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EXISTING INDEPENDENT OFFICES FOR CHILDREN
What do we mean
by an Independent Office for Children?
When ENOC was established in Trondheim in 1997, it agreed the
following criteria for membership:
 | national, regional or local offices set up
through legislation to independently promote children’s rights and interests; |
| bodies established by government or
Parliament which are able to advocate independently for children; |
| major national NGOs generally perceived to
be providing a similar office. |
In 1999 the
Network agreed to a revision and tightening of criteria for membership, reflecting
developments across Europe:
"ENOC recognises that the concept of independent offices for children - children's
ombudsmen, commissioners, and so on - is a developing one, and that its criteria for
membership will need to be kept under review."
Membership of ENOC is open to offices within Council of Europe member-countries which
meet one of the following criteria:
- National or regional offices set up through legislation specifically to promote
children's rights and interests;
- National human rights institutions set up through legislation which include a specific
focus on children.
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Aims
Inevitably and correctly, the aims and priorities of independent offices for children
will vary from state to state. They will vary according to differences in the situation of
children and according to the variety of governmental and non-governmental institutions
and structures affecting children and promoting human rights within states.
The following is a summary of aims of existing independent offices; not all offices
pursue all these aims (in particular, offices vary according to whether or not they deal
with individual cases and complaints from children):
| to promote full implementation of the
Convention on the Rights of the Child; |
| to promote a higher priority for children,
in central, regional or local government and in civil society, and to improve public
attitudes to children; |
| to influence law, policy and practice, both
by responding to governmental and other proposals and by actively proposing changes; |
| to promote effective co-ordination of
government for children at all levels; |
| to promote effective use of resources for
children; |
| to provide a channel for children’s
views, and to encourage government and the public to give proper respect to
children’s views; |
| to collect and publish data on the situation
of children and/or encourage the government to collect and publish adequate data; |
| to promote awareness of the human rights of
children among children and adults; |
| to conduct investigations and undertake or
encourage research; |
| to review children’s access to, and the
effectiveness of, all forms of advocacy and complaints systems, for example in
institutions and schools, and including children’s access to the courts; |
| to respond to individual complaints from
children or those representing children, and where appropriate to initiate or support
legal action on behalf of children. Top
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Factors
for effective operation
All independent offices for children share some of the above aims, and so it is
possible to identify some common factors likely to make them effective:
The United Nations Handbook on National
Human Rights Institutions suggests the following "effectiveness factors":
| independence;
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| defined jurisdiction and
adequate powers;
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| accessibility;
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| co-operation;
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| operational efficiency;
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| accountability.
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The "Paris Principles" on the status
of national human rights institutions provide a basic framework for the
establishment of an independent office to promote children’s human rights. Offices
should have:
| the competence to promote and protect human
rights; |
| as broad a mandate as possible, set forth in
a constitutional or legislative text, specifying the institution’s composition and
sphere of competence; |
| responsibilities to provide to parliament,
government and other competent bodies opinions, recommendations, proposals and reports on
any matters concerning the promotion and protection of human rights - either on request or
through the office’s power to consider matters without any higher referral; |
| the right to publish opinions and reports
independently, including commenting on the current state of the law and developments
affecting human rights and any violations; |
| general duties and necessary powers to
enable the institution:
 | to promote and ensure harmonisation of national
legislation, regulations and practice with the international human rights instruments to
which the state is a party, and their effective implementation; |
| encouraging ratification or accession to these
instruments; |
| to contribute to the reports which states are
required to submit to UN bodies and committees and to regional institutions, and where
necessary to express an opinion on the subject, "with due respect for their
independence"; |
| to co-operate with UN and UN-related
organisations and regional and national human rights institutions; |
| to help formulate programmes for teaching and
researching human rights and take part in them in schools, universities and among
professionals; |
| to publicise human rights and efforts to combat
discrimination, by increasing public awareness - particularly through information and
education and use of the media. |
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Methods of operation must include
rights to:
| freely consider any questions falling within the
institution’s competence |
| hear any person and obtain any information and
documents necessary to assess situations falling within the institution’s competence; |
| speak out freely through the media. |
The Principles propose particular
guarantees of independence:
| powers to enable effective co-operation to be
established with (or in the case of a Commission with members, through the presence of)
representatives of relevant NGOs, trade unions, concerned social and professional
organisations (for example associations of lawyers, doctors, journalists and eminent
scientists); trends in philosophical or religious thought; universities and qualified
experts; Parliament; government departments (but if they are included, they should
participate in deliberations only in an advisory capacity); |
| adequate funding to enable the institution to
have its own staff and premises, in order to be independent of Government "and not
subject to financial control which might affect its independence": |
| appointment of members of the institution by an
official act specifying the duration of their mandate. |
(There are additional principles for
institutions which are empowered to hear and consider individual complaints and
petitions).
Independence
The definition of these offices is that they are independent of government. But the
concept of independence is inevitably relative not absolute. Parliament or government
generally provides most funding and there must be accountability. And to be influential,
these offices need to have a close but not a dependent relationship with government.
A detailed section in the UN Handbook on National Human Rights Institutions
discusses key components of independence. The following section is drawn from the Handbook
and from the experiences of developing independent offices for children:
establishment by legislation: many, but not all, independent offices for
children have been established through an act of parliament, setting out their function
and duties, status, powers, methods of appointment and so on. Defining the aims of an
office in relation to the Convention on the Rights of the Child provides it with the
authority of international law, and accentuates independence.
The Handbook suggests: "Ideally a national institution will be granted separate
and distinct legal personality of a nature which will permit it to exercise independent
decision-making power. Independent legal status should be of a level sufficient to permit
an institution to perform its functions without interference or obstruction from any
branch of government or any public or private entity. This may be achieved by making the
institution directly answerable to parliament or to the head of state";
operational autonomy: offices must be able to set and pursue their own agenda,
and conduct their own affairs independently of any other individual, organisation,
department or authority. While such offices need to be consulted by government, and are
likely to be asked to do particular projects for government, government should not be able
to dictate the office’s agenda, or overcrowd it to prevent it developing its own
priorities and being able to respond quickly to new situations.
Similarly, reports and recommendations from an office should not normally be subject to
review or change by any other body.
method of appointment and dismissal of key staff: the process should be
transparent, as far as possible independent of government, preferably by a representative
body such as parliament and it should involve independent bodies including NGOs concerned
with the human rights of children. "Any institution can only ever be as independent
as the individuals of which it is composed. The granting of legal, technical and even
financial autonomy to a national institution will be insufficient in the absence of
specific measures to ensure that its members are, individually and collectively, capable
of generating and sustaining independence of action" (Handbook, page 11).
The following appointment issues need to be addressed, preferably in legislation:
| process of appointment; |
| criteria for appointment (nationality,
profession, qualifications, etc.); |
| duration for appointment, and whether key
staff may be re-appointed (normally a fixed-term appointment, not too short, with the
possibility of an additional term); |
| who may dismiss key staff and for what
reasons (power to dismiss should only be vested in Parliament or at an equivalently high
level, and only for very serious reasons); |
| privileges and immunities (for example,
immunity from prosecution when performing official duties). |
financial autonomy: the
office needs to be financially capable of performing its functions, and as far as possible
finance of the office should be removed from political control, and be guaranteed for a
reasonable period. For financial issues, the office should be accountable not to
government but to parliament. The Office should also be free to raise additional funds
from non-government sources;
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