I am delighted to give that assurance to the noble Lord. Thirdly, including an explicit reference to initiating and intervening in legal proceedings would raise expectations that the commissioner will take up legal challenges on behalf of any individual or group who brings a matter to the commissioner’s attention. The Office of the Children’s Commissioner is clearly not resourced to operate in that way, and it could end up wasting time defending decisions not to take up particular cases.
I turn now to Amendment 59F, also tabled by the noble Lord, Lord Ramsbotham, which would add categories of children—–namely, children in custody, children who have been trafficked and unaccompanied migrant children—to the definition at new Section 8A, which is inserted by Clause 93. In the Government’s view, it is not possible to define precisely in legislation every interaction that the commissioner and his or her staff might have with children; nor would we want to. What the legislation seeks to do, therefore, is to put down some clear markers that are designed to achieve particular objectives.
First, as noble Lords will be aware, there is a provision that prevents the commissioner investigating individual cases. This is specifically to avoid the commissioner getting swamped with individual casework at the expense of his or her strategic role. John Dunford’s report was clear that where commissioners had taken on a full ombudsman’s role, it had reduced their impact.
Secondly, as recommended by John Dunford, we have included provisions in the legislation that ensure, as far as possible, that the support provided to children within the Children’s Rights Director’s remit can and will continue under the new arrangements. Beyond that, we do not wish to try to enshrine in legislation what level of support the commissioner should provide to individual children who may contact the commissioner or his or her staff. It is inevitable, as now, that children will contact the commissioner through, for example, the OCC’s website. Where they do, we of course expect the commissioner to offer appropriate help.
In many cases, that help would involve signposting the child to information or support. In others, it would involve helping the child to access an existing complaints or advocacy service, while in other cases it may involve the commissioner providing support that is similar to the “advice and assistance” function that the CRD currently provides. Ultimately, if the commissioner felt that the child’s case highlighted a matter of wider strategic importance, he or she could conduct an investigation into that issue. Our view, therefore, is that it should be for the commissioner to determine what level of support to provide to children when they approach him or her. That is why we do not wish to describe how the commissioner should interact with children in legislation, beyond the two exceptions mentioned earlier.
I do not therefore believe that it is necessary to extend the definition at Section 8A to include the groups of children that the noble Lord proposes. The commissioner will have wide-ranging functions and powers to give him or her the flexibility to support children as he or she deems appropriate in the exercise of the primary function of promoting and protecting children’s rights. Many of those children will, in fact, already be covered by Section 8A because they are living away from home and/or are in receipt of local authority services. For example, children on remand to youth detention accommodation are treated as looked-after children.
For children in custody, there are already adequate complaints, grievance and disciplinary systems in place, which the noble Lord will be familiar with, in young offender institutions, secure training centres and secure children’s homes to enable young people to resolve issues relating to their detention. Advocacy services are also provided in YOIs, STCs and SCHs to assist young people in navigating the complaints, grievance or disciplinary systems. Advocacy is provided by Barnardo’s in young offender institutions and secure training centres, with local arrangements in place in secure children’s homes. If a young person is not satisfied with the outcome of a complaint, they are able to refer the issue to the Prisons and Probation Ombudsman, the statutory monitor or the local authority.
Not extending the advice and assistance role to children in custody does not mean that the commissioner cannot investigate matters within the juvenile secure estate as part of a wider investigation. In fact, the commissioner has already done so—for example, with the commissioner’s inquiry into the support available in the youth justice system for young people with mental health issues. So far as the Children’s Commissioner looking at new SEN support in custody is concerned, the key plank of these reforms is to make it clear that the Secretary of State cannot direct the Children’s Commissioner. However, if he or she wishes to consider the SEN reforms, he or she is of course able to do so.
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The introduction of guardians for trafficked children alongside those already working in the interests of the child is not the most effective way to tackle local problems. Where local systems are not working as they should to support the best interests of trafficked children, we need to address the causes of any problems, not bypass them. However, the Home Secretary has announced the trial of independent advocates to provide specialist support to child victims of human trafficking, and we look forward to seeing the results of this in due course.
The government amendments in this group, Amendments 59C, 59D, 59E and 64B, respond to concerns that were raised by noble Lords in Committee. In Committee we had an interesting debate about how the Bill defines children’s rights, specifically those rights included in the UNCRC. I set out that our expectation is that the commissioner should consider all children’s rights—those set out not only in the UNCRC but in domestic law and other international treaties that the UK has ratified. However, I recognise that the UNCRC is
central to the children’s rights agenda, so I am proposing through Amendment 59C that the commissioner should have “particular” regard to the UNCRC when considering what constitutes children’s rights. This clearly emphasises the importance of the convention to the discourse on children’s rights, but still allows the commissioner to consider rights contained in other international treaties or domestic law.
In Committee there was a broad consensus that children’s views should influence the work of the commissioner. However, it was clear that some noble Lords wanted to add further provision that would require the commissioner to summarise in the annual report to Parliament how he or she had consulted and subsequently taken account of children’s views. Having considered this further, I have decided to table Amendments 59D and 59E to this effect, which I hope will be welcomed. In addition, I have tabled a technical amendment, Amendment 64B, that will allow the provisions relating to the commissioner to come into effect on 1 April of this year. This will allow the reformed OCC to come into effect from the start of the financial year, and ensure that the transfer of staff and other assets from the office of the Children’s Rights Director can go ahead on that date as planned.
As I set out in response to the amendment of the noble Baroness, Lady Massey, I hope that the generally permissive nature of the Children’s Commissioner provisions in the Bill, the assurances that have been given and the changes that we plan to make to the framework agreement have combined to provide noble Lords with reassurances that the independence of the commissioner is strongly protected. I therefore urge the noble Baroness to withdraw Amendment 59A. I have also set out the reasons for resisting the amendments tabled by the noble Lord, Lord Ramsbotham, and hope that he understands the rationale for doing so and is persuaded not to press them. I hope that noble Lords will also support the government amendments that I have set out.