Select Committee on Education and Skills Memoranda

Memorandum from the Commissioner for Children for Wales, the Commissioner for Children and Young People for Scotland and the Commissioner for Children and Young People for Northern Ireland to the House of Commons Education and Skills Committee

1.  As the three existing Commissioners for Children (and Young People) in the United Kingdom, we thought it might be helpful for the Committee to have a short paper setting out in tabular form the comparative powers which we three Commissioners enjoy, and those which we understand the English Commissioner for Children will have as a result of the Children Act. We have attempted to ensure that the attached table is as accurate as possible, and while we can vouch for the interpretation of our own legislation, we would not claim a similar level of detailed understanding of the Children Act.

2.  It will be apparent from even a casual perusal of the attached table that while there are significant similarities in role among the four Commissioners, there are also very significant differences. In particular, the focus of the English Commissioner is on listening to children's views whereas the other Commissioners are focused on promoting the rights (and welfare/best interests) of children. The English Commissioner has been given specific outcomes to focus on whereas the other Commissioners do not have such a requirement. There are also differences in the scope of functions (eg in Wales and Northern Ireland individual complaints can be considered, but not in Scotland or England). The Northern Ireland Commissioner has the most extensive remit and powers.

3.  We have not dealt in the table with the role of the English Commissioner in Wales, Scotland and Northern Ireland, as the format does not really lend itself to this description. Sections 5, 6 and 7 respectively of the Children Act do give the English Commissioner the responsibility to promote the views of children in Wales, Scotland and Northern Ireland on issues which fall outside the remit of the local Commissioners. The English Commissioner is required to discuss with the local Commissioners any work they do on this. The English Commissioner also has the right to conduct an investigation (on the same basis as investigations in England) if a matter affecting a child concerns the exercise of powers which remain at Westminster and have not been devolved. There is no requirement to consult with the local Commissioners on such inquiries.

4.  During the passage of the Children Bill we jointly and individually expressed a number of misgivings about the proposals for the English Commissioner within the Bill. Our concerns are well documented and include the lack of an emphasis on children's rights, the degree of independence of the Commissioner, and the role the Commissioner will have in Wales, Scotland and Northern Ireland.

5.  However, now that the legislation has been passed by parliament we are very concerned to make it work for the good of all of the children and young people living in the United Kingdom. We look forward to working with whoever is appointed to the post of English Commissioner for Children, and to drawing up with them a Memorandum (or possibly Memoranda) of Understanding to promote effective working between us all.

6.  We will be pleased to explore with the Committee in oral evidence what can be learnt from our own experience of acting as Commissioners for Children (and Young People) in the time since we have been appointed.

Peter Clarke, Commissioner for Children for Wales

Professor Kathleen Marshall, Commissioner for Children and Young People for Scotland

Nigel Williams, Commissioner for Children and Young People for Northern Ireland

6^th January 2005

FUNCTIONS	WALES Care Standards Act 2000 (Part V) and Children's Commissioner for Wales Act 2001 Childrens Commissioner for Wales Regulation 2001	NORTHERN IRELAND The Commissioner for Children and Young People (Northern Ireland) Order 2003	SCOTLAND Commissioner for Children and Young People (Scotland) Act 2003	ENGLAND Children Act 2004
Appointment and Status	By First Secretary of National Assembly after taking account of advice of the relevant committee, views of relevant children, advice of selection panel Independent of the National Assembly Children's Commissioner for Wales ( Appointment Regs) 2000 Regs 2(1)2(2) and 4	By First Minister and Deputy First Minister jointly (Secretary of State during the suspension of the Assembly & Executive) Independent of government. Article 5(2) of Order and Schedule 2	Appointed by the Queen on the nomination of the Scottish Parliament. Section 2(1) of the Act.	Appointed by Secretary of State Section 1 and Schedule 1
Length of Term	7 year, non renewable Children's Commissioner for Wales ( Appointment Regs) 2000 Regs 2(3)(4)	4 year term. Maximum of two terms. Schedule 2, paras 3(2) and (3) of Order	5 year term. Maximum of two terms. Section 2(3) and (4) of the Act	5 year term Maximum of two terms Schedule 1

FUNCTIONS	WALES	NORTHERN IRELAND	SCOTLAND	ENGLAND
Budget and Staff Size	22 staff 2001/2002 £936,000 2002/2003 £1.122 million 2004/2005 £1.4 million	25 staff - numbers to be confirmed £1.4 million set up for first six months plus £1.9million a year thereafter Financial Memorandum to Order	15 staff[1] £1.2million a year (£1.54 million in first year) Explanatory Notes, Financial Memorandum sections 95 and 108[2]	DfES estimates that the running costs will be £2.5 million per annum, and that the Commissioner will provide for the establishment of his/her own office out of the annual running costs. Children Bill Final Regulatory Impact Assessment, para 51
Child Population (2001 Census)	Under 18: 662,779	Under 19: 500,153	Under 19: 1,224,155	Under-18: 10,551,140
Definition of 'Children'	18 or 21 if been in local authority care or are disabled and 21+ if pathway plan training and education Section 1(2) of Children Commissioner for Wales Act 2001 A person who was at any time a child in Wales receiving specified services Children's Commissioner for Wales Regs 2001 Reg 21(2)	Under 18, or 21 if they have been in local authority care or are disabled Article 3 of Order	Under 18. Or under 21 for children who have at any time been in the care of, or looked after by, a local authority or Northern Ireland authority. Section 16 of Act	Under 18 or under 21 for a person who has been looked after by a local authority and time after attaining the age of 16 or has a learning disability Section 9

FUNCTIONS	WALES	NORTHERN IRELAND	SCOTLAND	ENGLAND
Reporting to	Annually to Assembly through the First Minister. Children's Commissioner for Wales Regs 2001 Reg 15	Annually To the Assembly through the First Minister and Deputy Minister. After three years (and at similar intervals thereafter) the Commissioner can report on his powers and their adequacy and effectiveness. Schedule 2 and Article 24 of Order	Annually to Scottish Parliament Section 10 of Act	Annually to Parliament through Secretary of State Section 8
Published Annual Reports	Yes. To include, a summary of the action during the previous year including reports and representations, a review of issues relevant to rights and welfare of children, a summary of work programme for financial year and following year. Shall produce version for children Children's Commissioner for Wales Regs 2001 Reg 15	Annual report on the carrying out of the functions of the commissioner Schedule 2, paras 12(2) and (3) of Order	Annual report must include a review of issues identified by the commissioner as relevant to children and young people; a review of activities; review of steps taken to fulfil each of the commissioner's functions; an over view of future work, including strategy to involve children. There must also be a child friendly version of the report. Sections 10 and 14 of Act Further reports to Parliament, as appropriate Section 12 of Act	Annual report must cover how he has exercised his general functions (ie Clause 2 functions); what he has found in the course of exercising that function; the matters he intends to consider or research during the next financial year. Must in particular include an account of the steps he has taken to involve children Must also, to the extent he considers appropriate, publish any report made under this section in a version which is suitable for children Section 8 of Act

FUNCTIONS	WALES	NORTHERN IRELAND	SCOTLAND	ENGLAND
Immunity from Prosecution	Publication of any matter in any report absolutely privileged for purposes of law of defamation. Sec 76 (7) Care Standards Act 2000	Immunity from prosecution for defamation granted for any publication by commissioner Article 25 of Order	Commissioner and staff exempt from prosecution for defamation absolute privilege for reports or communications resulting from investigations and qualified privilege for any other statements in pursuance of the purposes of the Act Section 15 of Act	Unclear
Principal Aim	To safeguard and promote the rights and welfare of children in Wales Section 2 of Childrens Commissioner for Wales Act 2001	To safeguard and promote the rights and best interests of children and young people in Northern Ireland In exercising functions, paramount consideration to be the rights of the child, and the ascertainable wishes of the child Article 6 of Order	To promote and safeguard the rights of children and young people in Scotland Section 4(1) of Act	To promote awareness of the views and interests of children in England Section 2 (1) of Act
Focus on Particular outcomes				To be concerned in particular about the views and interests of children relating to the following aspects of their well being: Physical and mental health Protection from harm and neglect Education and training The contribution made by them to society Social and economic well-being Section 2 (3) of Act
UNCRC	Shall have regard to the UNCRC in exercising his functions Children's Commissioner for Wales Regs 2001 Reg 22	Shall have regard to relevant UNCRC provisions Article 6(3)(b) of Order	Must have regard to relevant UNCRC provisions Section 5(2) and (3) of Act	In considering what constitutes the interests of children must have regard to UNCRC Section 2 (11) of Act
Parents		In exercising functions shall have regard to the importance of the role of parents in the upbringing and development of their children Article 6(3)(a) of the Order Must also make parents aware of functions and seek their views Article 7(5) of the Order
Make recommendations to government	Can make recommendations to devolved bodies including the Assembly following an Examination, functions or arrangements review Children's Commissioner for Wales Regs 2001 Reg 13 Can make representations to the Assembly about any matter affecting the rights or welfare of children in Wales Section 75A Care Standards Act 2001	Can make recommendations to Secretary of State, Executive Committee of Assembly and relevant authorities on matters concerning the rights and best interests of children and young people Article 7(4) of Order	Yes Section 10(2)(c) and 11(2)[re investigations] of Act	May advise the Secretary of State on the views and interests of children Section 2 (2) (b) Act May use the annual report to make recommendations Explanatory notes, para 31
Review law, policy and practice	Yes. Including Assembly (subordinate legislation). Section 3 Childrens Commissioner for Wales Act 2001 Section 73 Care Standards Act 2000	Yes. To assess adequacy and effectiveness relating to the rights of children. Article 7(2) of Order	Yes. To assess adequacy and effectiveness relating to the rights of children Section 4(2)(b) of Act	Not specifically - can "encourage persons exercising functions or engaged in activities affecting children to take account of their views and interests" Section 2 (2) (a) The Commissioner may advise Secretary of State on the views and interests of children (Section 2(2)(b)) such as the development of policy or legislation (explanatory notes, para 22)
Review adequacy and effectiveness of services to children by relevant authorities	Can review the effect on children of the exercise of functions and arrangements for complaints, advocacy and whistle blowing of devolved bodies and the Assembly Section 3 Childrens Commissioner for Wales Act 2001 Section 73 of Care Standards Act	Yes. Article 7(3) of Order	Promote best practice by "service providers" - defined in S16 as "any person providing services for children and young people", but excluding parents and guardians. Explanatory Notes say this includes public, private and voluntary providers.(There is no list identifying what is included - it is "any person.") Section 4(2)(b) of the Act.	Not specifically
Review advocacy, complaint, inspection and whistle blowing procedures of children's service providers	Yes and of the Assembly Section 73 Care Standards Ac t2000 Section 4 Childrens Commissioner for Wales Act 2001	Yes Article 9 of Order	Not specified, but could be included in general responsibilities and powers.	May consider or research the operation of complaints procedures so far as relating to children Section 2 (2) (c) of Act Working with the relevant Ombudsmen and statutory bodies Explanatory notes, para 23
Investigations of service providers - general	Yes and the Assembly	Yes - general reviews may be under Article 8 (3) or under Article 8 (4) and Schedule 2 of the Order	Yes. To consider the service providers regard to the rights, interests and views of young people Section 7(1) of Act	Not specified - however in the pursuit of the general function of promoting children's views the Commissioner can require people to provide information, and if he makes recommendations affecting "any person exercising functions under any enactment" he may require that person to state in writing what action they will taken on a particular recommendation Section 2 (8) and (9)
Investigations concerning individual children	Yes and the Assembly Section 73,74 Care Standards Act 2000, Sections 3 and 4 Childrens Commissioner for Wales Act Childrens Commissioner for Wales Regulations 2001, Regulations 3,4,5,6,7,8,9	Yes investigations can relate to particular children but there must be reasonable ground to believe the arrangements in place by relevant authorities were, for example, ineffective in safeguarding and promoting the rights of the child concerned Article 10 of Order	No investigations relating to particular children Section 7(3) of Act	Not as part of general function, Section 2(6). Only where the Commissioner decides having consulted the Secretary of State (or the Secretary of State directs) that the case of an individual child raises issues of relevance to other children. Sections 3 & 4
Investigations into complaints by children against relevant authorities	As above	Yes, where a child's rights may have been infringed, and the Commissioner is satisfied there is a question of principle at stake Article 12 of Order		As above
Assistance to children in making a complaint	In making complaints or representations to service providers and the Assembly. Financially and with advice and representation and any other assistance the Commissioner considers appropriate. Section 76 Care Standards Act Childrens Commissioner for Wales Regulations reg 10	Yes. Commissioner may provide assistance including financial assistance to help a child or young person make a complaint to a relevant authority but only if there is no one else who can do this. Article 11 of Order Support for legal proceedings, in certain circumstances Article 15 of Order	Not specified, but Explanatory Notes to the Act identify provision of information to individuals about what their rights are and where and how to access further assistance, as falling within the general remit to promote and safeguard rights. Explanatory Notes, para. 22.	Cannot respond to individual complaints
Formal Investigations	May examine the cases of particular children where a representation raises a question of principle which has a more general application to the rights or welfare of the relevant child and the Commissioner has taken into account whether the issues have been or should be considered by other persons. Children's Commissioner for Wales Regs 2001 Reg 6 Must give reasons if receives representations and decides not to hold examination Reg 7	The commissioner may carry out a formal investigation as a result of carrying out his functions i.e. this is not limited to cases about individual children Article 9 (only in relation to particular specified authorities, Article 10, or 12 (1) Article 16 sets out arrangements for investigations But not where the commissioner has been involved in previous legal proceedings in the matter Article 17 of Order	Commissioner may carry out an investigation into whether, by what means and to what extent, a service provider [very broad definition] has regard to the rights, interests and views of children and young people" if it raises an issue of particular significance to C&YP or to groups of them. Section 7 of the Act	Only in circumstances where the Commissioner decides (having consulted the Secretary of State) or the Secretary of State directs that the case of an individual child raises issues of relevance to other children. Sections 3 & 4
Investigation Powers	In respect of Examination same as the High Court in calling witnesses, evidence on oath access to information and certifying contempt Section 75 of Care Standards Act Childrens Commissioner for Wales Regs 2001 Reg 8 In respect of reviews as specified in Regulations 2 and 3	Same as the High Court in respect of examining witnesses and access to information Articles 20(1) and (2) of Order Power of entry into establishments involved with children Article 21 of Order These powers are only exercisable in the context of formal investigations	Commissioner can require any person to give evidence and produce relevant documents subject to specific exceptions set out in Section 9 and Schedule 2 Section 9 of Act	Inquiries are subject to Section 250(2)-(5) of the Local Government Act 1972 allowing the Commissioner to summon people to attend to give evidence or to produce documents, and to administer oaths and take evidence on oath. Inquiries are also subject to the relevant Scottish and Northern Irish legislation Sections 3 (8) and 4 (7)

Power of Entry into Establishments	Yes - Children Act 2004 (Sec 61) amended Care Standards Act 2000 (sec 76) so that Commissioner can at any reasonable time, enter any premises other than a private dwelling for the purposes of interviewing any child accommodated or cared for there and if the child consents, interview the child in private	Yes, power of entry into establishments involved with children in pursuit of a formal investigation Article 21 of Order	No	Yes for Section 2 functions, the Commissioner may enter any premises other than a private dwelling for the purposes of interviewing any child accommodated or cared for there and if the child consents, interview the child in private Section 2 (8)
Investigation Restrictions	Not if a matter is or has been subject to legal proceedings And cannot exercise any function exercisable by CAFCASS ( will change when CAFCASS devolved under Children Bill) Care Standards Act, Part V Section 77 Children's Commissioner for Wales Regs 2001 Reg17	Not when matter is subject of public or local inquiry or any other form of legal proceedings or if the complainant has/had a remedy before the court, unless not reasonable for him/her to have used it Article 13 of Order	Not in relation to particular child, or when the matter is already subject to legal proceedings. Nor in relation to matters reserved to the Westminster parliament. Investigations should not duplicate the work of other agencies/individuals. Section 7 (2) and (3) of Act	Formal investigations require the Commissioner to either consult with the SOS or be directed by the SOS. Sections 3 and 4
Bring legal proceedings	Neither specified nor prohibited. Schedule 2 to the Care Standards Act (Para 5) says "Subject to any directions given by the Assembly the Commissioner may do anything which appears to him to be necessary or expedient for the purpose of, or in connection with, the exercise of his functions	Yes, if it raises a question of principle Article 14 of Order	Neither specified nor prohibited. Schedule 1 to the Act (Para 6) says "The Commissioner has a general power to do anything necessary or expedient for the purposes of, or in connection with, the exercise of the Commissioner's functions."	No
Intervention in judicial proceedings	As above	Yes, if raises a question of principle, can bring or intervene in legal proceedings Article 14 of Order	As above.	No
Reporting of Investigations	Must send copies of report of findings and recommendations to First Minister, Assembly and relevant persons, libraries of Assembly and Houses of Parliament, available for public inspection and bring them to attention of people likely to be interested and maintain a register of recommendations Childrens Commissioner for Wales Regulation (13)	Must send copies of reports and recommendations to all relevant authorities and such other bodies/persons as the Commissioner thinks fit Article 18 of Order	Commissioner must report the results of investigations and any recommendations to Parliament Section 11 of Act	Where the Commissioner has instigated an investigation he will publish a report and send it to the Secretary of State Section 3 (5) The report need not identify any child if the Commissioner considers it would be undesirable for the identity of the child to be made public Section 3 (6) Where the Secretary of State has directed there should be an investigation, the Commissioner reports to the SOS who must publish the findings in such manner as he sees fit; unless the report identifies an individual child and the Secretary of State considers it would be undesirable for the identity of the child be made public. In these circumstances the Secretary of State may publish an amended report, or not publish the report at all. Section 4 (4) & (5) of Bill
Undertake and Commission Research	Neither specified nor prohibited. Schedule 2 to the Care Standards Act (Para 5) says "Subject to any directions given by the Assembly the Commissioner may do anything which appears to him to be necessary or expedient for the purpose of, or in connection with, the exercise of his functions	Yes Article 8 (1) of Order	Yes Section 4 of Act	Yes Section 2 (2(d)) of Bill
Publish and issue guidance on matters concerning rights or interest of children	Neither specified nor prohibited. Schedule 2 to the Care Standards Act (Para 5) says "Subject to any directions given by the Assembly the Commissioner may do anything which appears to him to be necessary or expedient for the purpose of, or in connection with, the exercise of his functions The Commissioner can give advice and information to any person Section 76(3) Care Standards Act 2000	Yes. Commissioner can also make representations and recommendations to any body or person. Article 8(2) of Order	Yes Section 4 and 14(2) of Act	Not specifically mentioned

FUNCTIONS	WALES	NORTHERN IRELAND	SCOTLAND	ENGLAND
Participation of Children	Children involved in selection panel when appointing commissioner Commissioner must make children aware of the location of office and the ways in which they can communicate with the Commissioner Must make children aware of commissioner's role and powers Shall ensure the views of children sought as to how the Commissioner should exercise his functions and the content of the Commissioners annual work plan Commissioner and staff shall make themselves available in the children's locality Any material produced takes into account age, level of understanding and usual language of children Children's Commissioner for Wales Regs 2001 Reg17	The commissioner must ensure children and parents are aware of the functions, location and ways to communicate with the commissioner Publications, as far as possible, to take into account understanding and language of the children they concern Views of children and parents must be sought Services of commissioner should, where possible, be made available to children where they live Article 7 (5) of Order	Must encourage the involvement of children and young people in the work of the Commissioner, and prepare and review a strategy for this. Children must be made aware of the functions of the commissioner and ways to communicate with the commissioner Children must be consulted on work Particular attention to groups with no other adequate means to make their views known. Published reports must be accompanied with child friendly versions Sections 6 and 14 of Act	Commissioner must take reasonable steps to involve children in his general function Must ensure that children are aware of his function and how they may communicate with him Consult children and organisations on the matters he proposes to consider or research Have particular regard to groups of children who do not have other means by which they can make their views known Section 2 (4)&(5) 'The Commissioner will be expected actively to gather and take into account the views of children and young people from all backgrounds. However the Commissioner will also use his own judgement in determining the interests of children, and he may decide they are not what children say they are' Explanatory notes, para 20

Based on a paper originally prepared by Alex Callaghan, NCB Policy Unit, November 2003. Updated by Nigel Williams, Northern Ireland Commissioner for Children and Young People, March 2004 and January 2005 with input from the Commissioners for Children in Wales (Peter Clarke) & Scotland (Kathleen Marshall)

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1   The Finance Committee's First Report in 2003 thought that a staff total of 15 was excessive Back

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Prepared 13 January 2005