Creating a children’s champion for Wales? The Care Standards Act 2000 (Part V) and the...

LEGISLATION

Creating a children’s champion for Wales?1 The CareStandards Act 2000 (Part V) and the Children’s

Commissioner for Wales Act 2001

Kathryn Hollingsworth and Gillian Douglas*

Introduction

The advent of the United Nations Convention on the Rights of the Child in 19892

has brought with it a growing public awareness of the separate and special interestsof children. The use of a ‘children’s commissioner’ or ombudsman has come to beregarded as one of the most effective means of ensuring that those interests areprotected. Many states have accordingly established such an office as part of theirresponse to meeting their obligations under the Convention to promote itsprinciples and provisions.3 In the United Kingdom, calls for the creation of a postof this kind have been made for over a decade, most notably in a report in 1991,Taking Children Seriously: A Proposal for a Children’s Rights Commissioner.4

A Children’s Commissioner for Wales, though not for the rest of the UnitedKingdom, has now been created under Part V of the Care Standards Act 2000 andthe Children’s Commissioner for Wales Act 2001.5 The office was establishedfollowing recommendations in the Waterhouse report6 and a request to theWestminster Government from the National Assembly for Wales. The CareStandards Act, which at the time was before Parliament, was used rather thanwaiting for space in the parliamentary timetable for a dedicated piece of legislationbecause of the perceived urgency in establishing the post. The Children’sCommissioner for Wales Act amends the Care Standards Act and extends the role

ß The Modern Law Review Limited 2002 (MLR 65:1, January). Published by Blackwell Publishers,108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.58

* Cardiff Law School. The authors would like to thank Richard Rawlings, David Miers and the anonymousreferees for their helpful comments on an earlier version of this article.

1 The Commissioner has been so described throughout the debates in Parliament and the NationalAssembly for Wales. See eg the First Minister, Rhodri Morgan AM, AssemblyRecord7 December2000.

2 The United Kingdom ratified the Convention in December 1991 and it entered into force in January1992.

3 eg there are children’s commissioners or ombudsmeninter alia in Norway (which was the first toestablish a children’s ombudsman, in 1981), Australia, Germany, Canada, New Zealand, and Sweden.There is also a European Network of Ombudsmen for Children (ENOC). According to The Guardianthere are 18 children’s commissioners or ombudsman around the world.The Guardian29 August2000, ‘Our Young People Need a Champion to Protect Them’. See also M. Seneviratne, ‘Ombudsmenfor Children’ (2001) 23 JSWFL 217, who compares the office established by the Care Standards Act2000 with similar posts elsewhere.

4 M. Rosenbaum and P. Newell,Taking Children Seriously: a Proposal for a Children’s RightsCommissioner, (London: Calouste Gulbenkian Foundation, 1991).

5 The Care Standards Act 2000 received the Royal Assent on 20 July 2000. The commencement datefor the provisions of the Act relating to the Children’s Commissioner was 13 November 2000. RoyalAssent for the Children’s Commissioner for Wales Act was given on 11 May 2001, and thecommencement date is 26 August 2001.

6 Lost in Care: Report of the Tribunal of Inquiry into the abuse of children in care in the former countycouncil areas of Gwynedd and Clwyd since 1974, HC 201 (2000).

and remit of the Commissioner.The first Commissioner,Peter Clarke, wasappointedin December2000,andtook up his dutieson 1 March 2001.

Thesetwo statutes,andthesecondarylegislationmadeunderthem,providefor anumberof firsts. The Children’s Commissioner for Wales is the first children’s‘ombudsman’7 to beestablishedin theUnitedKingdom;8 the2001Act is the firstWales-onlypieceof primarylegislationto beintroducedsincetheestablishmentofthe National Assemblyfor Wales in 1999;9 and for the first time children wereformally involved in the appointmentprocessof a public sectorombudsman.10

The general context

The rights guaranteedto children under the United Nations Conventionon theRightsof the Child arewide-ranging,encompassingboth civil andpolitical, andsocialandeconomicrights.Theycoverprotection(from violence,dangerouswork,abuseandabduction);preventionof harm;provision(of appropriatecare,standardof living, education,facilities andsupportfor specialneeds);andparticipationinsociety,asactivemembersof their community.11 Thesemaysoundimpressiveandcomprehensive, but the problem facing children’s rights advocateslies indetermininghow onecansafeguardandenforcechildren’srights whenthey maybe unableto exercisethemof their own will.

Oneapproachintendedto addressthis problem,which hasbeenadoptedby theCouncil of Europe,hasbeento articulatecertainchildren’srights in greaterdetailand to imposeadditional obligationson statesto promotethese.The EuropeanConventionon the Exerciseof Children’s Rights,12 for example,requiresstatesignatoriesto grant proceduralrights to children affectedby family proceedings(suchas in relation to residence,contact,adoption,etc). Theserights include theright of achild of sufficientunderstandingto receiveall relevantinformation,to be

7 As theposthasbeendescribed.SeeAssemblyRecord12 December2000.We considerfurtherbelowhow far sucha descriptionis apposite.

8 Thoughnote developmentsin other partsof the UK. In Scotlandthe executivehasstatedthat it issympatheticto the ideaof a children’scommissionerand invited the Education,CultureandSportsCommitteeto reporton the issue.The Committeehasconsultedon the possibility of establishingachildren’scommissioner.In NorthernIrelanda privatemember’sbill, The Children’sCommissionerBill, waspresentedto theAssemblyon 30 April 2001.An answerto a questionput by Ms EileenBellto the First Minister andDeputyFirst Minister on 8 December2000statedthat the executivewouldconsiderwhethernew arrangementsfor a children’scommissionerwerenecessary,after consideringthe experienceof other jurisdictions.The Mayor of London hasestablisheda ‘London Children’sRights Commissioner’,funded by charitabletrusts and the National Lottery CharitiesBoard (TheGuardian, 4 April 2001).OxfordshireCountyCouncilandSaveTheChildrenhavejointly establisheda ‘Children’s Rights Commissioner’to give young children a voice at local governmentlevel (R.Harvey, ‘Unseen and Unheard: The case for a Children’s Rights Commissioner’ (2001) 178ChildRight 18, 20.)

9 Accordingly it has been hailed by central Governmentas an act of ‘considerableconstitutionalsignificance’.SeePaulMurphy’s speechduring the secondreadingof the Bill, HC Deb col 221 16January2001.RhodriMorganpointedout in a debateon theQueen’sspeechthattherehavebeenonlyfour Walesspecificbills since1974which wereenacted.AssemblyRecord19 December2000.

10 SeeTheChildren’sCommissionerfor Wales(Appointment)Regulations2000,SI 2000No 3121(W.199)which cameinto forceon 8 December2000.Regulation2(2)(b)providesthattheappointmentoftheCommissionershallonly bemadeafter takingaccountof ‘the viewsof relevantchildrenasto anycandidatesinterviewedfor the appointment’.Seefurther sectionbelow pp 74–76.

11 G. Van Bueren,The International Law on the Rights of the Child (Dordrecht: Martinus NijhoffPublishers,1995)15.

12 ETS160.Openedfor signatureon 25 January1996.TheConvention cameinto forceon 1 July 2000,andhasbeensignedby 23 statesandratified by five.

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consulted,to expresshis or her views, andto haveexplainedthe implicationsofany decisionregardingthe child. The child also has the right to apply for theappointmentof a guardianad litem to representhis or herviews.This Convention,which has not been signed by the United Kingdom, representsan importantdevelopmentin Europeanthinking concerninghow to renderchildren’s rights ofpracticaleffect.However,its impactis likely to belimited sinceit is focuseduponlegalproceedingsaffectingthechild (althoughArticle 11 requiresstatespartiestoconsiderextendingrightsto mattersaffectingchildrenwhich arenot thesubjectofproceedings).

An alternative approachis to establisha pro-active organisationor officerchargedwith thetaskof promotingchildren’sinterestswhomight beableto actonchildren’sbehalfandcheckthat their rightsarebeingupheld.Fortin13 arguesthatsuch an appointment could also focus governmentattention on services forchildren, and combatthe problemof responsibilityfor suchservicesbeing splitbetweendifferent governmentdepartments(andindeed,betweenlocal andhealthauthorities etc).14 A children’s commissionercould lobby policy makers andpractitionersto takeaccountof children’srightsandserveasa soundingboardfornewpolicy developmentsthroughrequirementsto consultthecommissioneron thelikely impactof suchdevelopmentson children.But thedangerof this approachisthatanadultoffice-holdermay fail to understandchildren’sown concernsandactin a ‘top-down’ way in determiningwhat is ‘good’ for them, focusingon theirprotectionandprovisionrights to the neglectof their participationrights.

Reflecting the view that children need a dedicatedofficer to promote theirinterests,in 1997, the United Nations Committeeon the Rights of the Child15

recommendedthat the United Kingdom establisha children’s ombudsmanorcommissionerto ensurethat children’s rights were promotedmore efficiently.16

Thisproposalwastakenupby theHouseof CommonsSelectCommitteeonHealthin 1998. The Committeeset out the proposedduties of a UK commissionerasincluding: thepromotionof awarenessof the rightsof children,highlightingwaysin which presentandproposedpolicy andpracticefailed to respectthoserights;investigationsinto incidentswherebreachesof children’srightswereconsideredtohavetakenplace;ensuringthatchildrenhadeffectivemeansof redresswhentheirrights were disregarded;and carrying out or commissioningresearchrelevanttothe safeguardingof children’srights.17

It canbe seenfrom this broadrangeof functionsthat the office of a children’scommissionerasenvisagedhereis broaderthana ‘fire-fighting’ or ‘small claimscourt’ modelof an ombudsmanresolvingindividual complaints.18 It is alsowiderthan the alternative ‘fire-watching’, auditing role whereby investigation of

13 J. Fortin, Children’s Rightsand the DevelopingLaw (London:Butterworths,1998)479–480.14 But notethat this problemis lessacutein Wales,giventhedifferentstructureof governancein place,

andnotealsotheAssembly’scommitmentto ‘joined up’ planninganddeliveryof servicesto childrenand young people,as set out in Children and YoungPeople – A Framework for Partnership –consultationdocument(NationalAssemblyfor Wales,2000)andExtendingEntitlement:supportingyoung people in Wales,Report by the Policy Unit, The National Assemblyfor Wales (NationalAssemblyfor Wales,2000).

15 The committeeresponsiblefor monitoringstateparties’compliancewith the UN Conventionon theRightsof the Child.

16 Children’sRightsOffice, Proposalfor an Office of Children’s RightsCommissioner(1997).17 SelectCommitteeon Health, SecondReport,Children LookedAfter by Local AuthoritiesHC 319

(1997–98)recommendationno 63.18 SeeC. Harlow andR. Rawlings,Law andAdministration(London:Butterworths,2nded1997)427–

455.

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complaints is used to highlight failings in procedure and lead to overallimprovementsin processalthough this, as we discussbelow, is seen as animportantpart of the WelshCommissioner’s remit. Rather,it appearsto conceiveof a body somewhatcloser perhapsto the Equal OpportunitiesCommissionorCommissionfor RacialEquality, in undertakingbotha proactivepublic educationandlobbying role aswell asa morereactiveinvestigatoryandprotectiveone.

The Welsh context

Despite continued support for the establishmentof a UK wide children’scommissioner19 no legislation has been forthcoming from central Government.Insteadit hasfallen to thedevolvednationsto takeforwardthe initiative.20 Waleshas been the first to grasp the nettle, following mounting support from manyquarters.Calls for a specifically Welsh Children’s Commissionerdate back to1993–94when Elfyn Llwyd moved an amendmentto introduce a Children’sCommissioner for Wales in the StandingCommitteeon the Local Government(Wales) Bill. 21 In the 1999 electionsto the Assembly,all of the main politicalparties, except the Conservatives,included manifestopromisesto introduce aChildren’s Commissionerfor Wales.22 The first governmentalsupport can befoundin the1999SocialServicesWhitePaperfor WalesBuilding for theFuture.23

This proposal commandedparliamentary support, with the Welsh AffairsCommittee urging the newly-establishedNational Assembly in June 1999 toestablisha children’scommissioner.24

Upon taking up its functions in July 1999, the Assembly duly set aboutconsidering the issue of establishinga Children’s Commissionerfor Wales.Specifically this task fell to the Health and Social ServicesCommittee,whichreachedearly all-party agreementon the issueandidentified considerationof theremit and role of such a Commissioner as one of the Committee’spriorities.Togetherwith the pre-16EducationCommittee,the Health and Social ServicesCommittee undertook two consultation processesand heard evidence fromnumerousvoluntary, charitableand public bodieson proposalsfor a children’scommissioner.25

19 Seethemotionput forwardby Tom Cox on 15 February2000advocatinga children’scommissioner.HC Deb col 924 15 February2000.SeealsoTheGuardian, 27 December1999which reportedthatthe NSPCC was calling for a United Kingdom children’s commissioner,and The Guardian, 29August2000which askswhy thereareno proposalsfor a children’scommissionerfor England.

20 Seen 8 abovefor developmentsin ScotlandandNorthernIreland.21 SeeHC Deb StandingCommitteeA 12 April, 25 May 1994.22 SeetheAssemblyHealthandSocialServicesCommitteemeetingon 7 July 1999which notedthatthe

following commitmentswere madein the party manifestoes:Labour: to ‘establishan independentChildren’s Commissionerfor Wales,who will advisethe Assemblyon the delivery of servicesforchildren’; Plaid Cymru: to ‘consider the appointmentof a Commissionerfor Children who would:provideinformationandadviceto theAssemblyon children’sissues;ensurethatpoliciesof all kindsarecompatiblewith children’swelfare;andoverseethedevelopmentof local andnationalChild CareStrategies.’Liberal Democrats:‘appoint a Commissionerfor Childrenwith powersto investigatethelocal handlingof anycomplaintabouta public or voluntaryservicemadeby a child.’ Note that onlythe Liberal Democrats’model is closeto that of an ‘ombudsman’asgenerallyunderstood.

23 Cm 4151,1999.24 WelshAffairs SelectCommittee,Third ReportChildcare in WalesHC 156,1999para28.25 Ninety-threewritten responsesto the consultationexercisewere received.SeeHealth and Social

ServicesCommittee,2 February2000.The Committeethen heardoral evidencefrom a numberofbodies(suchastheNSPCC)to whomit put specificquestionsbasedon their written submission.Seethe meetingof 16 March 2000.



During the courseof the Committee’sdeliberations,the final report of thetribunalof inquiry into child abusein North Wales,Lost in Care, waspublished.26

The tribunal, headedby Sir RonaldWaterhouse,wasestablishedin June1996toinquire into the serioussexualand physicalabuseof children in carewhich hadtakenplacein North Walessince1974.27 Evidencewasheardfrom 575witnessesaspart of the examinationinto the eventsof the 1970sand1980s.28 In particularthe Tribunal examinedwhetherthe abusecould havebeenpreventedor detectedearlier by the relevantauthorities,and whetherthe responsesof the authoritieswere appropriate.A numberof recommendations were madein the final report,dealingwith issuessuchasthedetectionof, andresponseto, abuse;thepreventionof abuse;the quality of care; and inspection.Significantly, the proposalfor aChildren’s Commissionerfor Wales was listed as the report’s first recom-mendation.29 Publicationof the report finally persuadedcentralGovernmentthatlegislation establishingthe office of Children’s Commissionerfor Wales wasnecessary.30

The AssemblyHealthandSocialServiceCommitteelaid its final reportbeforethe Assembly on 31 May 2000.31 In recommendingthe establishment of aChildren’sCommissioner,theCommitteeappearto havebeenmostinfluencedbytheir wish to give practicaleffect to Article 12(1) of the UN Conventionon theRightsof the Child. This providesthat

StatesPartiesshall assureto the child who is capableof forming his or her own views theright to expressthoseviews freely in all mattersaffecting the child, the views of the childbeinggiven dueweight in accordancewith the ageandmaturity of the child.

The Committeeconsideredthat

theprime justification for theestablishmentof a Children’sCommissioneris theabsenceofmechanismsto allow children and young people directly to influence decisionswhichimpacton their lives . . . The Commissioneroffers the prospectof giving youngchildrenavoice, in line with the UN Conventionon the Rightsof the Child.32

This emphasison the need to enhancechildren’s ‘participation’ rights as theprimary motivation behindtheir wish to establishthe Commissioner’soffice, issignificant.First, it seeksto makeclearthat theCommissioner’s role is not simply(or evenprimarily) thatof a complaintsprocessor.Neitheris therole envisagedasenhancingchildren’s welfare in a paternalistic,adult-centredway in which the

26 n 6 above.27 Specifically, the former countycouncil areasof Gwynedd andClwyd.28 n 6 above,1.29 ibid recommendations1 and 2. The duties of the Commissioneras envisagedby Sir Ronald

Waterhousewereasfollows: (a) ensuringthat children’srights arerespectedthroughthe monitoringandoversightof theoperationof complaintsandwhistleblowing proceduresandthearrangementsforchildren’s advocacy; (b) examining the handling of the individual cases brought to theCommissioner’sattention(including making recommendationson the merits) when he considersitnecessaryandappropriateto do so; (c) publishingreports,including an annualreportto the NationalAssemblyfor Wales. The Governmentpublishedits responseto the WaterhouseReportasLearningtheLessonsCm 4776,2000.Seethediscussionin ‘Learning the lessons:TheGovernment’sresponseto ‘‘Lost in Care’’’ (2000)169 ChildRight 6.

30 During the secondreading of the Children’s CommissionerBill in the Houseof Commons,theWaterhousereport was describedas the ‘major catalyst’ for the establishmentof the post.Seethespeechby Nigel Evans,HC Deb col 233 16 January2001.The First Minister madereferenceto thedelayin establishinga Commissionerbecauseof the needfor theAssemblyto wait until the tribunalhadreportedthe resultsof the inquiry andthe Secretaryof Statehadannouncedthemin Parliament.SeeAssemblyRecord6 December2000.

31 A Children’s Commissionerfor Wales:TheReportof the Health and SocialServicesCommittee.32 ibid para21.



Commissioner determineswhat is good for children and then seeksto bring itabout. Thirdly, it reflects a much broader– and potentially very impressive–approachto increasinginclusivenessand improving participation(of both youngpeopleandadults)in thepolitical processandthelife of thecommunity,whichhasbeena (largely unrecognised)hallmarkof the Assembly’sworking in its first twoyearsof operation.A ‘core value’ setout in the Assembly’sstrategicplan,BetterWales,33 wasexpressedto be that ‘children andyoungpeopleshouldbe treatedasvaluedmembersof the community,whosevoicesareheardandneedsconsideredacross the range of policy-making’. The establishmentof the Children’sCommissioner can thereforebe seenas a partial, but not the only, responsetotranslatingthis aspirationinto reality.

TheGovernmentinitially maintainedthattheproposalin its CareStandardsBill,to appointa children’s rights director underthe aegisof the new National CareStandardsCommission,capturedthespirit of theWaterhouserecommendations.34

However,this Commissionwill havejurisdiction in Englandonly andhencethechildren’s rights director will operateonly in England.35 Under section8 of theCareStandardsAct, the Assemblyhasresponsibilityin Walesfor thosefunctionswhich the National Care StandardsCommissionhas in England.It could, if itchose, establish a children’s rights director for Wales through regulations.36

However,suchan officer would not be independentof the Assemblybut wouldbe part of the civil service. This neither reflects the recommendationin theWaterhousereport,nor wasit what theAssemblywanted.Instead,an independentcommissionerwassought.

Following a requestfrom the National Assembly,the Secretaryof State forWalesannouncedthatanamendmentto theCareStandardsBill would bebroughtforward to establish an independentChildren’s Commissioner for Wales.37

Although the Commissioner’s remit would be limited to thoseservicescoveredby theBill, 38 theAssemblypassedaresolutionthatit welcomedtheCareStandardsAct 2000, and approveda commencementorder for the Act on 7 November.However the resolutionalso noted that the Care StandardsAct conferredonlylimited powerson the Children’sCommissioner.It calledon the First Minister tomakerepresentationsto theSecretaryof Statefor Walessothatin thenextQueen’sSpeechtherewould bea freestandingBill providingtheChildren’sCommissionerfor Wales with full statutory powers in line with the policy of the NationalAssembly.39 The Queen’s Speech on 6 December 2000 announced theGovernment’s publication of the Children’s Commissionerfor Wales Bill. TheBill wasone of the few introducedin that Parliamentarysessionto completeitsstagesbeforethe 2001GeneralElectionwascalled.

33 <www.betterwales.com>.34 Seespeechby JohnHutton,HC Deb col 926 15 February2000.35 CareStandardsAct 2000,Sched1, para10.36 The Assemblyhasnot doneso, althoughit hasestablisheda CareStandardsInspectorateunderthe

CareStandardsAct which will carry out specific investigations.37 HC Deb col 603 2 March 2000, and seethe announcementto the Assembly’sHealth and Social

ServicesCommitteeby the healthministerJaneHutt at its meetingon 8 March 2000.38 Basically social careservicesfor children (day-care,fostering,adoptionand children’s homesand

boardingschools).Seefurther sectionbelow pp 64–74.39 Seethe Resolutionof the Assemblythat the First Minister requestlegislation:AssemblyRecord24

October2000.Seealsospeechby PeterBlack in the Assemblydebateon the Queen’sspeechwherehe statedthat it was the first Bill to be introducedin Westminsterin responseto a requestby theAssembly.AssemblyRecord19 December2000.



The legal provisions

The legal provisionssetting out the functions, powers,and jurisdiction of theCommissionerare to be found in the two primary piecesof legislation and theregulationsmade under them.40 The Acts avoid being overly prescriptiveandinstead‘in line with thedevolutionsettlement. . . leaveasmuchaspossibleto theAssemblyto be determinedin Regulations’.41 Suchan approachfor Wales-onlylegislationis to be welcomed,asit givesthe Assemblythe opportunityto haveareal role in the developmentof Welsh legislation,and maximisesits secondarylegislativepowers.42 Whatis lesspositiveis thefailure to provideadiscrete,stand-alone piece of legislation. The 2001 Act doesnot set out all the powersandfunctions of the Commissioner,but insteadamendsother piecesof legislation,primarily the CareStandardsAct 2000.Accusationsof inaccessibilityareeasytomake.43

The functionsof the Commissioner

Safeguardingand promotingchildren’s interestsTheoffice of Children’sCommissionerfor Walesis establishedunderPartV andsection72 of the CareStandardsAct 2000. According to the First Minister forWales,theCommissioneris to bea ‘champion’for thechildrenof Wales‘who willsafeguardand promote the interestsof its children and young people’.44 Yetarguablythetwo mostimportantprovisionssymbolisingthis role did not appearintheoriginal legislationandwereonly addedby theamendmentsmadeto theCareStandardsAct by the 2001Act, in sections72A and75A.

The Assembly’sHealth andSocialServicesCommitteerecommended that theCommissionershould ‘exercise his/her functions with the overarchingaim ofpromoting and upholding the United Nations Conventionon the Rights of theChild’.45 Section72A, by contrast(and reflecting the view of the First Ministerquotedabove),statesthat the principal aim of the Commissioner is to ‘safeguardand promotethe rights and welfare of children’ to whom the provisionsapply.Thereis no specificstatutoryrole for theCommissionerto ensurecompliancewiththe Convention,despitenumerouscalls from variousgroupsthat sucha provisionshouldbeincluded.46 It is clearfrom theparliamentarydebatesthattheConventionwasat the forefrontof themindsof thoseseekingto developthebroaderscopeof

40 As well asthe generalpowerof commencementof the provisions,underthe CareStandardsAct theAssemblyhasa numberof regulationmakingpowersin respectof theCommissioner.Seess:73(4)band(5), 74 (1)(2)(3)(6),76(1)(1A)(2)(4)(5),77(2),78(1A)(6),118(4)(7)andSched2, paras6(4), and8. SeeThe Children’sCommissionerfor WalesRegulations2001,SI 2001No 2787(W. 237).

41 SeePaulMurphy, HC Deb col 230 16 January2001.42 For onepotentialdrawbackof this approach,seefurther the sectionon the constitutionalframework

of the Commissionerbelow, pp 72–74.43 See the section on legislation by JaneJonesin the Wales section of the quarterly monitoring

programmeof The Constitution Unit. Nations and Regions: The Dynamicsof Devolution, ‘TheEconomyTakesCentreStage’,February2001– ‘the priceof economy[in thedraftingprocess]. . . isa lesserdegreeof accessibilityof the law anda lesseridentity of it as ‘‘Welsh’’’.

44 SeeRhodri Morgan,AssemblyRecord7 December2000.45 n 31 above,para28.46 SeeHC Deb col 244 16 January2001, in particular Richard Livesey, and the amendmentmoved

during the Committeestagein the Houseof Lords.SeeAmendmentnos5 and8, HL Deb col 749 3April 2001.Cf the Children’sRightsCommissionerBill introducedon 17 January2001for Englandby Mr Hilton DawsonMP, who alsointroducedsimilar bills in 1999and2000.This Bill would haveviewedtheCommissioner’srole asmorecloselylinked to ensuringcompliancewith theConvention.



the Commissioner.However,aswith all internationaltreaties,the United NationsConventionon theRightsof theChild is not legally bindingin UK law unlessit isincorporatedin domesticlegislation.This hasnot beendone,despitecalls for it tobe incorporated into the Children’s Commissioner for Wales legislation.47

Arguably it would havebeeninappropriateto do so in a Bill applying only toWales, given that the governmentratified and is bound by the Conventioninrespect of the whole of the United Kingdom. At one point, the AssemblycontemplatedrequiringtheCommissionerto includeanassessmentof theextenttowhich the position of children in Wales complieswith the requirementsof theConvention, aspartof hisannualreport.48 But theRegulationsmerelyprovidethat,in exercisinghis or her functions the Commissioner shall ‘have regard’ to theConvention.49 This ratherweakformulationof a duty upontheCommissionerwaspresumablyasfar astheAssemblyfelt it couldgo within theconstraintsof theActandgiven the limitations of secondarylegislation.

Section75A wasa lateGovernmentamendmentto theChildren’sCommissionerBill and was intendedto deal with the problem (discussedfurther below) ofwhether the Welsh Commissionercan tackle mattersaffecting Welsh childrenwhich do not comewithin theremit of theAssembly’sdevolvedpowers.50 Section75A, however, provides that the Commissioner ‘may consider, and makerepresentations to the Assemblyabout,any matteraffecting the rights or welfareof children in Wales’. This provision mirrors section33 of the GovernmentofWales Act 1998, which gives the Assemblythe power to ‘consider,and makerepresentationsabout,anymatteraffectingWales’,whetherdevolvedor not.Underthis section the Assembly can accordingly make representationsto centralgovernmentaboutthosematterson which theCommissionerreportsundersection75A(1).

Thesetwo provisionsarethemostvisible signof the Commissioner’s proposedrole asan advocatefor children andasa channelfor making their voicesheard,enablinghim to commentbroadly and generallyon mattersaffecting their lives.His other functions are more specific, and basically correspond with therecommendationsin both the Houseof CommonsSelectCommitteeon Health’ssecondreport51 andthe WaterhouseReport.52

Reviewingand monitoringoperationof complaintsproceduresetcSection73givestheCommissionerthepowerto review,andmonitortheoperationof, arrangementsfor dealingwith complaints,53 whistle-blowing,54 andadvocacy,55

47 ibid.48 n 14 above,para6.12.49 n 40 above,Regulation22.50 Prior to the inclusionof this amendment,NSPCCCymruhadtakenlegaladvicewhich suggestedthat

the Commissionercould be legally challengedif he made commentsduring the course of hisinvestigationswherehe hadno formal mandate:seeTheGuardian, 19 February2001.Seealso theletter to TheGuardianon 16 January2001from the chief executiveof the NSPCCthat the powersproposedunder the Bill, prior to the amendmentbeing introduced,would not have allowed theCommissionerto review andinvestigateall aspectsof a case,eg wherea child hasdied.

51 n 17 above.52 n 6 above.53 s 73(2).54 s 73(3). Specifically, the arrangementsfor ensuringthat properaction is taken in responseto any

disclosureof informationwhich maytendto show(a) thata criminal offencehasbeencommitted;(b)thata personhasfailed to complywith any legalobligationto which he is subject;(c) that thehealthandsafetyof anypersonhasbeenendangered;or (d) that informationtendingto showthatanymatterfalling within oneof the precedingparagraphshasbeendeliberatelyconcealed.

55 s 73(4).



in order to ascertainthe extent to which those arrangementsare effective insafeguardingandpromotingthe rights andwelfareof children.The last of these,advocacy,is of particularinterestto thoseseekingto translateArticle 12 of theUNConvention into practical effect. Section 73(4) refers to the arrangementsformakingpersonsavailable(a) ‘to representtheviewsandwishesof children’ to orin respectof whom relevantservicesare providedin Wales,and (b) ‘to providesuchchildrenwith adviceandsupportof anyprescribedkind’. TheAssemblyhasprescribedsuchkindsof adviceandsupportasthatwhich ‘is intendedto enableorassist[relevant children] to expresstheir views and wishesorally or using anyothermeansof communicationandtheprovisionof advice(includinginformation)to such children about their rights and welfare’.56 Such advocacyservicesaremainly providedby voluntaryorganisations,but thenewCAFCASS,theChildrenandFamily CourtAdvisory andSupportService,57 alsoplaysa role in this regardin relation to children involved in family proceedingsunder the Children Act1989.58

InvestigatingcomplaintsSection74 gives the Commissionerthe power to examinethe casesof particularchildren.TheRegulationsmadeundertheAct setout which typesof casesmaybeexamined,thecircumstancesin whichanexaminationmaybemade,theprocedureto be followed andthe publicationof any reportsfollowing an examination.59

Assistingchildren who are usingcomplaintsproceduresThe Commissionermay provideassistanceto a child, undersection76(1),who ispursuinga complaint or making a representationagainsta provider of services(including health and education) to children, or in prescribed proceedings.Proceedingsaredefinedunderthesubsectionasincluding‘a procedureof anykindandanyprospectiveproceedings’.This appearsto includetaking legal action,buttheAssemblyhasalsoprescribedotherproceedings,including thoseinvolving thechild and ‘the effect on him or her of the exerciseof any function of theAssembly’.60 It is unclearwhat kind of ‘proceedings’a child could take in thisinstance.Would organisinga petition or a lobby of the Assembly to seektheremoval of compulsoryWelsh from the National Curriculum be included, forexample?

The form of assistancethat may be given includes financial assistanceandarrangingfor representation,adviceor assistanceto be given by someoneotherthan the Commissioner.61 Where financial assistanceis being contemplated,theCommissionerwill haveto haveregardto the availability of CommunityLegalServiceFunding(legal aid) or other sourcesof finance,and he may recoverthereasonablecostof providingassistancefrom anycostsor expensesawardedto thechild.62 To ensurethat theCommissionerappliesa testcasestrategyto supportingsuchcases,aswell asto thosehepursueshimself, theRegulationsrequirethat the

56 n 40 above,Regulation2.57 Establishedunderthe Criminal JusticeandCourt ServicesAct 2000,ChapII, ss11–17.58 Seebelow at p 72 for explanationof how the Commissionerwill avoid duplicating CAFCASS’

functions.59 Seefurther below at p 68.60 n 40 above,Regulation10.61 CareStandardsAct 2000,s 76(2).62 n 40 above,Regulation11.



proceedingsareconcernedwith amatterof generalrelevanceto children’srightsorwelfareandnot just to the child concerned.63

Reviewingtheeffecton childrenof exerciseof functionsby public bodiesin WalesThe Children’s Commissionerfor Wales Act specifiesfurther functions for theCommissioner. It insertssection72B into the Care StandardsAct, to give theCommissioner the power to review the effect on children of the exerciseorproposedexerciseby the Assembly of any function, including the making orproposedmaking of subordinatelegislation, and by those bodies listed in theinserted Schedule 2A.64 Additionally, under section 73 (1A), where theCommissioner has the power to examine the arrangementsfor complaints,whistle-blowing and advocacy,he can also assessthe effect on children of thefailure to makesucharrangements.

It is clearthat,asthe original proponentsof a Children’sCommissionerfor theUnited Kingdom suggested,65 a largepart of the WelshCommissioner’s time (atleastin theinitial phaseof his tenure)maybetakenupwith thescrutinyof existingmechanismsfor handling children’s grievances– fire-watching – rather thandealingwith individual complaints.66 To avoid the dangerof settingpriorities forreview of suchmechanismsfrom an adult perspective,it will be essentialfor theCommissioner to build into his way of working meanswherebyhe can tap intochildren’sown orderof priorities.Otherwisethereis a risk that the role becomesyet anotherinspectorial/regulatory layer scrutinisingwork on the ground. It isnoteworthythat the first Commissioner,PeterClarke,identified this asoneof thekey challengesto be addressedupon his assumingoffice.67 Importantly, theAssemblyhas soughtto ensurethat such an approachis not dependenton theattitude of a particular Commissioner.Accordingly the Regulationsinclude arequirementthat theCommissionertakereasonablestepsto ensure,inter alia, thatchildrenin Walesareencouragedto communicatewith theCommissioner andhisstaff, andthat the views of suchchildrenaresoughtasto how the Commissionershouldexercisehis functionsandasto the contentof the Commissioner’s annualwork programme.68

The powersof the CommissionerCrucial to thesuccessof theCommissioner arethepowerswhich hehasto ensurehe caneffectively carry out his functions.

Legal sanctionsand accessto papersand peopleTo ensure that the Commissioner is able to investigate matters effectively,regulationsmadeundersections73(5)and74(3),give him thepowerto requiretheprovisionof informationfrom a rangeof personswhereheconsidersit necessary,including current or former providers of services, their current or formeremployees,and current or former members,directors or receivers of such

63 ibid Regulation10.64 Seebelow,underJurisdiction.TheAssemblyalsohasthepowerto amendto whomthis partapplies.65 SeeR. Hodgkin and P. Newell, EffectiveGovernmentStructuresfor Children (London: Calouste

GulbenkianFoundation,1996)105–106.66 Giventhesizeof child populationit hasbeenarguedthatsucha role would beimpossibleto perform.

SeeFortin, n 13 above.67 TheGuardian, 1 March 2001.Seesectionbelow pp 74–76.68 n 40 above,Regulation12.



services.69 TheCommissionerhasthesamepowersastheHigh Courtto requiretheattendanceand examination of witnessesand the provision of information.Obstructionof theCommissioneror anact in relationto him which would amountto contemptof court may be certified asan offenceto be punishedby the HighCourt. These are similar to the powers bestowed on other ombudsmen.70

Amendmentsmoved at Committee stage in the House of Lords to give theCommissionerrights of accessto institutions were rejected.The Governmentarguedthat the Commissioner’s main role is not to inspector regulate,but toreview andmonitor, and that giving him rights of accesswould overlapwith therole of theCareStandardsInspectorate.71 Arguablyhowever,if theCommissioneris to haveany rights to investigateindividual complaints,which he does,thenheshouldhavefull rights of accessto enablea full andthoroughinvestigation.

Theprocedurethe Commissionermustfollow in examiningindividual casesUnder section74(1), regulationsmay determinehow the Commissioner is to goabout the examinationof complaintsbrought to him by individual children. TheAssemblyRegulationsrequirethe Commissionerto producethe termsof referencefor theexamination,andto sendthemto thepersonwho madetherepresentation;togive noticeof theexaminationandtermsof referenceto thepersonbeingexamined;andto give themthe opportunityto makewritten andoral representationsto him.72

Theseshouldensurethat theCommissioner’sproceduressatisfytherequirementsofArticle 6(1) of the EuropeanConventionon HumanRights.

Duty to report and follow-up proceduresFollowinganyexaminationundersection74,theAssemblyRegulationsrequiretheCommissioner to prepare and publish a report, which may includerecommendations.73 Where the Commissionerhas carried out an examinationundersections73(1) or 73 (1A) he maymakea report.Copiesof reportsmustbesentto thepersonmakingtherepresentation,thebodywhoseprovisionof servicesor exerciseof functions has beenthe subjectof the report, the AssemblyFirstMinister, and the libraries of the Assembly,Houseof Commonsand HouseofLords. Wherethe Commissionermakesrecommendations aimedat the providersof children’sservices,heis requiredto put in placefollow-up procedures74 similarto thoseavailableto the local ombudsman.75 This can include the Commissionerpublishing,in suchmannerashe considersappropriate,a statementthat therehasbeena failure to provide a satisfactoryresponseto his recommendations. Thethreat or actuality of negativepublicity is a useful sanction,but, as with otherUnitedKingdomombudsmen,76 thereareno legalpowersprovidedto forceserviceprovidersto complywith theCommissioner’s recommendations.It is likely that ifthe Commissionerhad legally enforceablepowersthere would be an increasedlikelihood of his beingchallengedon the basisof legality underArticle 6 of theEuropeanConventionon Human Rights and by judicial review. The net result

69 ibid Regulation8.70 eg the ParliamentaryCommissionerAct 1967,ss8& 9 providethe ParliamentaryOmbudsmanwith

suchpowers.71 SeeLord Williams of Mostyn at HL Deb cols 778–780,3 April 2001.72 n 40 above,Regulation7.73 ibid Regulation13.74 ibid Regulation14.75 Local GovernmentAct 1972,s 31 (asamended).76 Except in Northern Ireland where the decisionsof the Commissioner for Complaintscan be enforced

throughthecourts.SeetheCommissionerfor Complaints(NorthernIreland)Order1996,SI 1996No 1297.



might be that his investigationswould haveto be lengthier,moreexpensiveandmoretime-consuming in orderto avoid suchchallenges.

JurisdictionThe scopeof the jurisdiction of any children’scommissioneror ombudsmanwillinevitably be a difficult matterto determine.The demandsof devolution,and theparticularway in which theposthasbeenestablishedin consequence,createfurtherdifficulties for this particularCommissioner.Questionsmustbe askedconcerningwhich bodiesareto be within his remit, andwhich childrencanhe protect?Whatare the geographical limitations on his jurisdiction, given that he is theCommissioner for Walesonly? What mattersare within his jurisdiction as issuesdevolvedto WalesandwhatcanhedowhereWelshchildren’sinterestsareaffectedby actionsanddecisionstakenoutsideWalesor in relationto non-devolvedissues?The first of thesequestionsis further complicatedby the questionof how far achildren’scommissionercanspeakout ‘for children’ on mattersthatmight impingeon therightsof parents.Indeed,theConservativesput downa reasonedamendmentopposingthe secondreadingof the Bill preciselyon the basisthat it

‘fails to assertthe importanceof the family in protectingandnurturingchildren; it fails togive families confidencethat theChildren’sCommissionerwill protectthe interestsof theirchildrenwhilst not impinging on the rights andresponsibilitiesof parents’.77

The Act might equallybe criticised,however,preciselybecauseit doesnot givethe Commissionerany power(otherthanthat implied within the general‘aim’ topromotethe rights andwelfareof childrencontainedin section72A) to lobby onbehalfof childrenagainstthecoercivepowersof parents.Giventhatmostabuseofchildren goeson within the privacy of the family it might be arguedthat theCommissioner will be unableto direct his attentionto children’sareaof greatestneedfor support.

Whichbodiesare within the Commissioner’sremit?Under section78 of the CareStandardsAct (beforeits amendmentby the 2001Act) the powers of the Commissionerapplied to all the servicesfor childrenregulatedin Wales under that Act.78 This coveredchildren’s homes,residentialfamily centres,local authorityfosteringandadoptionservices,fosteringagencies,voluntaryadoptionagencies,domiciliary care,thewelfareaspectsof daycareandchildminding servicesfor all children underthe ageof eight, and the welfare ofchildren living away from home in boardingschools.The main purposeof theChildren’s Commissionerfor WalesAct was to extendthis jurisdiction to otherprovidersof servicesfor children.Thus,thepowerof theCommissionerto reviewand monitor arrangementsfor complaints,whistle-blowing and advocacynowextendsoverbodieslistedin Schedule2B to the2000Act. ThesearetheAssembly

77 HC Deb cols 230–231 16 January 2001. This was a tactical device and the Conservatives’spokesman’sspeechopposingthe Bill said nothing more about preciselyhow the Commissionerwould usurpparents’rights. Seealsothe amendmentmovedandlater withdrawn,in the Committeestagein the Houseof Lords. HL Deb col 756 3 April 2001.

78 Including (a) servicesof a descriptionprovidedby or in Part II undertakings,as far as providedinWales; (b) servicesprovided by local authorities in Wales in the exerciseof relevant adoptionfunctionsor relevantfosteringfunctions;(c) servicesof a descriptionprovidedby personsregisteredunderPartXA of the1989Act, sofar asprovidedin Wales;(d) accommodationprovidedby schoolsor by an institution within the further educationsector(asdefinedin s 91 of the FurtherandHigherEducationAct 1992),so far asprovidedin Wales.



itself, local authorities,healthauthorities,NHStrusts,higherandfurthereducationinstitutionsandschoolgoverningbodies.However,asnotedabove,the 2001Actalso gave the Commissionerthe power to review the effect on children of theexerciseof any function by the Assemblyand by bodieslisted in Schedule2A.This, in additionto includingthebodiesmentionedin Schedule2B, coversa muchwider range,including AssemblySponsoredPublic Bodies(ASPBs)suchas theArts Council for Wales,andthe WelshDevelopment Agency.

Whichchildren can the Commissioner protect?The amendedPart V of the Care StandardsAct applies to a child (a) who isordinarily residentin Wales;(b) to or in respectof whomservicesareprovidedinWales by, or on behalf of or under arrangementswith, a personmentionedinSchedule2B; or (c) to or in respectof whomregulatedchildren’sservicesin Walesare provided.79 The limitation of the Commissioner’sjurisdiction to bodiesproviding servicesin Walesmeansthat a child ordinarily residentin Waleswhogoes to school across the border in England will not be able to ask theCommissionerto review the complaints procedureoperatedby the school’sgoverningbody.A travellerchild, on theotherhand,whomovesaroundandacrosstheborderinto andoutof Walesandwhomaynot thereforebe‘ordinarily resident’in Wales, may, under section 78 (1)(b), complain to the Commissioner aboutservicesreceivedwhile sheis in Wales.80

Although the UN Conventionappliesto ‘children’ who aredefinedin Article 1asbelowtheageof 18,attainingtheageof majority is not a guaranteeof maturityand independence. In particular, the vulnerability of young peopleover 18 whohave beenin care was an issuehighlighted by the Waterhousereport and wasalreadythesubjectof amendmentsto theChildren’sAct 1989andtheenactmentofthe Children(LeavingCare)Act 2000.Undersection78(1B), the Assemblycan,by regulation,extendthejurisdictionof theCommissionerto servicesprovidedforapersonover18yearsold undertheseActs.81 Linked to thispoint,oneshouldnotethat section78(6) makesPart V of the Act retrospectivein its application.TheCommissionermay exercisehis functionsin relationto eventsthat occurredpriorto commencementof the Act. This will enablehim to act both in respectof pastactsaffectingsomeonewho is still a child, andpastactsaffectingsomeonewho isnow adult. Inquiries suchas Waterhousehaveshownthat abusesmay continueovermanyyearsandalsothat theycanaffect thevictims for therestof their lives.The Assemblyhad intendedthat, to ensurethat the Commissioner’sefforts areconcentratedon the currentserviceprovision for children, the regulationswouldprovide that an adult must makea representationabouta pasteventwithin fiveyearsof ceasingto be a child, but this hasnot beendone.

Devolvedand non-devolvedissuesAlthough the centralpowersof the Commissionerwereextendedby Schedule2Bto the 2000Act to the areasof healthandeducation,they arelimited to devolved

79 CareStandardsAct, s 78(1), asamended.80 An amendmentwasmovedin the Houseof Lords to removethe word ‘ordinarily’ from the Bill so

that traveller children would definitely be covered.However,Lord Williams of Mostyn arguedthatthis wasunnecessarybecausetheywould comeundertheCommissioner’sjurisdiction if theyreceiveservicesprovided by bodiesin Sched2B and ‘as a matter of practice,we can think of very fewchildrenwho would receiveno servicesat all’. HL Deb col 742 3 April 2001.

81 n 40 above,Regulation21(1). Suchpowerswill come into effect when the relevantprovisionsofthoseActs are implemented.



issues. Regulations made under Schedule 2 paragraph 8 provide for theCommissioner to reportto theFirst Secretaryof theNationalAssemblyfor Walesratherthan to the WestminsterParliament.82 The legislationcould haveprovidedfor the Commissionerto report to Parliamenton non-devolvedissuesand to theAssemblyfor thosethat aredevolved.This would haveincreasedhis jurisdictionbut would haveblurred the lines of accountability.The result is that someareaswheretheCommissionercouldplay a vital role in safeguardingandpromotingtherightsof children,suchasin scrutinisingtheyouthjusticesystemandtheoperationof thesocialsecurityprovisionsfor youngpeople,areoutsidetheCommissioner’sjurisdiction.83 Instead,he will be confinedto making representationsaboutsuchmattersto the Assembly,undersection75A, asdiscussedabove.Clearly, to haveallowed him to exercisehis more specific power to monitor arrangementsforhandlingcomplaintsetcwould havecut acrossthedevolutionsettlement.It wouldalso have been a potential recipe for administrative chaos should he haveconcludedthatsucharrangementsneededto bechanged,butonly in Wales,or onlyfor Welshchildren.Childrenseekingto complainaboutaspectsof non-devolvedmatterswill thereforehave to continue to use existing processes(such as theprisonsombudsmanor the ParliamentaryCommissionerfor Administration),aswill children in England. Presumably, the power to consider and makerepresentations undersection75A will be sufficient to bring mattersof concernto light. But therewill bedifficult practicalissuesto resolverelatingto howhecanbemadeawareof suchmattersin thefirst place,sincehehasno jurisdictionundersection76 to ‘assist’a child in makinga complaintor representation aboutthem.Itis not surprising,therefore,that children’s charitieshavecontinuedto pressforfurther expansionof the Commissioner’s role, and for a Minister for Childrenatboth WestminsterandCardiff.84

Excludedand overlappingareasof jurisdictionIssuesof overlappingjurisdiction with other bodiesare commonconcernswhenlooking at ombudsmaninstitutions,andhavinga plethoraof different offices canlead to confusionfor thoseusing them.85 This seemsto be especiallyso for theChildren’sCommissioner,whoserole could potentiallyoverlapnot only with theotherombudsmaninstitutionsin Wales,86 but with thecomplaintsmechanismssetup by local authoritiesundersection26(3)of theChildrenAct 1989,andtheothermechanismsintroducedby theCareStandardsAct, in particulartheCareStandardsInspectorate(describedasa singleall Walesregulationsystem).87

82 Althoughcopiesof the reportwill be sentto bothHousesof Parliament.Seen 40 above,regulations14, 15 and16.

83 Seeeg the commentsby HelenMary JonesAM in the AssemblyRecord1 December2000.84 Seethemanifestopublishedby variouscharitiesentitledWales’Children:Our Future(TheGuardian,

1 March 2001).85 On the recentCabinetOffice review of the ombudsmansystemin England,which sought,inter alia,

to simplify the system,seeP. Colcutt andM. Hourihan,Reviewof the Public SectorOmbudsmeninEngland(London:CabinetOffice, 2000)andB. Thompson,‘IntegratedOmbudsmanry:Joinedup to aPoint’ (2001)64 MLR 459.RhodriMorgan,theFirst Minister,announceda similar reviewfor Wales.Seethe announcementmadejointly with the Secretaryof StatePaulMurphy on 20 March 2001.

86 Though note that the Welsh Administration Ombudsmandoesnot envisagea conflict of interestbetweenthe Children’s Commissionerand the Ombudsman.See evidenceto Health and SocialServicesCommittee,8 March 2001.

87 n 36 above.SeealsoAssemblyRecord25 October2000(JaneHutt), and<http://www.wales.gov.uk/subisocialpolicycarestandards/index.htm>.The Inspectorateis due to be fully operationalin April2002.



The potential for overlap is particularly relevant when looking at theCommissioner’s powers to considerindividual cases.The Regulationsprovidethat the Commissioner only examine casesof particular children where heconsiders that they raise matters of principle which have a more generalapplicationor relevanceto the rights and welfare of children than thosein thecaseat issue.Theyalsostatethat theCommissionerbe requiredto haveregardtowhetherthe casehasbeen,or is being,dealt with by other means,suchas localauthority complaintsmechanismsor the Care StandardsInspectorateand otherombudsman-typebodies.88 There is a dangerhere that the Commissionermaydeclineto takeon caseson theassumptionthattheycanbesatisfactorilydealtwithby other means.It will be importantthat he undertakea thoroughreview of themain mechanismsthat servicesalreadyhave in place to deal with thesecasesbeforedecliningtoo readily to do so himself.

Further,small,limitationson theCommissioner’s powersareprovidedin section77. First, he is not authorisedto enquireinto any matterthat is (or hasbeen)thesubjectof legalproceedings.This is a usualexclusionfor ombudsmen.89 However,theCommissionerwill beableto reportundersection75A on thenon-casespecificissueswhich may be raisedby a particularcase,for example,the functionsof asocialservicesdepartment.90 Section77(2) furtherprovidesthattheCommissioneris not authorisedto exerciseany function which is also exercisedby anotherprescribedpersonor body on a statutorybasis.The Assembly’saim is to avoidunnecessaryrestrictionson the Commissioner’s work and the Assemblyrightlypoint out that theremaybetimeswhenhewishesto investigatemattersthatcouldbe investigatedby other bodies.91 The AssemblyhasspecifiedCAFCASSunderthis section.92 CAFCASSprovidescourt servicesfor children involved in familyproceedings,including investigation of family circumstancesand reporting tocourtsand representationof children who are the subjectsof suchproceedings.Thesestatutory responsibilitiesare actually rather far removedfrom the mainthrust of the Commissioner’s role and he would arguably be preventedfromduplicatingthemby virtueof section77(1)in anyevent.It is thereforeunlikely thathe would have assumedthe kinds of advocacy and support functions thatCAFCASSofficers may fulfil.

Constitutionalframeworkof the Children’sCommissionerAs a public office holder with responsibility for monitoring the Assemblyandpublic bodiesin Wales, the Children’s Commissionershouldbe independentofthoseheis monitoringandreviewing.Therelationshipof theCommissionerto theAssemblyis complicated,reflecting the complexity of the devolutionsettlementitself.93 Ultimately, theCommissioneris responsibleto theAssembly,andit is theAssemblyto whomhereports.94 TheAssemblyalsohasa role in theappointmentof the Commissioner andthe settingof his budget.

88 n 40 above,Regulation6.89 Seeeg the ParliamentaryCommissionerAct 1967,Sched3 para6.90 Seethe commentsby BaronessFarringtonof Ribbleton,HL Deb col 784 3 April 2001.91 SeeChildren’sCommissionerfor Wales:Proposalsfor Regulations:A ConsultationPaper(National

Assemblyfor Wales,2001),para54.92 n 40 above,Regulation17.93 Seegenerally,R. Rawlings‘The New Model Wales’ (1998)25 Journal of Law and Society461.94 Seeeg CareStandardsAct 2000,s 75A and Sched2, para8, aswell as the Assembly’spowersto

makevariousregulations.



The provisionsconcerningappointmentanddismissalof the Commissionerarenotwithin theCareStandardsAct butareprovidedfor by Regulationpassedby theAssembly.95 The Commissioneris appointedfor a sevenyearfixed term which isnot renewable.Having a fixed lengthpostis essentialfor independence,ensuringasit does,that theCommissionerdoesnot seekto win thefavourof theAssemblyto secure re-appointment. But the Assembly itself is responsible for theappointment of the Commissioner,96 which might raise concerns as to hisindependence. Specifically, the Regulationprovidesfor appointmentby the FirstMinister (thoughhis functionsareto betreatedasthoseof theAssembly)only aftertakingaccountof (a) theadviceof a relevantcommittee,(b) theviewsof relevantchildrenasto anycandidatesinterviewedfor theappointment,and(c) theadviceofany selectionpanel,establishedfor the purposeof interviewingcandidates,as totheir suitability for appointment. A Children’s Commissioner AdvisoryAppointmentcommitteewasduly establishedto advisethe First Minister on theselectionof the first Commissioner.Any concernsaboutthe role of theAssemblyin the appointment of the Commissionerwere mitigated somewhat in theappointment of PeterClarke becauseof the proceduresfollowed. The post wasadvertisedand subject to open competitionand the papersand minutesof theAppointment Committee were published and available on the Internet. Therequirementfor theinclusionof childrenon theselectionpanel(seefurtherbelow)alsohelpedto ensurean impartial appointment.Nonetheless,the Commissioner’sindependencewould bebetterprotectedif theprovisionsfor his appointmentweresetout in the CareStandardsAct andcould thusonly be alteredfollowing properParliamentaryscrutiny. This is one areawhere the Act shouldhavebeenmoreprescriptive, rather than leave the detail of the appointment to Assemblyregulations.97

Anotherpotentialconcernfor theCommissioner’s independenceis thesettingofthe budget. The Commissionerhas to submit his estimatesannually to theexecutivecommittee(theCabinet)of theAssembly,which arethenlaid beforetheAssemblyas a whole, with suchmodificationsas the committeeseefit.98 Realconcernsareraisedfor theindependenceof theCommissionerif theAssembly,andmore specifically the Cabinet,can influence the scopeand extent of his workthroughhis budget.It is essentialthereforethat aswith the appointmentprocess,the budgetaryprocessis open and any modificationsmadeby the Cabinetareclearly identified.

The difficulty in securingthe independenceof office holdersin Wales,suchasthe Children’s Commissioner,stems from the constitutional arrangementsofdevolution.TheAssemblyis a bodycorporateandhenceactionstakenin its namearelegally takenby theAssemblyasa whole,evenif in practicetheyaremadebytheexecutive.Onealternativeto thecurrentarrangementsfor theappointmentandbudgetsettingof the Children’s Commissionerwould be to give a role to eithercentralgovernmentor theWestminsterParliament.99 Clearly,from theperspectiveof theAssembly,this is equallyundesirable,andwould beperceivedasproviding

95 n 10 above.96 CareStandardsAct 2000Sched2 para2 andthe Regulationmadeunderthe Act.97 Seen 40 above,and accompanyingtext. Note that the Welsh AdministrationOmbudsmanand the

Auditor General for Wales are both appointedby Her Majesty under the terms set out in theGovernmentof WalesAct 1998.

98 Seethe CareStandardsAct 2000Sched2 para6.99 This is thecasewith both theWelshAdministrationOmbudsmanandtheAuditor Generalfor Wales,

whoarebothappointedby HerMajesty.Thequestionthatthenarisesis onwhoseadvicedoessheact.



anopportunityfor centralgovernmentto ‘checkup’ on theAssembly.If therewerea clear split betweenthe legislatureand the executivein Wales,as there is inScotlandandWestminster, theappointmentof theCommissionerandthesettingofthe budgetcould be the responsibilityof the legislativebranch.This would betterprotecttheCommissioner’s independence,sincehewouldprimarily bescrutinisingthe executiveandnot the legislature.100

De facto, if not de jure, the Assemblyis increasinglyoperatingin a way whichdistinguishesthe executive from the legislature.For example,changesto theStandingOrdersto give the PresidingOfficer his own budgetandhenceincreasehis independence,and the practiceof the Cabinet issuing ‘government’ policypapers help to cement this split.101 In practice then, concerns about theindependenceof theCommissionermaybemisplaced.Nonetheless,evena formalsplit wherebythe Commissioner is reviewingandmonitoring the GovernmentofWales(the executive)and appointedby the Assembly(the legislature)doesnotaddressthepotentiallyproblematicinfluencetheexecutivecanhaveonhisbudget,and the easewith which the Regulationsconcerningthe appointmentof theCommissionercanbe alteredby the Assembly.

Engagementwith children and young people

Given the importanceattachedby the Assembly to the participation rights ofchildren, the successof the Commissionermay ultimately standor fall on theextentto which he translatesthe aspirationto give childrena voice into practicaleffect.Children’sparticipationin decision-making hasbeenanalysedasa ‘ladderof participation’by a numberof writers.102 For example,Aldersonrefersto a four-tier model:(1) beinginformed;(2) expressinga view; (3) influencingthedecision-making;and(4) beingthe main decider.103

This analysisis useful in making clear that communication with children is atwo-wayprocess;if childrenareto beableto expressa view, andthatview is to betaken seriously, they must be informed about relevant background facts,circumstancesandoptions.This is reflectedin Article 17 of the UN Convention,which requiresthatchildrenhaveaccessto information,andsimilarly in Article 3of the EuropeanConventionon the Exerciseof Children’s Rights,notedabove.The Assembly has noted that children and their representativescan alreadycomplainto theParliamentaryCommissionerfor Administration,but do not do sobecauseof lack of knowledge.104 An important aspectof the Commissioner’spowers, therefore, is contained in section 76(3), which empowers him, inconnectionwith his functionsundertheAct, to give adviceandinformationto anyperson.The provisionof informationto andfor childrenwill be a key part of theCommissioner’s role and he may be expectedto devotepart of his attentiontoproviding information to children,not only abouthis own office andpowers,butabouttheir rights.To this end,theAssemblywill requiretheCommissionerto take

100 Thoughnot in relation to secondarylegislation.101 Therehavealsobeenchangesto thenomenclature,eg,referenceis nowmadeto Assembly‘ministers’

ratherthan‘secretaries’andthephrase,‘the Governmentof Wales’or Cabinetis usedto describetheexecutive.

102 Seeeg R.A. Hart Children’s Participation: From Tokenismto Citizenship. (Florence:UNICEF,1992).

103 P. Alderson,YoungChildren’s Rights: Exploring Beliefs,Principles and Practice (London: JessicaKingsley, 2000)113.

104 Seeevidenceto HealthandSocialServicesCommittee,8 March 2001.



reasonablestepsto ensurethat childrenaremadeawareof his office andhow tocommunicate with him; andto makehim andhis staff availableon aslocal a basisas possible to children throughoutWales.105 He will also be required to payparticular attention to hearing from children in care, children from ethnicminorities,disabledchildrenandsocially/economically disadvantagedchildren.Itwill not be simple to determinehow bestall this is to be done.The issuegoesbeyondthe useof ‘child-friendly’ meansof access,suchasthe internet,CD romsandstory lines in TV programmes.106 The questionof how real ‘communication’,as a two-way process,is to take place betweenadults and children is a majorconcern for policy-makers,courts and lawyers dealing with children. It hasramificationsstretchingfrom theappropriateform of trial for juvenileoffenders,107

to the involvementof children in shapingarrangementsin the wake of parentaldivorce.108

An attemptto take children’s participationto the higher rungsof the ladder–expressinga view andinfluencingthe decision-maker – hasalsobeenmade.TheAssemblybrokenew groundby involving youngpeoplein the procedureusedtoappoint the first Commissioner.A group of children from acrossWales wasconvenedby the umbrellaorganisationChildren in Wales, and 17 youngpeoplewere selectedto spenda day with short-listedcandidatesand to determinetheirviews of the candidates.Two of the 17 then sat on the formal appointingcommittee.109 TheFirst Minister saidthatduringtheselectionprocesstherewas‘aremarkableunanimityof view betweenthechildrenandadultsandit blazesa paththat we canchoosefor future healthserviceappointmentsby using,for example,patient groups to assist in making appointmentsthat would have been madeconventionally’.110 However,the questionarisesasto what would havehappenedhadtherenot beensuchunanimity?Whetheroneregardsthe processastokenismor not, it certainly impressedthe Commissionerhimself, who subsequentlyannouncedthat he would involve children in the appointmentprocessof all hisstaff.111

The important issueof involving children in settingthe Commissioner’sworkagendahas been addressedin the Regulationsthrough a requirementon theCommissioner to take reasonablestepsto ensurethat ‘the views of [children inWales]aresoughtasto howtheCommissionershouldexercisehisor herfunctionsandasto the contentof the Commissioner’sannualwork programme’.112 He hasstated that he will establishan advisory committee to do this.113 Inevitably,however,since it is the Commissionerwho has the legal responsibility for his

105 n 40 above,Regulation12. Geographicallocation is always a sensitiveissue in Wales, and theCommissioner’sdecisionnot to havehis main office in Cardiff haspolitical significance.He willhavetwo offices, in SwanseaandNorth Wales.

106 Thereis in anycasea problemhere.TheCommissioner’soffice is unlikely to appearin anEastendersstoryline ashehasno jurisdictionin England.PerhapstheS4Cprogramme,Pamfi, Duw?(‘Why me,God?’) could partly fill the gap,thoughonly for angst-riddenWelsh-speakingteenagers.

107 T v UK: V v UK (2000)30 EHRR 121,ECHR.108 See,egtheattemptsto disseminateinformationto parentsandchildrenabouthowto talk to eachother

in the ill-fated ‘information meetings’which formeda major stepin the divorceprocessin the nowabandonedPartII of theFamily Law Act 1996:J. Walkeret al, InformationMeetingsandAssociatedProvisionswithin the Family Law Act 1996: Final EvaluationReport (London: Lord Chancellor’sDepartment,2001).

109 Seen 10 aboveandHC Deb col 250 16 January2001.110 SeeAssemblyRecord, 7 December2000.111 TheGuardian, 1 March 2001.112 n 40, Regulation12.113 TheGuardian, 15 December2000.



office, the involvement of childrencanonly reachthe third rung of the ladderofparticipation.Scopefor approachingthe top of the laddermay be greatershouldthe Assembly establisha broader strategy for children’s involvement in thepolitical process,perhapsthrough developmentof its existing initiative, LlaisIfanc/YoungVoice. This has alreadyestablisheda consultationand informationnetworkwherebyyoungpeoplemayuseadedicatedwebsiteto askquestionsaboutthe Assemblyandvoice their opinionsaboutits work. The websitealsoactsasaportal to other information sourcesfor children. Information leaflets about theAssemblyhavebeenproduced,anda seriesof eventsat which youngpeoplecandiscussissuesof concernwith Assemblyandlocal politicians.114

Concluding comments

The Commissioner’srole, functionsandpowersThe Children’sCommissionercandraw on immensegoodwill within Walesfromall sectorsof public life. His appointmentwas widely welcomedand supported.Moreover,the mannerin which the office hasbeenestablishedhasbeena veryclear exampleof the new politics operatingwithin a devolved system,whichadditionally is governedby a partnershiparrangementbetweentwo parties.All-party, or effectively all-party, support,smoothedthe passageof both piecesoflegislationandgivesthe Commissionera head-startin settlingdown in the officeandbeginningto operateunderhis powers.Thereis alsoconsiderablepride thatWales,for once,hasled theway in institutingasignificantinnovationin thepolicylandscape.But at the same time, this all puts enormous pressureon theCommissionerto be seento ‘deliver’ someform of ‘improvement’ in children’slives,onabudgetof only around£800Kperannum.115 Theimportantquestionsarewhat such improvementmight be thought to consist of, and how it is to bedelivered, and theseturn on how his role, powers and functions come to begenerallyunderstood.

In so far asthe establishmentof the Commissioner’s office is fundamentallyaresponseto the demandsof the Waterhouseinquiry, he may be expectedtoconcentrateon his ‘fire watching’ role of reviewingandmonitoringmechanismsfor handlingchildren’srepresentations,undersection73.Onemight expecthim toconcentrateat first on theregulatedchildren’sservices(asprovidedunderthe2000legislation)and then more graduallyon the Schedule2B services(of healthandeducation).Here,hemustnot treadon the toesof theCareStandardsInspectorate(or, onemightadd,theequivalentinspectoratesfor educationandhealth),andmustnotbeseenashaving,in thewordsof Lord Williams of Mostyn,a law enforcementrole.116 Successin this functionmightbemeasuredby theextentto whichservices’complaintsproceduresbecomemore intelligible andaccessiblefor children (andtheir families),thoughwhetherincreaseduseof suchprocesseswould bea signofsuccessis a morecomplexquestion.

TheGovernmentmadeit clearduringthepassageof the2001Act that it did notseethe Commissioner’s primary role asthat of an ombudsmanin the ‘complaintsman’ sense. Nor, as we have noted above, have most advocatesof the

114 Seen 14 above.115 The PartnershipAgreementwhich forms the basisof the coalition betweenLabour and the Liberal

Democratsmakesa commitmentof £800,000for the budgetof the Children’sCommissioner.116 HL Deb col 780 3 Apr 2001.



establishment of a Commissioner or the Assembly itself. One might thereforeexpect the Commissionerto adopt a rather cautiousapproachto investigatingindividual complaintsthat children bring to his attentionundersection74. Thiswould be a necessityin any event,given his limited budgetandstaff. However,acautiousapproachtowardscomplaintsinvestigationmayleadto aperceptionof theChildren’sCommissionerasa ‘toothlesswatchdog’.In addition,therequirementtoinvestigateonly where mattersof principle are concernedmay underminetheextentto which he cangive childrena true voice in mattersof concernto them.Thereis a dangerthat he may be seenonly to speakfor ‘Children’ asan abstractgroup,but not for childrenasseparateindividuals.Theextentto whichheprovidesassistanceand information to childrenusinghis powersundersection76 may bevery importantin guardingagainstthis.

It is in any casehard to identify how the Commissionerwill deliver on therequirementto be a ‘children’s champion’asdescribedby the First Minister. Theproblem of how to find out what children regardas important has beennotedabove.A greatdealis riding on the effectivenessof theCommissioner’s channelsof communicationwith children,bothformally throughhis consultativecommitteeand the participatory structures being consideredby the Assembly,117 andinformally throughthe complaintschildren bring to his attentionandotherwayshe establishesof talking and listening to them.Much may also turn on the skillsandpriorities of the individual commissionerwho is appointedto ensurethat therole doesnot fall into the trap of paternalism.Onewondershow far the role is infact inevitably going to be shaped by the disciplinary background of theappointee.118 If a lawyer had beenappointed,would the whole natureand toneof the commissioner’sway of working be different?This could be problematicifthe next Commissioneris a lawyer, or doctor,for example.On the otherhand,ifthis is not a risk, becauseof the close attention to detail evidencedby theAssembly’sRegulations,this may in turn suggestthat the Assemblyhasbeentooprescriptive.119 The Commissionermay find himself hamstrungin how he wishesto interprethis powersandfunctions.

Oncethe Commissioneris awareof children’sconcerns,the next problemwillbe how to transmit theseto policy-makersand the Assemblyitself. There is noprecedentto which he canturn within the British systemfor guidance,which is afunction previouslyexercisedby voluntary organisationsacting as lobbyists. Insomerespects,asnotedearlier,his role will be akin to that of the EOC or CRE(whichmaynotbeentirelyhappyanalogies).Of coursehemayfind theexperienceof Ombudsmenand Commissionersin other jurisdictions of some help. Inparticular,theymaybeableto adviseon how heis to makerobustrepresentationsaboutthefailingsandshortcomingsof thebodyto whichheis himselfaccountable,the Assembly,whenexercisinghis power to review the effect on childrenof theAssembly’sown actionsundersection72B. His independencefrom theAssemblybecomesabsolutelycrucial in this regard.

117 n 14 above.118 The first Commissioneris a social worker by training and waspreviouslythe director of Childline

Cymru.119 Was it, for example,really necessary to prescribe,in Regulation12(c), that the Commissionertake

reasonablestepsto ensurethat ‘the contentof any materialissuedby the Commissioner. . . which isintendedto be readby any oneor moreof suchchildren,takesaccount,so far aspracticable,of theage,level of understandingandusuallanguageof the intendedrecipient’?Could this not havebeenleft to his own commonsense?



ThedevolutiondimensionThis last point raisesthe otherobviousproblemin assessingthe Commissioner’srole. He mustoperatewithin the particulardevolvedsystemthat currentlyexistsfor Wales.The consequentialcomplexitiesthat circumscribehis jurisdiction andpowershavebeendiscussedabove.The most importantissuewill be how far hislimited power to deal with concernsabout non-devolvedmatters operatestoconstrain his effectivenessin delivering ‘real’ improvementfor children. Hisinability to makerepresentationsdirectto therelevantSecretaryof Statemaycometo beseenasa handicapon his effectiveness.It mayultimatelyshowthat thepostof Children’sCommissionerfor Walescannotform a particularlyusefulprecedentfor other parts of the United Kingdom, eachof which operateswithin a ratherdifferent constitutionalstructure.120 Indeed,shouldthis turn out to be the case,itmay revealasmuchaboutthesuccessof thedevolutionprojectitself asabouttheChildren’sCommissioner.

On theotherhand,it maybea real strengththat theoffice is in a small countrywith a small population.It may be much easierfor the Commissioner to makehimself knownto thegeneralpublic andto childrenin particular,andto makehisand their voice heardat Assemblylevel, in a country of three million people,comparedto the challengesthat would await a similar post-holderin England.Moreover,asthe Assembly’spolicy hasattemptedto makeclear throughout,theestablishmentof theChildren’sCommissionerfor Wales,shouldreally beseenaspartof a muchbroaderapproachto involving childrenasactiveparticipantsin thelife of the whole community. If this very ambitiousstrategyworks, it has thepotentialto changethe whole way that childrenareviewedandvaluedin Wales,andtheCommissionerwill nodoubtbehailedashavingplayedasignificantrole inbringing this about. If it fails, the Commissioner’s office may be dismissedashavingfailed to providethepanaceait wasexpectedto deliverfor all theills facingchildren in Wales. Such a judgment would be unfair and unwarranted.Theestablishmentof the office of Children’s Commissioner for Wales at leastrepresentsa bold attemptby one part of the United Kingdom to do somethingpositive to translateits obligationunderArticle 12 of the UN Conventionon theRightsof the Child into reality.

120 SeeHC Deb16 January2001col 295‘The Governmentwill considercarefully theWelshexperiencebeforedecidingwhetherhavinga Commissionerfor Englandwould addvalue’.



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