SCOTTISH EXECUTIVE

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Introduction

1. This memorandum is submitted by the Scottish Executive in response to a request from the Education, Culture and Sport Committee of the Scottish Parliament.

2. The Committee indicated from the time of its establishment an interest in the issue of consultation with children and respect for their rights. This is an area where over the past 5 years or so there have been notable developments through, for example, the Children (Scotland) Act 1995 and the appointment of a Minister for Children. But Ministers recognise that we should not be complacent about the adequacy of existing structures and safeguards. Some have suggested that children's rights and interests would be better secured with the appointment of a Commissioner for Children and the Committee has agreed to examine this idea. This memorandum sets out arguments considered by the Scottish Executive in examining this issue to date, against the background of recent developments.

Background: Children's Commissioner

3. A number of countries (with both unitary and devolved systems of Government) have set up Children's Commissioners or similar bodies. Outline details of some of these are set out in the Appendix. It is hard to identify a single common theme among them. They vary in status. Some are independent but some seem to be government agencies with "Commission" or something similar in their title. Some have been established by statute, others by executive action. Role and tasks vary considerably including review of individual cases in the role of ombudsman, lobby group on behalf of children and/or mechanism to report on the UN Convention on the Rights of the Child etc.

4. In his recently published report 'Lost in Care: the Report of the Tribunal of Inquiry into the abuse of children in care in the in the former county council areas of Gwynedd and Clwyd since 1974', Sir Ronald Waterhouse recommended the establishment of a Children's Commissioner for Wales whose remit would encompass monitoring, ombudsman and reporting type roles (all of which will be considered later in this document). All four political parties in the National Assembly for Wales have endorsed the idea of a Commissioner for Children in Wales. Its Health and Social Services Committee is now looking at this in more detail. The Scottish Executive's response to the issues raised in the Waterhouse Report - which go wider, of course, than just the case for a Children's Commissioner - will be published shortly.

Discussion

5. It must be right to seek to learn from other countries' experiences. But it is clear that the role of Children's Commissioners and similar appointments in those countries that have them vary considerably. Other institutional structures for children's issues also vary between countries. The unique children's hearings system in Scotland is an example of this. Reflecting the variety of international practice, those who have called for a Children's Commissioner in Scotland have envisaged such an appointment playing a variety of roles.

6. This memorandum looks in some detail at these potential various roles. While a Children's Commissioner may seem the right way forward in some of these circumstances, it might not in others. In the remainder, it may be that the present position can be improved upon through some other means.

Arguments for Children's Commissioner

7. A number of valid arguments have been advanced for having a Children's Commissioner. These include expertise, independence, and/or a voice for those actually or potentially discriminated against.

Expertise

8. On expertise there are certainly people with considerable experience in one or more areas of children's services. The issue may be more whether one person could genuinely claim expertise in the range of policy issues affecting children aged 0-18.

9. Expertise could be provided by a Children's Commissioner having appropriately skilled staff - in addition to support staff. If a key function of the position were to be seen as bringing outside expertise to bear, that would probably imply a larger staff requirement (and hence cost) than under some other models. Evidence from other countries suggests that setting up a Commissioner for Children may cost anything between £150,000-£620,000 per year. It seems unlikely that a unit with a Commissioner, two specialist staff and two support staff would cost less than £300,000. In addition a budget for research might be appropriate (see paragraph 12 below). However there may be scope for reducing the additional costs required to set up and fund such a unit. A Commissioner would replicate a number of functions for which other bodies already receive public funding: the extent to which this happened would depend on his or her precise role. If a Commissioner were to be appointed, it would make sense to re-examine funding for existing bodies - including voluntary bodies - to ensure that none of it was being duplicated. Relevant voluntary bodies receiving core funding from the Scottish Executive during 2000-01 include Children in Scotland (£134,608), the Scottish Child Law Centre (£58,066), Who Cares? Scotland (£60,816) and Childline Scotland (£43,286). In addition these and other bodies may receive separate funding for specific projects.

Expertise: Existing Sources

10. The need for such a source of expertise should also be seen against the background of existing sources.. Within the Scottish Executive Her Majesty's Inspectorate of Schools, the Social Work Services Inspectorate and the Chief Medical Officer and his staff provide considerable knowledge and experience in their fields. A range of statutory and voluntary organisations, universities, and think-tanks provide outside expertise. The ability of Scottish Parliamentary Committees to use expert advisers for specific enquiries would be a valuable way of mobilising existing expertise both in scrutiny and in making policy recommendations. It could be argued that bringing in sources of expert advice in this focused way may be more effective than relying upon one person or small group of people to cover the whole ground although the latter would provide a single easily recognised route for those seeking advice.

Expertise: Holistic Perspective

11. While there are a number of sources of expertise already available on children's issues, it is sometimes argued that these are not deployed holistically in development and implementation of policy. Steps have been taken over recent years to seek to address this:

    • The Children (Scotland) Act 1995 set in place the system of children's services plans drawn up by local authorities, but involving health boards, the voluntary sector and others in their compilation.

    • There is now a Minister for Children and Education with an overarching view of children's issues within the Scottish Executive. In addition, the Child Strategy Statement ensures that children's interests are considered in developing policy across the Scottish Executive. The Statement is being drawn to the attention of local authorities and others as something that might be adaptable by them to their own circumstances.
    • The Social Work and Schools Inspectorates are now both housed within the Scottish Executive Education Department and responsibilities for children's social work services, children and families policy, sport, community education, childcare and pre-school education have all been brought together within a single Children and Young People's Group within that Department. There are close contacts with other parts of the Scottish Executive whose work affects children eg the Civil Law Division of the Scottish Executive Justice Department in relation to family law.

    • As regards an integrated approach to children's health, the Planning and Priorities Guidelines issued to the NHS in Scotland for 1999-2002 stress that children and young people should be an important focus of the improving health and tackling inequalities effort and emphasise the importance of joint working with other agencies. Every Health Board in Scotland now has a lead Commissioner for Children's Services. In addition, the Innovation Fund for Children's Services will provide £9m over 3 years to develop innovative, combined and integrated child health services.

    We will continue to look for further ways in which an integrated approach to children's services can be achieved. As the examples above indicate, this is already an issue high up on the Scottish Executive's agenda.

Expertise: Providing information, reports and research into children's issues

12. If a Children's Commissioner were to be appointed, he or she could provide research and information on children's issues. The key question here is whether research or reports from this source would be markedly more valuable than from existing organisations in this field. It is arguable that, say, an annual report from a statutorily established Children's Commissioner would attract more publicity and carry more clout than one from a non-statutory body. The role of the Committee must also be looked at in this context. The Committee is itself well placed to comment and report on material issued by the Scottish Executive related to children's issues. These will include reports to be made on progress towards targets and milestones in relation to the Programme for Government and social justice, including the eradication of child poverty.

Expertise: Promoting the UN Convention and reporting on Government compliance to the UN Committee on the Rights of the Child

13. Another suggestion has been that a Children's Commissioner might promote the UN Convention on the rights of the Child and report on Government compliance with it. The United Kingdom (like all other countries except the United States of America and Somalia) is a signatory to the UN Convention on the Rights of the Child. There is no court that enforces adherence to its terms in the same way as for the European Convention on Human Rights. But the UK Government has to submit a report on compliance to the UN Committee on the Rights of the Child every 5 years. The UN Committee then offers comments on this. The Scottish Executive has publicised the UN Convention through, for example, the leaflet 'The UN Convention on the Rights of the Child: A Guide for Children' commissioned from the Scottish Child Law Centre and distributed widely to schools and others. There is also a UK National Committee for the United Nations Children Fund (UNICEF), much of whose time is spent in promoting the UN Convention. It receives grant funding from the UK Government. In its response to the 1^st UK Report on the UN Convention, the Committee suggested that the UK Government should establish a permanent monitoring mechanism on compliance with the Convention. It seems unlikely that this task alone, if thought necessary, would justify establishing a Children's Commissioner. But it might be combined with other duties. Equally, one could imagine a Parliamentary Committee or other mechanism looking at this subject at regular intervals.

Independence

14. Other things being equal, the Executive's policy is to minimise the number of "Quangos" with their more indirect accountability, in favour of the more direct accountability of Ministers to Parliament and, ultimately, the electorate. In other words Ministers owe their powers to a democratic process which provides legitimacy for decisions. A Commissioner would probably owe powers to Ministerial appointment but not be part of the Executive. It is therefore suggested that the simple fact of independence is not in itself a strong enough argument for a Commissioner; there must be other arguments to balance the loss of direct accountability.

Independence: Role of Parliament

15. That leads on to the role of the Parliament, validated by democratic election, and its committees, as the foremost source of independent scrutiny of the Executive.
16. It is not really for the Executive to comment on the role of the Parliament. But to give a full picture it seems necessary to say at least something about its relation to children. First, the simple fact of having a Scottish Parliament considerably increases the degree of scrutiny to which the Executive is subjected, on children as on other issues. The ability to contact MSPs should help children, among others, in making their views heard. The 'Put it to your MSP' initiative set up by the Educational Institute of Scotland and UNICEF for MSPs to hold surgeries for young people is relevant here.

17. The Education, Culture and Sport Committee specifically scrutinises the portfolio of the Minister for Children and Education. As the Minister himself has an overview of all children's issues, the Committee will be well placed to take a wide view. There are, however, other committees with an interest in children's issues, such as Health and Community Care, and Social Inclusion, Housing and Voluntary Sector. In addition there is a Cross-Party Group in the Scottish Parliament on Children.

Independence: Scrutiny of Specific Cases

18. Independent scrutiny of specific cases is at present largely covered by the range of ombudsmen. Their role is mainly limited to dealing with complaints from individuals that they have suffered injustice because of maladministration, although the Health Service Ombudsman can also deal with complaints about clinical care. Complaints to the Parliamentary and Scottish Parliamentary Ombudsmen must be referred by an MP or MSP respectively on behalf of the aggrieved person, who could potentially be a child. The Local Government and Health Service Ombudsmen can accept complaints directly from the aggrieved person. (In all cases considered by ombudsmen there is an expectation of having exhausted other means of complaint first.)
19. While we have no evidence that children's interests are inadequately dealt with by the existing range of ombudsmen, it is possible that a child might find these processes hard to fathom - particularly if without any or adequate parental support. If this were found to be the case, a Children's Commissioner acting as a focus for all cases involving children might be one way forward. Consideration would need to be given to the scope of his or her jurisdiction. Would he or she have sole responsibility for dealing with such cases? Investigating complaints of maladministration is a specialised job in which the existing ombudsmen have accumulated considerable experience and expertise. It might therefore be more appropriate for the Children's Commissioner's role to be simply as a link between the child and the ombudsmen who would continue to carry out the investigations. Other questions that may need to be considered include - how easy would it be to distinguish cases involving children? would cases only be accepted from children or also from parents or other representatives?
20. Although a Children's Commissioner might address any shortcomings that might be identified with current ombudsman arrangements, the creation of a separate office may not be the only or the best way forward. One could imagine, for example, a 'virtual' children's ombudsman whereby a single telephone number/address/e-mail point, well publicised in media and attractive to children, provided advice on taking up complaints and a gateway to the various ombudsmen. The Scottish Parliamentary and Health Service Ombudsmen already share an address and telephone helpline.

21. The Executive will shortly be issuing a consultation paper on the Review of Public Sector Ombudsmen in Scotland. Amongst the issues it will discuss are various proposals for improving the accessibility of the Ombudsmen, eg removal of the MSP filter for complaints to the Scottish Parliamentary Ombudsman; and the establishment of a one-stop shop combining the offices of the Scottish Parliamentary, Local Government and Health Service Ombudsmen. The paper could be extended to include specific proposals relating to complaints by children.

Independence: Looked After Children etc

22. Particular concerns about children's rights arise in the context of looked after children. The current pre-legislative consultation paper on Regulating Care and the Social Services Workforce sets out the Executive's intention to establish the Scottish Commission for the Regulation of Care (SCRC) and the Scottish Social Services Council in 2001. These will have a considerable impact in safeguarding children's interests and, in particular, in ensuring independent scrutiny of care for children. There may be scope for appointing a Children's Rights Director within the new Commission. This is the approach being taken forward in England, where a Children's Rights Director will be appointed as part of the National Care Standards Committee. (The Committee, which will have a similar role to the SCRC, is due to be set up in 2002 by the Department of Health.) In addition, local authorities have been funded to establish a network of advocacy services through Who Cares? Scotland and others for children in residential and foster care. These reforms need to be taken into account in considering whether a Children's Commissioner could add further value.

Advocacy

23. There is also an argument that children need an advocate. This could be to counter their absence from democratic participation because of age and/or to counter or challenge cultural assumptions about children's views or capacities. The latter has some similarity to the case for the Equal Opportunities Commission or the Commission for Racial Equality. But there are differences. These two Commissions were set up in legislation which also made illegal specific forms of discrimination on grounds of gender or race, made it possible to seek redress for this from the courts or an employment tribunal, and gave the Commissions a function of monitoring how this legislation was applied in practice and of providing assistance where people wished to bring a case on these grounds.

24. Although the Children (Scotland) Act 1995 does include some broad rights for children to be consulted on matters of concern to them, these rights may not lend themselves to redress through the courts in the same way as, for example, being turned down for a job on grounds of race where there will be a clear monetary consequence. That said, the two Commissions do range more widely, for example in encouraging good practice and looking more broadly at policy. Here one can see a clear analogy with work that could be carried out with a children's focus - and which, indeed, organisations such as Children in Scotland already carry out, albeit on a non-statutory basis.

Advocacy: Taking test cases and initiating legal action on behalf of children

25. The role envisaged here is similar to that of the Commission for Racial Equality and the Equal Opportunities Commission (which can initiate legal proceedings in their own right). There may be something in this. Although there have already been notable developments in the law relating to children, for example over corporal punishment in schools following an ECHR case, it seems intuitively possible that children's legal rights may sometimes be neglected given the lesser probability of them having recourse to legal action (although children under 16 can apply for legal aid and instruct solicitors in connection with any civil matter, where they have a general understanding of what it means to do so; parents can also act on their children's behalf). It is worth adding that the EOC and CRE work in the children's field where relevant to their core duties.

Advocacy: Children's Hearings

26. This also needs to be seen in the context of the children's hearing system. This combines the principles of child welfare and juvenile justice and has implications for any scrutiny and advocacy role of a Commissioner. Around 14,000 children are referred to hearings each year. The creation of a Commissioner could therefore risk overlap with the statutory functions already exercised by children's panels. If a Commissioner were to have a specific advocacy role, particularly for the vulnerable and damaged children and young people appearing before hearings, this could introduce renewed pressures for legal representation within the system. The relative informality of hearings is generally seen as one of the strengths of the system.

Conclusion

27. This memorandum has sought to outline the possible role of the Children's Commissioner, the arguments for and against such an appointment and the arrangements already in place to ensure the interests of children are safeguarded, promoted and taken properly into account. It does not aim to come to an overall conclusion. But key issues for consideration might be:

• is there more that ought to be done that is not being done now to protect and promote children's interests, collectively or individually?
• if yes, is a Children's Commissioner the best way forward? Are there alternative approaches which might be better or equally effective?
• what added value might a Children's Commissioner bring? What specific roles would a Children's Commissioner perform?
• what would or might have to change if we had a Children's Commissioner?
• what roles currently undertaken by voluntary organisations would be taken over by a Commissioner?
• to whom would a Commissioner be answerable?

Scottish Executive
May 2000

• Established by statute in 1996. Funded direct by Government (annual budget £620K).
• Functions - monitoring / review of services; advising Minister on standards for child care; receiving & investigating complaints; monitoring procedures for handling complaints; co-operating with police in investigating offences involving children & on sexual abuse, pornography/sex tourism; establishing tribunals to hear appeals; inquiring into matters relating to children's services. No formal legal powers.

• Established by statute in 1983. Funded as part of the Office for Families and Children within the South Australia Government's Department of Human Services (annual budget £120K).
• Functions - policy review & development; advice to Government; research & monitor interests of children; community & professional education; advocacy services for children; promoting UN Convention.

• Established 1991. No legal basis. Budget is subsumed within the Federal Ministry.
• Functions - promoting a children-friendly society; raising awareness of children's issues; collaborating with regional ombudsmen, public & private welfare organisations; undertaking individual casework. No legal powers.

• Established by decree in 1991 to preserve the rights and interests of all children & young people.
• Function - provide information about children's rights; control whether relevant laws and rules are correctly applied; make proposals to the Executive to adapt rules currently in force; receive information & complaints.

• Established 1998. Annual budget £300K.
• Functions - ensure implementation of UN Convention; research living conditions of children; dealing with complaints & acting as Ombudsman; informing Government & Parliament of need for new laws.

• Established 1996: Commissioner by Order in Council; Advocate's Office by statute.
• Functions of Commissioner - monitor services for children; monitor complaint and review processes; follow up unresolved complaints & review all children's deaths.
• Functions of Advocate's Office - ensure that rights & interests of children, youth & families are heard.

• Established by Order in 1994. Members appointed by Minister of Social Affairs. Funded by Government (annual budget approximately £250K).
• Functions - advise on matters relating to children's issues in light of the UN Convention. No formal legal powers.

• Established in 1988 as a subcommittee of the Committee for the Family, Elderly, Women and Youth of the Bundestag. Funded as part of the Bundestag.
• Essentially a lobby group for interests of children across Government. Principal function is to examine the effect of Federal initiatives & regulations on children & propose amendments/improvements.

• Established 1991 as part of Office of the Deputy Director General of the Ministry of Education, Culture and Sport. Annual budget £100K.
• Functions - propose changes to policies, guidelines & means of enforcement & monitoring in relation to pupils rights; respond to complaints & crises by pupils & parents; advise & assist pupils & education workers; increase awareness of pupils' rights; improve policies of Ministry of Education; help pupils defend their rights.

• Established by statute in 1990. Annual budget £270K.
• Functions - details unavailable - has been criticised for lack of independence.

• Established by statute in 1981. Funded by Parliament through Department of Family and Children Affairs (annual budget approximately £550K).
• Principal functions - protect interests of children in all fields; ensure that legislation on protection of children's interests is observed; propose measures to strengthen children's safety; propose measures to solve or prevent conflicts between children and society; provide information on children's rights. No executive powers.

• Established by statute in 1993. Funded by Department of Social Affairs (annual budget £570K).
• Functions - consider legislation and ensure all legislation follows UN Convention; take initiative to make changes which safeguard interests of children; represent children in general debates; propose changes to legislation; co-ordinate precautionary measures to safeguard children; provide information on UN Convention.

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