible with the European Convention on Human Rights, or rely on that Convention in any legal proceedings. Enabling children’s commissioners or other human rights mandated commissions in the UK to bring human rights proceedings is progressively seen as an important power, as evidenced by similar powers being extended to, or proposed, for the Northern Ireland Human Rights Commission and the Equality and Human Rights Commission in the UK.
- Where the Children’s Commissioner intends to exercise the power to commence or intervene in legal proceedings, the Law will require him/her to seek leave of the Court in accordance with Part 16 of the Royal Court Rules. That application would be dealt with in the same way as any other application for leave.
- The Law provides that, where the child or young person applies (either in their own capacity, or through a representative) to the Children’s Commissioner for assistance in relation to proceedings, assistance may be granted if the case raises a question of principle, or there are other special circumstances which make it appropriate for the Commissioner to provide assistance.
Example 11 – Assisting with legal proceedings The Children’s Commissioner might provide assistance in relation to legal proceedings by, among other things, coordinating the provision by a properly qualified legal practitioner of oral or written advice, or representation. It might also mean providing funding to enable a complainant to engage legal representation. The provision of funding in such cases will be subject to strict internal controls and thresholds (as is the practice by other human rights and children commissioners). |
- It is important to note that, in Northern Ireland for example, the Children’s Commissioner may only provide assistance in relation to legal proceedings if satisfied that 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 for some other reason. This requirement has been criticised for inhibiting the Commissioner’s ability to carry out her mandate effectively. The removal of such restrictions labelled a ‘personal issue duplication clause’, is encouraged by independent reviews of commissioner legislation.
- As such, the Law will not seek to impose strict statutory limits to the provision of assistance, other than the need to accord with the grounds mentioned above and any internal, non-statutory operating controls developed by the Children’s Commissioner in time.
Section F – Accountability of the Children’s Commissioner
- A key policy consideration in determining measures of accountability applicable to the Children’s Commissioner has been seeking compliance with international standards for National Human Rights Institutions (“NHRIs”) (ie Paris Principles, UN Committee on the Rights of the Child General Comment No.2, European Network of Ombudspersons for Children Standards). Alongside this there is a requirement to ensure effective governance and accountability to government for responsible use of public funds.
- NHRIs established in accordance with international standards occupy what is recognized as a “unique and…awkward position within the state” as they are independent from government but also accountable to them for their governance. These accountability relationships are always challenging – the government has a legitimate concern in ensuring that NHRIs are accountable for spending public money, but those accountability measures should not interfere in the operational independence of the body, i.e. legitimate financial autonomy.
- The Children’s Commissioner will be subject to several accountability and governance measures, under the Law and operationally.
Statutory arrangements
- The presentation by NHRIs of annual reports to parliament is regarded as the “first layer of accountability, or formal accountability” of these bodies. This should enable parliament to engage in a discussion about the rights issues raised in these reports and review the work of the body in question. This layer of accountability is reflected in the draft Law in that the Children’s Commissioner must present to the States an annual report on the discharge of the Commissioner’s functions during the financial year (see Article 23). The annual report must, among other things, include a review of the functions discharged by the Commissioner in that year and the accounts of the office for that year (see Article 23(2)).
- Accountability to the general public, and in particular children and young people, is considered to be a further layer of accountability. The Children’s Commissioner must publish any reports produced by the Commissioner on the exercise of its functions (Article 21(1)(b)), including reports into investigations (in the case of reports into individual investigations the Commissioner may decide against publication if the Commissioner reasonably considers it inappropriate to do so in the circumstances (see Article 17(4)). Moreover, the Children’s Commissioner is required to take reasonable steps to involve children and young people in the work of the Commissioner (Article 6), and must where appropriate ensure that reports, documents and information are presented in a child-friendly manner (Article 24(5)).
- The Children’s Commissioner is required to appoint an advisory panel (Article 26) and a youth advisory panel (Article 27), whose role it is to provide advice to the Children’s Commissioner on the discharge of its functions and assist in the preparation of the strategic plan and annual reports; the terms of reference and procedures of these panels must be published following consultation with the Chief Minister and the president of the Chairman’s Committee.
- In addition the Children’s Commissioner is also required to appoint an audit and risk advisory panel (“ARAP”) (see Article 27) whose function it is to ensure that arrangements have been put in place to ensure that the office of the Children’s Commissioner is properly managed and governed. The panel will be appointed in a similar manner to the advisory and youth panels under the draft Law in accordance with terms of reference and procedures which are to be published by the Children’s Commissioner having consulted with the Chief Minister and the president of the Chairman’s Committee. In addition, the Chairman of the Public Accounts Committee will also be consulted, this is intended to reflect the specific accountability and governance remit of the ARAP and the need for input from PAC as to the sufficiency of the Commissioner’s proposed procedures. It should be noted that the appointment of such a panel is not required under international standards nor is it a feature of other UK children’s commissioner legislation. It is, however, acknowledged to be an important measure of reassurance as to the accountability of the Children’s Commissioner in the present context.
- The Children’s Commissioner is required to keep proper accounts and records in respect of each financial year (Schedule, paragraph 14). These accounts and records are subject to an auditing and review requirement, and the Law enables review of these arrangements by the Comptroller and Auditor General.
Operational arrangements
- As a publicly funded independent body the Children’s Commissioner will be required to comply with financial directions as to the responsible use of public funds made under the Public Finances (Jersey) Law 2005.
- The Children’s Commissioner will also align its governance conduct to the States of Jersey Code of Conduct, which implements core standards for the conduct of individuals in public life.
Part 3 - Financial and manpower implications
In July 2017, the Treasury Minister allocated £1,855,000 and four FTE from contingency funding to support the resourcing and staffing of the Commissioner’s office until the end of 2019. Future funding will be allocated as part of the Government Plan 2020 - 2023.
Part 4 – Human Rights Statement
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