On Tuesday 15 December at 10am, Parliament’s Education Select Committee will hold a pre-appointment hearing with Dame Rachel de Souza, the government’s preferred candidate for the next Children’s Commissioner for England.
This short briefing summarises the statutory role of the Children’s Commissioner for England and the history of its development, particularly highlighting legal duties in respect of children’s involvement in the office and children in care and others living away from home. It ends by making some suggestions for potential areas the Committee could examine in the pre-appointment hearing.
Children’s Commissioner for England – legal duties and powers
The role of the Children’s Commissioner for England is unique in being the only postholder explicitly required by law to promote and protect children’s rights, which includes promoting awareness of the views and interests of children.
The statutory framework for the role is set out in Part 1 and Schedule 1 of the Children Act 2004 (see Annex), which was significantly amended in 2014. It was only after these amendments that England’s Children’s Commissioner was able to become a full member of the European Network of Ombudspersons for Children – because in 2014 the post became legally independent of government and its function and powers for the first time met UN standards for national independent human rights institutions. Three of the important changes made in 2014 were:
- In meeting her primary statutory function, the Commissioner must have particular regard to the rights of children in care, those receiving children’s social care services and other groups whom the Commissioner considers to be at particular risk of having their rights infringed.
- In considering the rights of children, the Children’s Commissioner for England must, in particular, have regard to the United Nations Convention on the Rights of the Child.
- The Commissioner must take reasonable steps to involve children in her office.
Appointment of the Children’s Commissioner for England
Paragraph 3 of Schedule 1 of the Children Act 2004 sets out the appointment process for the Children’s Commissioner. This is an appointment of the Education Secretary who must take reasonable steps to involve children in the process. In September this year, Article 39 and other children’s rights organisations raised concerns over the recruitment process for the incoming Children’s Commissioner. Our Director said: “Children and young people should be on the recruitment panel as equal partners in the process, and it’s a missed opportunity that there’s not been direct dissemination to them about this critical role”.
The Committee is asked to note that the Department for Education’s media release on 8 December announcing the preferred candidate made no reference to children’s involvement in the appointment process and indicated that the Education Secretary named Rachel de Souza “following approval by the Prime Minister”. The Prime Minister’s approval is not a requirement of the legislation.
History and development of the Children’s Commissioner role
Children’s Commissioners, Children’s Rights Commissioners and Ombudspersons for Children are roles which have emerged from the children’s rights movement. They are national human rights institutions for children. The UN has adopted standards for national independent human rights (the Paris Principles), and the European Network of Ombudspersons for Children has published standards for independent children’s rights institutions.
Norway was the first country in the world to appoint a Children’s Ombudsperson (in 1981). England was the last country in the UK to establish a Children’s Commissioner and by the time the legislation here was drafted, over 30 countries had these specialist children’s rights statutory roles.
However, the Bill establishing the role in 2004 was strongly criticised by children’s charities, the Local Government Association and others, and described as ‘rights-lite’ by the then Shadow Children’s Minister, Tim Loughton MP. In the House of Lords, Conservative Peers said the plans for England’s children were “discriminatory” when compared with the rights-based Commissioners in Wales, Scotland and Northern Ireland, and they accused the Labour government of establishing a “castrated” body. Following the legislation’s passage through both Houses of Parliament, the Commissioner’s statutory framework was significantly strengthened. Nevertheless, it wasn’t until 2014 that its primary function moved from promoting awareness of the views and interests of children in England, to promoting and protecting the rights of children in England.
This history, and an understanding of the legal framework, is critical to the appointment process. This is a statutory role like no other in that the postholder must be singularly concerned with the promotion and protection of children’s rights. That each postholder can only serve a single term was written into the legislation to protect its independence from government. Moreover, since 2014 the Commissioner has had particular duties towards children in care and others living away from home. This followed the deletion of the statutory role of Children’s Rights Director in Ofsted, and the transfer of his function to the Commissioner’s legal framework. Committee members will recall that the Children’s Rights Director was created amid revelations of widespread abuse in the care system and Ministerial commitments that never again would complaints from children in care be silenced or ignored.
SUGGESTED AREAS TO EXPLORE
We hope the Committee can use this pre-appointment hearing to explore:
1) What experience the preferred candidate has of promoting and protecting the rights of children in England.
2) How the preferred candidate will ensure independence from government and others in undertaking this unique children’s rights role.
3) The preferred candidate’s knowledge of the views and experiences of children in care, and which areas of their rights she is most concerned about.
4) Which rights in the United Nations Convention on the Rights of the Child the preferred candidate considers children in England currently enjoy the most, and which rights she considers are not being upheld.
5) What ideas or plans does the preferred candidate have for ensuring children are meaningfully involved in her office, and how will she promote the views and interests of children.
6) How would the preferred candidate like children to judge her time in office, and what does she hope to have achieved in children’s rights by the end of her six-year term.
Annex: statutory duties and powers of Children’s Commissioner for England
Section 2, Children Act 2004
Primary function: children’s rights, views and interests
(1) Children’s Commissioner’s primary function is promoting and protecting the rights of children in England.
(2) The primary function includes promoting awareness of the views and interests of children in England.
(3) In the discharge of the primary function the Children’s Commissioner may, in particular—
(a) advise persons exercising functions or engaged in activities affecting children on how to act compatibly with the rights of children;
(b) encourage such persons to take account of the views and interests of children;
(c) advise the Secretary of State on the rights, views and interests of children;
(d) consider the potential effect on the rights of children of government policy proposals and government proposals for legislation;
(e)bring any matter to the attention of either House of Parliament;
(f) investigate the availability and effectiveness of complaints procedures so far as relating to children;
(g) investigate the availability and effectiveness of advocacy services for children;
(h) investigate any other matter relating to the rights or interests of children;
(i) monitor the implementation in England of the United Nations Convention on the Rights of the Child;
(j) publish a report on any matter considered or investigated under this section.
(4) In the discharge of the primary function, the Children’s Commissioner must have particular regard to the rights of children who are within section 8A (children living away from home or receiving social care) and other groups of children who the Commissioner considers to be at particular risk of having their rights infringed.
(5) The Children’s Commissioner may not conduct an investigation of the case of an individual child in the discharge of the primary function.
Section 2A, Children Act 2004
United Nations Convention on the Rights of the Child
(1) The Children’s Commissioner must, in particular, have regard to the United Nations Convention on the Rights of the Child in considering for the purposes of the primary function what constitute the rights and interests of children (generally or so far as relating to a particular matter).
(2) The references in section 2(3)(i) and this section to the United Nations Convention on the Rights of the Child are to the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989 (including any Protocols to that Convention which are in force in relation to the United Kingdom), subject to any reservations, objections or interpretative declarations by the United Kingdom for the time being in force.
Section 2B, Children Act 2004
Involving children in the discharge of the primary function
(1) The Children’s Commissioner must take reasonable steps to involve children in the discharge of the primary function.
(2) The Commissioner must in particular take reasonable steps to—
(a) ensure that children are aware of the Commissioner’s primary function and how they may communicate with him or her, and
(b) consult children, and organisations working with children, on the matters the Commissioner proposes to consider or investigate in the discharge of the primary function.
(3) The Children’s Commissioner must for the purposes of this section have particular regard to children who are within section 8A (children living away from home or receiving social care) and other groups of children who the Commissioner considers do not have adequate means by which they can make their views known.
Section 2C – Primary function: reports
Section 2D – Provision of advice and assistance to certain children in England
Section 2E – Powers to enter premises to conduct interviews or observe standards
Section 2F – Provision of information to Commissioner
Section 3 – Inquiries initiated by Commissioner
Section 7A – Advisory board
Section 7B – Business plans
Section 8 – Annual reports
Section 8A – Children in England living away from home or receiving social care
Section 9 – Commissioner’s functions in relation to certain young people
& Schedule 1