Establishing complaints mechanisms trhough law

 

Establishing complaints mechanisms through law

The need for safe, well-publicized, confidential and accessible mechanisms for children to report incidents of violence was a serious area of concern addressed by the UN Study on Violence against Children. The Study recommended the establishment of independent national institutions entrusted with the promotion of children’s rights, as well as of other mechanisms, such as telephone helplines which children can access to report abuse, speak to a trained counsellor in confidence, and ask for support and advice.

In order to comply with the Convention on the Rights of the Child, every State needs an independent human rights institution with responsibility for promoting and protecting children’s rights. These institutions have various names, including ombudsperson, child commissioner, child advocate, child rights or human rights commission in English; défenseur des enfants or médiateur in French; defensoría or procuraduría in Spanish; and many other designations in other languages.

Although such an institution can come in many forms, it should be able to monitor, promote and protect children’s rights independently and effectively. The legislation creating independent human rights institutions for children should include provisions setting out specific functions, powers and duties relating to children that are linked explicitly to the Convention on the Rights of the Child and its Optional Protocols.

One of the most important of these is the power to undertake investigations into any situation involving a violation of children’s rights. In order to do this effectively, independent human rights institutions for children should have all the necessary resources and powers, including the power to hear any person and obtain any information and document necessary for assessing complaints. These powers should include the promotion and protection of the rights of all children under the jurisdiction of the State party without discrimination of any kind and should encompass not only complaints regarding the actions of the State but also all relevant public and private entities.

Independent human rights institutions for children should be geographically and physically accessible to all children. They should proactively reach out to all groups of children, in particular the most vulnerable and disadvantaged.

Check the Circle of independent human rights institutions for children!

Examples of complaint mechanisms in the law

Excerpt from the New Zealand’s Children’s Commissioner Act, 2003:

Section 3 – Purposes

The purposes of this Act are— […]

(c) to confer additional functions and powers on the Commissioner to give better effect in New Zealand to the United Nations Convention on the Rights of the Child:

(d) to require the Commissioner to have regard to the Convention [on the Rights of the Child] when carrying out the Commissioner’s functions and powers:

(e) to give the Commissioner express powers to obtain information and documents, and to apply for access to court records, in order to enhance the effectiveness of the Commissioner’s investigative and inquiry functions: […]

Section 11 – Matters to which Commissioner must have regard in exercising functions or powers

In performing or exercising the Commissioner’s functions or powers under this Act, the Commissioner must have regard to the following matters:

(a) the Convention [on the Rights of the Child]:

(b) the principle that the Commissioner should give serious consideration to the views of children and take those views into account:

(c) the principle that the Commissioner should recognise the diversity of children in New Zealand: […]

Section 12 – General functions of Commissioner

(1) The general functions of the Commissioner are—

(a) to investigate any decision or recommendation made, or any act done or omitted […]in respect of any child in that child’s personal capacity:

(b) to promote the establishment of accessible and effective complaints mechanisms for children and to monitor the nature and level of complaints: […]

Excerpt from Ireland’s Ombudsman for Children Act, 2002:

Section 6 – Performance of functions

(1) The Ombudsman for Children shall be independent in the performance of his or her functions under this Act.

(2) The Ombudsman for Children shall, in the performance of his or her functions under [the sections of the Act relating to the investigation of complaints] have regard to the best interests of the child concerned and shall, in so far as practicable, give due consideration, having regard to the age and understanding of the child, to his or her wishes.

Excerpt from Greece’s Law No. 3094/2003 relating to the Ombudsman and other provisions:

Article 3: Jurisdiction

The Ombudsman has jurisdiction over issues involving services of: a) the public sector, b) local and regional authorities, c) other public bodies, state private law entities, public corporations, local government enterprises and undertakings whose management is directly or indirectly determined by the state by means of an administrative decision or as a shareholder. […] For the protection of children’s rights the Ombudsman also has jurisdiction over matters involving private individuals, physical or legal persons, who violate children’s rights, pursuant to the terms and conditions laid down in Article 4. […]

Article 4: Investigation Procedure

The Ombudsman undertakes the investigation of any issue within his jurisdiction, following a signed complaint submitted by any directly concerned person or legal entity or union of persons. The Ombudsman may also receive complaints from any directly concerned child, or person entrusted with parental care or relative by lineal or collateral descent down to the second degree, the child’s guardian or provisional guardian, or any third party having direct knowledge of the infringement of the child’s rights. For the implementation of the provisions of this Law, […]a child [is considered as] any person who is not over the age of eighteen
The Ombudsman may also proceed to the investigation of cases on his own initiative. […]