Creating a children’s champion for Wales? The Care Standards Act 2000 (Part V) and the Children’s Commissioner for Wales Act 2001

AuthorKathryn Hollingsworth,Gillian Douglas
Date01 January 2002
Publication Date01 January 2002
DOIhttp://doi.org/10.1111/1468-2230.00366
LEGISLATION
Creating a children’s champion for Wales?1The Care
Standards 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 interests
of children. The use of a ‘children’s commissioner’ or ombudsman has come to be
regarded as one of the most effective means of ensuring that those interests are
protected. Many states have accordingly established such an office as part of their
response to meeting their obligations under the Convention to promote its
principles and provisions.3In the United Kingdom, calls for the creation of a post
of 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 United
Kingdom, has now been created under Part V of the Care Standards Act 2000 and
the Children’s Commissioner for Wales Act 2001.5The office was established
following recommendations in the Waterhouse report6and a request to the
Westminster Government from the National Assembly for Wales. The Care
Standards Act, which at the time was before Parliament, was used rather than
waiting for space in the parliamentary timetable for a dedicated piece of legislation
because of the perceived urgency in establishing the post. The Children’s
Commissioner for Wales Act amends the Care Standards Act and extends the role
ßThe 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 anonymous
referees 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 National
Assembly for Wales. See eg the First Minister, Rhodri Morgan AM, Assembly Record 7 December
2000.
2 The United Kingdom ratified the Convention in December 1991 and it entered into force in January
1992.
3 eg there are children’s commissioners or ombudsmen inter alia in Norway (which was the first to
establish 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 Guardian
there are 18 children’s commissioners or ombudsman around the world. The Guardian 29 August
2000, ‘Our Young People Need a Champion to Protect Them’. See also M. Seneviratne, ‘Ombudsmen
for Children’ (2001) 23 JSWFL 217, who compares the office established by the Care Standards Act
2000 with similar posts elsewhere.
4 M. Rosenbaum and P. Newell, Taking Children Seriously: a Proposal for a Children’s Rights
Commissioner, (London: Calouste Gulbenkian Foundation, 1991).
5 The Care Standards Act 2000 received the Royal Assent on 20 July 2000. The commencement date
for the provisions of the Act relating to the Children’s Commissioner was 13 November 2000. Royal
Assent for the Children’s Commissioner for Wales Act was given on 11 May 2001, and the
commencement date is 26 August 2001.
6Lost in Care: Report of the Tribunal of Inquiry into the abuse of children in care in the former county
council areas of Gwynedd and Clwyd since 1974, HC 201 (2000).
and remit of the Commissioner. The first Commissioner, Peter Clarke, was
appointed in December 2000, and took up his duties on 1 March 2001.
These two statutes, and the secondary legislation made under them, provide for a
number of firsts. The Children’s Commissioner for Wales is the first children’s
‘ombudsman’7to be established in the United Kingdom;8the 2001 Act is the first
Wales-only piece of primary legislation to be introduced since the establishment of
the National Assembly for Wales in 1999;9and for the first time children were
formally involved in the appointment process of a public sector ombudsman.10
The general context
The rights guaranteed to children under the United Nations Convention on the
Rights of the Child are wide-ranging, encompassing both civil and political, and
social and economic rights. They cover protection (from violence, dangerous work,
abuse and abduction); prevention of harm; provision (of appropriate care, standard
of living, education, facilities and support for special needs); and participation in
society, as active members of their community.11 These may sound impressive and
comprehensive, but the problem facing children’s rights advocates lies in
determining how one can safeguard and enforce children’s rights when they may
be unable to exercise them of their own will.
One approach intended to address this problem, which has been adopted by the
Council of Europe, has been to articulate certain children’s rights in greater detail
and to impose additional obligations on states to promote these. The European
Convention on the Exercise of Children’s Rights,12 for example, requires state
signatories to grant procedural rights to children affected by family proceedings
(such as in relation to residence, contact, adoption, etc). These rights include the
right of a child of sufficient understanding to receive all relevant information, to be
7 As the post has been described. See Assembly Record 12 December 2000. We consider further below
how far such a description is apposite.
8 Though note developments in other parts of the UK. In Scotland the executive has stated that it is
sympathetic to the idea of a children’s commissioner and invited the Education, Culture and Sports
Committee to report on the issue. The Committee has consulted on the possibility of establishing a
children’s commissioner. In Northern Ireland a private member’s bill, The Children’s Commissioner
Bill, was presented to the Assembly on 30 April 2001. An answer to a question put by Ms Eileen Bell
to the First Minister and Deputy First Minister on 8 December 2000 stated that the executive would
consider whether new arrangements for a children’s commissioner were necessary, after considering
the experience of other jurisdictions. The Mayor of London has established a ‘London Children’s
Rights Commissioner’, funded by charitable trusts and the National Lottery Charities Board (The
Guardian, 4 April 2001). Oxfordshire County Council and Save The Children have jointly established
a ‘Children’s Rights Commissioner’ to give young children a voice at local government level (R.
Harvey, ‘Unseen and Unheard: The case for a Children’s Rights Commissioner’ (2001) 178
ChildRight 18, 20.)
9 Accordingly it has been hailed by central Government as an act of ‘considerable constitutional
significance’. See Paul Murphy’s speech during the second reading of the Bill, HC Deb col 221 16
January 2001. Rhodri Morgan pointed out in a debate on the Queen’s speech that there have been only
four Wales specific bills since 1974 which were enacted. Assembly Record 19 December 2000.
10 See The Children’s Commissioner for Wales (Appointment) Regulations 2000, SI 2000 No 3121 (W.
199) which came into force on 8 December 2000. Regulation 2(2)(b) provides that the appointment of
the Commissioner shall only be made after taking account of ‘the views of relevant children as to any
candidates interviewed for the appointment’. See further section below pp 74–76.
11 G. Van Bueren, The International Law on the Rights of the Child (Dordrecht: Martinus Nijhoff
Publishers, 1995) 15.
12 ETS 160. Opened for signature on 25 January 1996. The Convention came into force on 1 July 2000,
and has been signed by 23 states and ratified by five.
January 2002] Creating a children’s champion for Wales?
ßThe Modern Law Review Limited 2002 59

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