Independent Children’s Rights Institutions

All independent institutions for children share some of the above aims, and so it is possible to identify some common factors likely to make them effective:

The United Nations Handbook on National Human Rights Institutions suggests the following "effectiveness factors":

• independence;
• defined jurisdiction and adequate powers;
• accessibility;
• co-operation;
• operational efficiency;
• accountability.

The "Paris Principles" on the status of national human rights institutions provide a basic framework for the establishment of an independent office to promote children’s human rights. Institutions should have:

• the competence to promote and protect human rights;
• as broad a mandate as possible, set forth in a constitutional or legislative text, specifying the institution’s composition and sphere of competence;
• responsibilities to provide to parliament, government and other competent bodies opinions, recommendations, proposals and reports on any matters concerning the promotion and protection of human rights - either on request or through the institutions' power to consider matters without any higher referral;
• the right to publish opinions and reports independently, including commenting on the current state of the law and developments affecting human rights and any violations;
• general duties and necessary powers to enable the institution:
• to promote and ensure harmonisation of national legislation, regulations and practice with the international human rights instruments to which the state is a party, and their effective implementation;
• encouraging ratification or accession to these instruments;
• to contribute to the reports which states are required to submit to UN bodies and committees and to regional institutions, and where necessary to express an opinion on the subject, "with due respect for their independence";
• to co-operate with UN and UN-related organisations and regional and national human rights institutions;
• to help formulate programmes for teaching and researching human rights and take part in them in schools, universities and among professionals;
• to publicise human rights and efforts to combat discrimination, by increasing public awareness - particularly through information and education and use of the media.

Methods of operation must include rights to:

• freely consider any questions falling within the institution’s competence;
• hear any person and obtain any information and documents necessary to assess situations falling within the institution’s competence;
• speak out freely through the media.

The Principles propose particular guarantees of independence:

• powers to enable effective co-operation to be established with (or in the case of a Commission with members, through the presence of) representatives of relevant NGOs, trade unions, concerned social and professional organisations (for example associations of lawyers, doctors, journalists and eminent scientists); trends in philosophical or religious thought; universities and qualified experts; Parliament; government departments (but if they are included, they should participate in deliberations only in an advisory capacity);
• adequate funding to enable the institution to have its own staff and premises, in order to be independent of Government "and not subject to financial control which might affect its independence";
• appointment of members of the institution by an official act specifying the duration of their mandate.

(There are additional principles for institutions which are empowered to hear and consider individual complaints and petitions).

The definition of these institutions is that they are independent of government. But the concept of independence is inevitably relative not absolute. Parliament or government generally provides most funding and there must be accountability. And to be influential, these institutions need to have a close but not a dependent relationship with government.

A detailed section in the UN Handbook on National Human Rights Institutions discusses key components of independence. The following section is drawn from the Handbook and from the experiences of developing independent offices for children:

• Establishment by legislation: many, but not all, independent institutions for children have been established through an act of parliament, setting out their function and duties, status, powers, methods of appointment and so on. Defining the aims of an institution in relation to the Convention on the Rights of the Child provides it with the authority of international law, and accentuates independence.

  The Handbook suggests: "Ideally a national institution will be granted separate and distinct legal personality of a nature which will permit it to exercise independent decision-making power. Independent legal status should be of a level sufficient to permit an institution to perform its functions without interference or obstruction from any branch of government or any public or private entity. This may be achieved by making the institution directly answerable to parliament or to the head of state";

• Operational autonomy: institutions must be able to set and pursue their own agenda, and conduct their own affairs independently of any other individual, organisation, department or authority. While such institutions need to be consulted by government, and are likely to be asked to do particular projects for government, government should not be able to dictate the office’s agenda, or overcrowd it to prevent it developing its own priorities and being able to respond quickly to new situations.

  Similarly, reports and recommendations from an institutions should not normally be subject to review or change by any other body.

• Financial autonomy: the institution needs to be financially capable of performing its functions, and as far as possible finance of the office should be removed from political control, and be guaranteed for a reasonable period. For financial issues, the institution should be accountable not to government but to parliament. The institution should also be free to raise additional funds from non-government sources.
• Method of appointment and dismissal of key staff: the process should be transparent, as far as possible independent of government, preferably by a representative body such as parliament and it should involve independent bodies including NGOs concerned with the human rights of children. "Any institution can only ever be as independent as the individuals of which it is composed. The granting of legal, technical and even financial autonomy to a national institution will be insufficient in the absence of specific measures to ensure that its members are, individually and collectively, capable of generating and sustaining independence of action" (Handbook, page 11).

  The following appointment issues need to be addressed, preferably in legislation:

  • process of appointment;
  • criteria for appointment (nationality, profession, qualifications, etc.);
  • duration for appointment, and whether key staff may be re-appointed (normally a fixed-term appointment, not too short, with the possibility of an additional term);
  • who may dismiss key staff and for what reasons (power to dismiss should only be vested in Parliament or at an equivalently high level, and only for very serious reasons);
  • privileges and immunities (for example, immunity from prosecution when performing official duties).

UN Guidelines for the Prevention of Juvenile Delinquency (the "Riyadh Guidelines"), adopted in 1990, propose that:

"Consideration should be given to the establishment of an office of ombudsman or similar independent organ, which would ensure that the status, rights and interests of young persons are upheld and that proper referral to available services is made..." (para. 57)

The appointment of independent offices has been strongly promoted by the Council of Europe, whose "European Strategy for Children" (1996) proposes the appointment of :

"a commissioner (ombudsman) for children or another structure offering guarantees of independence, and the responsibilities required to improve children’s lives, and accessible to the public through such means as local offices".

The Strategy puts all its recommendations in the context of the Convention on the Rights of the Child. (Recommendation 1286 on a European Strategy for Children, adopted by Parliamentary Assembly of the Council of Europe, January 24 1996).

In most countries non-governmental organisations (NGOs) play a key role as independent advocates for children, or for particular groups of children. Their role is recognised in the Convention on the Rights of the Child, and by the UN Committee on the Rights of the Child.

Ratification and promotion of the Convention has led to a rapid growth in the numbers and influence of NGOs promoting children’s rights; in many European countries coalitions of the NGOs working for children’s rights have been formed. NGOs’ national role is not diminished - although it may be changed - by the existence of an independent office for children established by parliament. Where such an office exists, it is likely to develop a close and mutually supportive relationship with NGOs.

In some countries non-governmental organisations (NGOs) have styled their advocacy for children as ombudsman activities (and "ombudswork" for children is a broad term which has been adopted by some commentators to cover all aspects of child advocacy, both governmental and non-governmental).