Role and duties of Commissioner for Children

We ratified the Convention on the Rights of the Child in 1990. But words, ideas and even conventions are not enough. It is also imperative to see how these rights are converted into effective action and policy that promote the realisation of these rights. The Convention can be singled out as the most comprehensive and promising milestone in the children's rights movement. However, this is only the beginning. How is this converted into action at the national level?

This is a complex issue that cuts across diverse contexts. While it is important to focus on the child and the child's immediate surroundings, this is not enough. The factors that influence a child's life cannot be viewed too narrowly and the need is felt to broaden the location of the debate on children.

It is a mistake to take the child's perspective only in matters directly concerned with children's issues. The developmental approach to childhood, inherited from the social sciences invites us to focus on education, health, social growth and basic welfare as areas relevant to children and children's issues. This has resulted in the invisibility of children in other areas of policy planning and regulation.

The world is experiencing the phenomenon of accelerating technological, economic and cultural globalisation; we need also to assess the place afforded to children and childhood within these larger contexts. This is calling for a redefinition of some of the assumptions that we have held and for an alteration of our policies to include the new demands of international and intergenerational contexts.

What I mean is that we should be more aware of the effects on children of societal transformations that result from the expansion of the market economy and the acceleration of globalisation in many fields, and the accompanying 'atomisation' in the structure of social relationships.

In the light of the above, the debate in Parliament on the appointment of a Commissioner for Children has been encouraging. The Commissioner will promote and monitor the full implementation of the Convention on the Rights of the Child and promote a higher priority for children in government and in civil society.

The Commissioner will be a voice for children. This includes the insistence on a child impact statement. This is important because all those responsible for formulating policy should be obliged to take into account the impact that their policies may have on children.

Although such a statement is necessary in most fields, including those not directly related to children or children's lives, yet it becomes vital in the case of the child-related laws and policies such as the proposed Children Act that will encompass the desired comprehensive and far-reaching reform of child law and the proposed Family Court that will bring together in one division of the Civil Court as much as possible of the public and private law affecting the family.

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 act as a spokesperson on how these affect the lives of children.

The Commissioner will also inform the general public about its concerns, conduct studies on the living conditions of children and then submit to Government recommendations, proposals and reports on any matter affecting children's interests. This work may be the most difficult and yet the most important task.

However, it is important to clarify the manner in which the Commissioner will carry out his/her duties. The above-mentioned roles are unambiguously embodied in the Bill. However, the experiences of other well established offices in other countries, particularly that of Norway, which was the first to be established and has served as a model and inspiration for other countries, should teach us caution.

A particularly difficult area is the manner in which individual cases or complaints are or are not handled. Malfred Flekkoy, the first ever Ombudsman for Children, has said that this can cause unnecessary pain and frustration. Unless this is very clear, then we can expect difficulties and a disappointed public.

The Bill states that anyone can make complaints and that these should be in writing. It then outlines the follow-up to a complaint. It is important to understand that the person applying to the Commissioner will be advised to "pursue all administrative or judicial remedies or channels of complaint before or in lieu of pursuing a complaint with the Commissioner." Unless this is understood, the office will be inundated with complaints that the Commissioner will not take up.

In a previous article I had pointed out that care is usually taken not to duplicate the effort of other forums that are more properly suited to resolve or to deal with individual cases. In most countries adopting a similar model to ours, only if all other measures have been taken will a Commissioner handle an individual complaint if he/she deems fit.

Even in such a case, it may not have the resources or the duty to handle the case in the sense of solving a problem, but to investigate whether the competent services have done their job properly. I had also mentioned that when such services are not available, the Commissioner can advise the authorities to fill that gap.

Another area of concern is that regarding how the Commissioner will acquire information needed in conducting its duty to monitor children's interests or to carry out investigations. While this is made sufficiently clear in the case of investigations, this is not so clear with regards to "monitoring" duties.

For the purposes of an investigation the authority of the Commissioner to demand information is precisely defined: "no person shall be compelled to give information or produce documents which such person could not be compelled to give or produce in civil or criminal proceedings before a Court." However, we do not have such clarity regarding how the Commissioner is to carry out his/her duty to "monitor whether ministries, government departments and agencies" are meeting the standards set by the Commissioner.

This may be disturbing to those individuals who are at present working in the relevant areas. They need to know how this will affect them and their accountability and what the procedures will be. Unless we are careful, this can backfire and will lead to a lowering of standards rather than the reverse. If one is working under conditions where one has to cover one's self this may lead to a lack of incentive and the avoidance of even the slightest necessary risks. On the other hand, one cannot allow abuse of discretionary powers or neglect of duty. The correct balance will not be easy to find.

Much will also depend on who is appointed to take up this post. In some countries this is done by a public official exam. Even though this is not recommendable for us, the same measure of objectivity should be applied. This Commissioner needs to be capable and willing to influence law, policy and practice over a wide area and pro-actively increase the visibility of the child and the best interests of children.

Marian Muscat Azzopardi is currently focussing on Social Policy. She has a Master's in Human Rights in Islam and an M.Phil. in Children's Rights. She is currently reading for a Ph.D. on ethical issues in aging.