Ombudsman for Children

Table of Contents

Functions of Ombudsman

The office of the Ombudsman for Children was established by the Ombudsman for Children’s Act 2002. The Ombudsman is appointed by the President.

The Ombudsman is independent in the performance of his functions. The Ombudsman is to have regard to the best interests of the child, taking into account the age and understanding of the child.

The Ombudsman is granted a promotional role in relation to the rights and welfare of children. The Ombudsman may advise the government, encourage the development of policies, practices and procedures and promote children’s rights and welfare. The Ombudsman may highlight issues of concern to children and is to monitor and review the operation of legislation insofar as it relates to children.

The Ombudsman has a role in examining and investigating complaints. This covers public bodies, schools and voluntary hospitals. Complaints may be made by a child, a parent or other person on behalf of a child. Before investigating a complaint, the parent must be informed. The action must relate to the performance of administrative functions. There are provisions for the investigation of complaints. The public bodies subject to investigation are set out.

Appointment

The Ombudsman is appointed by the President on the resolution passed by both Houses of the Oireachtas, recommending the appointment. The Ombudsman may resign or may be removed but only where he or she has become incapable through ill health of performing functions, becomes bankrupt, is convicted of a serious offence and sentenced to prison, has continued without reasonable excuse to fail to discharge his functions for three months or for other stated reasons.

He or she may only be removed on a resolution of the Houses of the Oireachtas. The Ombudsman must leave office at the age of 67.

There is a provision for salary, allowances and expenses of the office of the Ombudsman. There is a provision for a remuneration and superannuation scheme. Salary and superannuation provisions are subject to the consent of the Minister for Finance.

The Ombudsman for Children is to be independent in the performance of his or her functions. He or she must have regard to the best interests of the child and, insofar as practicable, give due consideration to the child’s wishes having regard to the age and understanding of the child.

Rights & Welfare of Children

The primary function of the Ombudsman is to promote the rights and welfare of children. Without prejudice to the generality of the above, the Ombudsman shall

advise the Minister and other government Ministers on the development and coordination of policy relating to children.
encourage public bodies, schools and voluntary hospitals to develop policies, practices, and procedures designed to promote the rights and welfare of children.
collect and disseminate information on matters relating to children.
promote awareness among members of the public of matters relating to child’s rights and welfare.
highlight issues regarding the rights and welfare of children.
exchange information with equivalent bodies in other states,
monitor and review legislation generally affecting children and the Act.

The Ombudsman must establish structures to consult regularly with groups that he considers to be representative of children for the purpose of his functions. The views of children are to be taken into account, giving due weight to their age and understanding.

Investigation

The Ombudsman has an investigatory role regarding complaints received. The jurisdiction applies to public bodies, schools and voluntary hospitals. Complaints may be made by a child, parents or persons who have a personal or professional interest relationship to the child concerned and who are considered suitable for that purpose by the Ombudsman.

Prior to an investigation, the parent of the child must be informed. The complaint must be one which relates to the performance of administrative functions. Certain types of action are precluded from investigation.

The Ombudsman for Children may investigate any action taken (being an action taken in the performance of administrative functions) by or on behalf of a public body where, upon having carried out a preliminary examination of the matter, it appears to the Ombudsman for Children that the action has or may have adversely affected a child, and the action was or may have been—

taken without proper authority,
taken on irrelevant grounds,
the result of negligence or carelessness,
based on erroneous or incomplete information,
improperly discriminatory,
based on an undesirable administrative practice, or
otherwise contrary to fair or sound administration

The Ombudsman may investigate any action taken by or on behalf of a school or a voluntary hospital. The provisions relating to the investigation of schools only apply once the full procedures under the Education Act have been exhausted.

The Ombudsman shall not investigate an action unless a complaint has been made by or on behalf of a child or it appears, having regard to the circumstances, that an investigation would be warranted. A complaint may be made by a parent or other appropriate persons such as a guardian or a person with an interest in the welfare of the child. The parent should be informed before the commencement of the investigation.

Basis for Finding

The Ombudsman for Children may investigate any action, being an action taken in the performance of administrative functions by or on behalf of a public body, where, having carried out a preliminary review, it appears that the action has adversely affected a child and may have been taken

without proper authority
on irrelevant grounds,
negligently or carelessly,
based on erroneous or incomplete information,
improperly discriminatory,
based on undesirable administrative practices or
otherwise contrary to fair or sound administration.

Procdure

The Ombudsman for Children carries out the preliminary examination and considers whether or not to carry out an investigation into the matter concerned. He or she may discontinue action and investigation under the legislation if he is or becomes of the opinion that the complaint is trivial or vexatious, the child has an insufficient interest in the matter, has not taken reasonable steps to obtain redress in respect of the subject matter of the complaint otherwise or the lapse of time makes it impossible or impracticable to have effective redress.

Similarly, if a matter is being sufficiently investigated in another investigation, it is not necessary for the Ombudsman to investigate. In determining whether to initiate, continue or discontinue investigations, the Ombudsman is to act in accordance with his or her own discretion.

Excluded Matters

The Ombudsman shall not investigate any action taken on behalf of a public body, school or voluntary hospital if

the action is one in relation to which civil, legal proceedings have been taken and have not been dismissed for failure to disclose a claim whether the proceedings have been otherwise concluded or would have been concluded.
where the child affected has the right under statute, of appeal, reference or review before a court in the state.
where the child affected has a right of appeal, reference or review to another entity other than a public body or if appropriate a school or voluntary hospital concerned
if the action relates to or affects national security or military activities or relates to recruitment to any employment or office in the State.
relates to terms and conditions upon which any person holds office or is employed.
relates to immigration, naturalisation of citizenship matters
relates to exercise, forfeitures or disqualification under criminal jurisdiction
relates to the administration of prisons or bodies, places for detention of children.
where a complaint is made to the Ombudsman in relation to the action, if the complaint is not made before the expiration of two years from the time the child making the complaint or the person on his behalf is or was aware of the action, whichever is the later, or in any other case if the investigation is not commenced before the expiration of two years from the time of the action.

In cases where there is court based or another right of appeal etc., the ombudsman may investigate where it appears to him that special circumstances make it proper for him to do so. Where a complaint is made later than two years, special circumstances may make it proper to investigate.

Where a Minister of the government so request in writing, the Ombudsman shall not investigate an action whose functions are assigned to a Minister of the government or a public body whose business and functions are comprised in such a Department of State. The full reasons for the request must be given. This applies to functions assigned to the Minister of the government or the Department of the State whether or not they stand delegated to a Minister for State.

Decisions & Recoomendations

Where a complaint is made to the Ombudsman in relation to action and he decides not to carry out an investigation, he shall send the child or the person who made the complaint a statement in writing with reasons for the decision. If the reason arises from a request by a Minister of the government or public body above, a copy of those reasons shall be given. They shall be sent to such other persons if any, as the Ombudsman considers appropriate.

Where the Ombudsman conducts an investigation, he shall send a written statement of the results of his investigation to the relevant body, public body, school or voluntary hospital concerned. It shall give a statement to the Department which is relevant to its business and functions or in the case of a school, the Department of Education or in the case of the hospital, to the health authority.

If it appears to the Ombudsman that the action adversely affected the child and falls within the above criteria for jurisdiction, he or she may recommend to the relevant public body, school, hospital etc.,

that the matter be considered further.
that measures be taken to remedy, mitigate or alter the adverse effect or
that the reasons for taking the action be given to the Ombudsman.

If the Ombudsman thinks fit, he or she may request the public body, school or hospital to notify him or within a specified time of its response to the recommendation.

Where the Ombudsman carries out an investigation under the Act, he or she shall notify the child who made the complaint or person who complained on his behalf, of the results of the investigation and the recommendation made.

Where it appears to the Ombudsman that the measures taken or proposed to be taken in response to a recommendation are not satisfactory, he may cause a special report to be made in relation to the matter. The Ombudsman shall not make a finding or a criticism adverse to the entity concerned without having allowed that entity to consider the finding or criticism and make representations.

Answering to Oireachtas

The Ombudsman shall cause a report on the performance of his functions to be laid before the Houses of the Oireachtas annually and may cause other reports to be laid as he or she thinks proper. Requests by the Department or Minister in relation to exclusion of jurisdiction above shall be included in the report.

For the purpose of the law of defamation, certain publications specified are absolutely privileged. They include the publication of matters by which the Ombudsman is making a report to the Houses of the Oireachtas as well as certain other publications and communications.

The Ombudsman has powers in relation to preliminary examinations and investigations equivalent to those which the general Ombudsman has under the 1980 Act. See the separate articles on the Public-Service Ombudsman. Similar provisions in relation to the conduct of investigations apply.

There are provisions for the Office to keep accounts and for their audit. They are to be submitted to the Comptroller and Auditor General. A copy is to be presented to the Minister, who shall cause them to be laid before the Houses of the Oireachtas.

The Ombudsman for Children may be required by Dáil Committees to report to the Dáil in relation to financial matters affecting the Office, including issues of efficiency and economy, systems, procedures and practices employed for the purpose of evaluating the effectiveness of the operation of the office.

The Ombudsman shall attend before other Committees of the Oireachtas to account for the general administration of the office as may be required by the committee. The Ombudsman shall not be required to account for any matter relating solely to an individual complaint or which has been or made in any future time it is subject to proceedings before a court or tribunal.

Where the Ombudsman is of the opinion that this provision applies, he shall inform the committee of the reasons for it. This may be done at the meeting or prior to it.

Bodies Covered

The legislation covers the HSE, government departments and many public sector bodies, including

Bord Bia, Bord Glas and FÁS, Civil Service Commissioners, Environmental Protection Agency, Food Safety of Ireland, Heritage Council, Land Registry, National Authority for Occupational Health and Safety, National Library of Ireland, Radiological Society of Ireland, Registry of Deeds, local authority, the HSE.

There are certain modifications to be above, whereby certain bodies are excluded.

The Broadcast Complaints Commission,
the Defence Forces and Army Pensions Board
Competition and Consumer Complaints Commission
WRC, Labour Court, the Labour Court
Bord Uchtála, the Adoption Board,
Data Protection Commissioners and
Garda Síochána, Garda Síochána Complaints Body and Equality Authority.

Certain entities and persons acting on behalf of the HSE solely in the exercise of clinical judgment in connection with the diagnosis of illness or care or treatment of a patient are excluded. Also excluded are the HSE when acting on the advice of persons aforesaid.