The Children's Commissioner

The Minister for Social Policy's announcement that the Cabinet has accepted his proposal to establish an independent Children's Commissioner is welcome. It has long been awaited.

Malta ratified the United Nations Convention on the Rights of the Child in 1990. Plans for the establishment of an ombudsman for children were already mentioned in 1997 in the first periodic report submitted by Malta to the UN Committee on the Rights of the Child.

In its concluding observations on this report, the UN Committee commended the Maltese government's plans for the establishment of an ombudsman for children as an "an independent mechanism" to strengthen the monitoring of the implementation of the Convention.

The report submitted by Malta also mentions a draft bill, entitled the Children Act, as being considered by Parliament and mentions that this bill will consolidate into one law all existing provisions relating to children's rights. We are still awaiting this.

This report also refers to the proposed setting up of a Family Court that was to include the creation of a post of Advocate for the Child in proceedings before a competent court in matters affecting children. Since then, the White Paper on the setting up of a Family Division - Civil Court was published in June last year. It would however make sense to establish the role of a commissioner or ombudsman for children before the Family Division or the Children Act are transposed into law. For one of the main functions of a commissioner for children is to make a careful assessment of all laws, regulations, policies, plans and institutions and see how these affect the lives of children.

This institution is normally expected to monitor the extent to which the government is honouring its commitment to uphold the minimum standards contained in the UN Convention, and to protect the rights of children vis-à-vis public and private authorities.

Commissioner or ombudsman?

The terms commissioner or ombudsman for children may sound confusing. To have a better idea of what the shift in terminology implies, it may be helpful to look at what other countries have done.

Norway is a pioneer in this area. Malfrid Grude Flekkoy was the first Ombudsman for Children in 1981, and this was the first position of its kind in the world. This has served as an inspiration and as an example to many countries. Those responsible for establishing our Children's Commissioner are urged to have close regard to the duties and powers of the Children's Ombudsmen in such countries as Norway and Sweden.

The Norwegian Act relating to the ombudsman for children states that its purpose is to contribute to promoting the interests of children is society. This is a common theme underlying all similar institutions. However, these institutions vary in status, responsibilities, powers and in breadth of remit.

Other terminology has also been used to refer to similar models. In France there is the office of the Defenseur des Enfants while the National Council for Children is the Danish model for an Ombudsman for children. Other countries, such as New Zealand and Wales, have established Children's Rights Commissioners. Most offices are independent and it is important that they are so, while some give the impression of being government agencies.

It is still not sure what our government has in mind but the recent choice of the term 'commissioner' does not necessarily imply that we will stray far from the original Norwegian model of the ombudsman for children.

Functions

The role of the commissioner/ombudsman usually includes the examination of existing and proposed legislation and policies and the critical evaluation of their impact on the everyday lives of children. Again, the weight that this work exerts on existing powers varies from country to country.

However, the driving force behind this level of ombudswork is to provide a voice for children in the political arena, to throw a spotlight on children and their situation in order to put them on the political agenda. In this way, child friendly policies can be stimulated.

It is frequently observed that children's lives cannot easily be compartmentalised. There is hardly any policy or institution that does not have some bearing on the lives of children. It has long been felt that we need to look into areas that have not hitherto paid enough attention to the needs of children.

In fact, what is being called for, through the establishment of such child-oriented institutional structures, is the child-impact statement that looks at all dimensions of our society.

Ombudswork done at this level helps all children, not just those in trouble or those who have been victims of injustice. This work is pro-active and seeks to establish conditions in which children can flourish. It focuses on the preconditions necessary for taking children's interests, rights and essential needs seriously.

Another widely recognised function of the commissioner/ombudsman is to inform the public about children's issues. The commissioner/ombudsman is also usually expected to conduct studies on the conditions in which children live. He can then submit to the Government recommendations, proposals and reports on any matter affecting children's interests.

This work may be the most difficult and yet the most important. This is because policies that have an impact on children's lives require knowledge about children. This kind of work can examine the cultural and economic structures of society in order to seek to discover social and historical causes of injustice.

Many offices utilise select committees of experts for this task. In countries that follow the Nordic model, some of these experts may sit on parliamentary committees in an advisory capacity.

Individual casework

One of the most significant differences in the functions of the various offices is in the handling of individual complaints and individual cases. It is also the most difficult aspect to explain. There are many different levels of involvement in the case of individual complaints and in the handling of individual cases. Individual complaints are received by most if not all types of models. The difference lies in the kind of follow-up that the various set-ups allow for.

In brief, in some offices, the commissioner/ombudsman may tackle cases in his own name and assist children in taking cases where there are allegations of breaches of children's rights. In some countries this type of work is undertaken on an extensive basis and there is also provision of free legal assistance to victims of abuse or violence.

For example, in Austria, the ombudsmen have a broad remit to do individual casework as well as to protect children's rights and interests at the broader policy level and promote public awareness of children's welfare and interests. Apart from offering information and advice to children, the Austrian ombudsoffices mediate between children and their parents or other professionals. However, in other countries, the ombudsman/commissioner investigates cases of structural or institutionalised injustices if a repeated number of similar complaints indicate that this is needed.

For example, the terms of reference of the Swedish ombudsman is not to intervene in individual cases; however, it is pointed out that the ombudsman "can take an individual case as its starting point for interpreting the Convention from a Swedish perspective in order to give greater prominence to principles which could form the basis for different standpoints, recommendations and proposals for change."

The Flemish Children's Rights Commissariat receives and investigates complaints: when it handles a case it investigates whether the competent services have done their job properly. If it is found that such services are not available, the commissioner/ombudsman can advise the authorities to fill that gap and set up the appropriate helplines.

In some countries, only if all other measures have been exhausted will an ombudsman/commissioner handle an individual case. This makes sense because it would be wasteful to duplicate resources and also there may be other institutions that are more properly suited to resolve individual cases.

The way the Maltese Children's Commissioner will deal with individual complaints may prove to be the most difficult aspect to find broad agreement on. If a commissioner in Malta is given the powers to handle individual cases, the powers to do this must be carefully circumscribed. Whatever the outcome, let us hope that those who speak out in the debate that might arise on this, will do so in the interests of the child and not to guard their own territory.

There is no general agreement on whether a Children's Commissioner should be limited to dealing with devolved matters or whether his or her remit must extend to reserved matters as well (to allow, for example, criminal justice and policing issues to be looked at).

The public is not aware of how the commissioner is to function, what his powers will be and within which parameters he will be expected to operate. The definition of these matters is of the utmost importance and merits very careful consideration. One can state, with the Norwegian Committee that evaluated the world's first children's ombudsman, that "the ombudsman could have an important function as co-ordinator and initiator of professional and political processes and could help to form more holistic policies related to children and adolescents."

These few thoughts should indicate that the exact terms of reference require careful consideration, as the consequences can be far-reaching. We have however the advantage of seeing what the experience of other countries has taught them and what it should therefore teach us.

Whatever model we decide to follow, the proposed Children's Commissioner must be adequately resourced and equipped with the necessary statutory powers to carry out this role effectively. To make this meaningful, it is also important that the process of consultation about the role of the proposed commissioner and the relative legislation is open and is actively taken up by all who can contribute to the discussion.

Marian Muscat Azzopardi, MA, M.Phil., is currently studying Social Policy and Social Administration. Her M.Phil. thesis was about theoretical and practical aspects of children's rights. She can be contacted by e-mail: marianmuscatazzopardi@hotmail.com.