The Commissioner for Children and Young People (Northern Ireland) Order 2003

2. The Commissioner for Children and Young People (Northern Ireland) Order 2003

3. NICCY’S Principal Aim; Promoting and safeguarding the rights and bestinterests of children and young people

4. How do we define Children and Young People? • Under 18 • OR up to 21 • where they have been a looked after child • or have a disability • The Act also includes • parent/guardian • exceptional circumstances can apply to an adult

5. How wide is NICCY’s remit? • Most public bodies in Northern Ireland fall under NICCY’s remit here are but a few…. • Board of Governors of a grant-aided school • The Northern Ireland Court Service. • The Northern Ireland Policing Board and the Chief Constable of the Police Service of Northern Ireland. • The Probation Board for Northern Ireland. • The Northern Ireland Legal Services Commission. • The Police Ombudsman for Northern Ireland • The Northern Ireland Office • The Commissioner for Complaints • Educational Authorities • Health Authorities

6. Our Duties • Promoting the rights and best interests and an understanding of them • rights are inclusive and relative i.e. no threat to parents • Keeping under review the adequacy of services provided by relevant authorities • Keeping under review the adequacy of the law in respect of children and young people

7. Our Duties • Either reactively or proactively advising the Secretary of State and the Assembly re. issues of rights and best interests • Making sure we are accessible to Children and Young People by seeking their views; clearly communicating with them; providing media they can understand

8. Summary of Powers • Financial Assistance for Research/Legal Cases • Investigation • General Review

9. General Review Powers • Review the operation of any advocacy, complaint, inspection or whistle blowing arrangements of an authority • reasonable grounds to do so • no other body able to do so • Also do so for an individual case • And can assess the impact of any failure to provide such arrangements on the child or young person

10. Provide Assistance • to a child or YP in making a complaint • rights have been infringed • interests adversely affected • can act on behalf of the child or YP • where there is no one else likely to do so • all statutory complaints systems must be followed

11. Investigation of Complaints • Can conduct an investigation into complaint by child or YP • rights infringed • that their interests have been adversely affected • Where satisfied that • question of principle • Outside of statutory complaints system • Where Commissioner chooses not to investigate must provide writing reasons for same

12. However cannot do so … • Where • right of appeal, complaint, reference or review lies before a tribunal • a remedy by way of court proceedings UNLESS unreasonable to expect complainant to have pursued these

13. NICCY shall not investigate… • the commencement of • Any criminal proceedings • Any civil proceedings by any person other than a relevant authority • conduct of any court proceedings • any action subject to local or public inquiry • unreasonable delay

14. Legal Proceedings • Bring/intervene in proceedings in any court or tribunal regarding children’s rights • Act as amicus curae To do so • MUST seek leave of the court • ONLY carry out this function if • case raises a question of principal • other special circumstances

15. Financial Assistance • Can be granted if satisfied • case raises a question of principle • complexity • special circumstances • no other person/body likely to provide assistance

16. Re E • NICCY and CLC acted as joint interveners in the Re E case before the House of Lords in June 2008.  • House of Lords unanimously held that the police fulfilled their duty to protect the children and their parents from inhuman and degrading treatment. • NICCY and CLC’s involvement in the proceedings was commented upon by Baroness Hale of Richmond as being “very helpful” in drawing attention to the particular vulnerability that children experience in times of conflict.  • Lord Carswell - the role that the UNCRC should have in decisions taken by the State that affect children and young people • the keen interest the Lords expressed in hearing the child’s feelings on how the conflict affected them personally. 

17. Re McMillen • Dr Robert McMillen, Chairman of the Board of Governors of Ballyclare High School brought an application to the court to determine whether or not their School Uniform Policy and School Disciplinary Policy were lawful. • Mr Justice Weatherup ruled that the policies were lawful and there was no breach of ECHR or Sex Discrimination Laws. • “Such a code must be a living instrument and there must be in place appropriate mechanisms for change and for engaging the voice of the pupil and all the other properly interested voices. The School Council is the vehicle through which issues should be addressed.” • Mr Justice Weatherup

18. Physical Punishment • In 2007 NICCY challenged the legality of the defence of reasonable chastisement • Article 2 of the Law Reform (Miscellaneous Provisions) (NI) Order 2006 • affords parents only a defence of reasonable chastisement to a common assault (s42) • The main grounds of the challenge were incompatibility with European Convention on Human Rights Principles specifically • Article 3 – right to be free from torture • Article 8 – right to a private and family life • Article 14 – right to be free from discrimination

19. Challenges for NICCY • Human Rights Act 1998 sets out a victim’s test at section 7 • for JR proceedings need sufficient interest • only have this if could be classed a victim of the act • However further judicial and academic guidance sets out that public bodies cannot complain in the abstract • NECESSARY that the law has been applied to their detriment • Mr Justice Gillen accepted the NIO assertion that there was no victim before him and in 2009 the Court of Appeal agreed

20. Formal Investigations • OTHER than for court, policing or criminal justice bodies. • Commenced at Commissioner’s discretion • Produce terms of reference for the investigation and forward to all relevant parties • Afford the relevant authority an opportunity to comment

21. Procedure of Investigations… • obtain information as think appropriate • not obliged to hold a hearing • no person entitled to be heard as of right • if report has possible adverse outcome must give the authority • opportunity to give evidence and • opportunity to test any evidence that may affect the authority by cross examination • child or young person should be given same

22. Exemptions • Will not affect any action taken by an authority/Department or Minister or any power for them to take further action • NICCY already intervened/assisted under legal powers • NICCY undertaken a review of arrangements in place

23. Reports • report on the outcome of the investigation send it to all appropriate people • include recommendations and reasons for same • authority is under a duty to consider the recommendation and determine what action if any take

24. Additional steps… • Within 3 months NICCY can require the authority to provide • information to enable the Commissioner to determine whether the recommendations complied with • a statement of reasons for non compliance • a failure by the authority to respond may be published • If not satisfied with response NICCY may send another notice setting this out and asking for the matter to be reconsidered • NICCY must maintain a publically available register of each stage and response received

25. Evidence • NICCY may seek production of documents from any person with information • Powers of the High Court in respect of • Attendance and examination of witnesses • Production of documents • High Court rules of disclosure apply

26. What can we do??? • Entry and Inspection • Powers to interview staff and residents • Must inform parent of intention and their right to be present • UNLESS feel to do so would not be in best interests of c&yp or not practicable • When doing so need to demonstrate our authority to do all the above • CANNOT do so for private dwelling

27. Procedure • Ministerial exception applies where they were acting in good faith • Information gathered from investigation should not be disclosed other than • for purposes of report • where criminal act may be involved • an inquiry into possible criminal proceedings • for contempt or obstruction proceedings

28. Role of the Commissioner? • “Safeguard and promote the rights and best interests of children and young people” Policy & Research Legal & Casework Team Communication & Participation

30. Legal and Casework • Legal and Casework– supporting and investigating individual complaints, but also legal action • Referrals from lots of sources including- social workers, children young people, parents and professionals

31. Cases 09/10 …645

32. Case Study • 14 year old male • Accommodated by Trust • Loses placement – also bail address • Article 5 and 8 ECHR concerns • Articles 3, 20 and 27 UNCRC • Letter written to Director setting out concerns • Boy placed within 24 hours