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The Children's Commissioner.

The Petition for an Independent Complaints Authority for Child Youth & Family, (CYF) New Zealand

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The Role of the Children's Commissioner.

Last updated 31st September 2010

Please Note: The Petition is Closed
The debate and need for change continues.


The following is an update to Why a CYF Complaints Authority is Needed. As we said from the beginning we do not claim, nor do we believe we have all the answers or that our ideas will or will not work. We do however want to stimulate debate and welcome all feedback.


Let us begin with a comment from a former Children's Commissioner when the subject of an Independent Authority was raised back in 2007. In particular this Media Release from 8 February 2007 to which we have been referred. http://www.scoop.co.nz/stories/PO0901/S00019.htm

"Children's Commissioner has role in monitoring Child, Youth & Family"

Children's Commissioner, Dr Cindy Kiro, has reacted to recent calls for the set-up of an independent compliants authority to monitor the activities of Child, Youth and Family (CYF) by pointing out that the Children's Commisioner's Act 2003 already provides the Children's Commissioner with certain functions in relation to monitoring Child, Youth and Family Services (CYF) and other persons, bodies and organisations exercising any function or power conferred by the Children, Young Persons and Their Families Act 1989.

Addressing the Claims

Actually the Children's Commissioner's Act 2003 does no such thing. Under section 12 of the Act certain powers are in theory given to the Commissoner, which are then immediately reduced to a role of oversight of the Children Young Persons and Their Families Act alone by Section 13 of the Children's Commissioner's Act 2003.

Section 12(1)(a) of the Children's Commissioner's Act 2003 states:

12 General functions of Commissioner.
  1. The general functions of the Commissioner are -
    1. to investigate any decision or recommendation made, or any act done or omitted (other than a decision, recommendation, or act to which section 13(1)(a) applies), in respect of any child in that child's personal capacity:"
Italic emphasis added

So then any decision, recommendation or act done or omitted to which section13(1)(a) applies is outside of the Children's Commissioner's role. What then is this Section 13(1)(a)?

13 Functions in relation to Children, Young Persons, and Their Families Act 1989
  1. The Commissioner has the following functions in relation to the Children, Young Persons, and Their Families Act 1989:
    1. to investigate any decision or recommendation made, or any act done or omitted, under that Act in respect of any child or young person in that child's or young person's personal capacity:"
Italic emphasis added

As The Children's Commissioner is then restricted to matters solely in relation to the Act not the Agency, Department or Service, the Commissioner can not then change the procedures or practices of Child Youth and Family Services which may have led to any error, harm or abuse at the hands of any employee or Social Worker working for CYF.

The Commissioner may "investigate any decision or recommendation made, or any act done or omitted, under that Act" but the Commissioner cannot change any procedure, practice or policy that might have led to a wrong decision or wrong recommendation, by Child Youth and Family Services.

Now some might say that under Section 13.(1)(b) these powers are given to the Commissioner, however this is not so. For the Commissioner is again limited to reviewing under the Act not the Agency itself. In regard to the Act the Commissioner has many and varied powers to review and recommend, but none to enforce Change of suspect or errant procedure within Child Youth and Family Services.

 

Conclusion of many better legal brains than ours:

To say that the Commissioner has any power to enforce correction or change of error in regard to Child Youth and Family Services is errant. For the Commissioner may only review the procedures described within the Act and make recommendations on the Act itself not the Agency or Service. While any recommendation the Children's Commissioner might make in regard to the Act is not binding on any organisation, agency or entity.

In fact most of those legal experts have said to us the same as we say to you: "The Children's Commissioner's Act 2003 is a farce and badly written."

 

In Closing

Again the claim is made that an Independent Child, Youth and Family Complaints Authority presently exists, when in fact the authority making the claim can not investigate the Child, Youth and Family Agency or make any recommendations that would be binding on that agency.

In fact the Children's Commissioner is in the same boat as the Social Workers Registration Board. Only able to act when a complaint is made, and then only in relation to a specific individual occassion or instance after the harm has been done.

So while we have a Children's Commissioner who can assist individual Children in individual cases the Independent Crown Entity is once more forced by badly written legislation into being an ambulance at the bottom of the cliff, instead of an assitive barrier at the top.

 

The Current Commissioner States.

The Commissioner can, and does, advocate on behalf of children when appropriate. Sometimes this is in relation to individual cases and sometimes on a broader, policy level.

When members of the public contact the Commissioner to discuss their dissatisfaction with a decision made by Child, Youth and Family, it is the practice of my Office to suggest they try to resolve their concerns, in the first instance, directly with Child, Youth and Family. They can do this either with the local Child, Youth and Family office or by lodging a complaint under Child, Youth and Family's complaint process. If, after going through the complaints process, a person remains dissatisfied, they may make a complaint to the Office of the Ombudsmen, this Office or the Social Worker's Registration Board.

The Commissioner has a statutory responsibility to monitor and assess the policies and practices of Child, Youth and Family (s13 of the Children's Commissioner Act 2003) but has no authority to direct Child, Youth and Family to take any particular action in respect of any case they are managing.

Conclusion

The present Commissioner it seems is also under the belief that the Office of the Children's Commissioner has authority over Child Youth and Family Services, when in fact the Commissioner does not have such authority. Whether present or past Commissioners like it or not they do not have the authority they claim.

Under the current legislation The Commissioner is restricted to monitoring, reviewing and making recommendations in regard to the Children, Young Persons and their Families Act, not CYF, not the Agency. The Office of the Children's Commissioner does not have authority to enforce change of suspect or errant procedures within CYF, but may only review the procedures of CYF and other agencies and organisations in regard to the Act.

 

Please Note: The Petition is Closed
The debate and need for change continues.


 

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