Dr. Niall Muldoon:

I realise the presentation I submitted to the committee was probably too long so I will not read it all but will shorten it for the purposes of the meeting.

I thank the Chairman for the invitation to meet the committee today. After working for nearly 20 years as a psychologist, the majority of it spent in the area of child protection, and two and a half years as director of investigations at the Office of the Ombudsman for Children, I was deeply honoured to be chosen as Ombudsman for Children. I received my warrant of appointment from President Higgins in February of this year and I welcome the opportunity to make my first appearance in front of this committee to discuss the role and functions of my office.

As the committee is aware, the Office of the Ombudsman for Children is an independent human rights institution established under the Ombudsman for Children Act 2002 to promote and monitor the rights of children in Ireland. My office has a unique combination of statutory functions. The one that may be most familiar to the members of the committee is my statutory function to examine and investigate complaints made by or on behalf of children in regard to the administrative actions, or inaction, of public bodies that have had, or may have had, an adverse effect on the child or children concerned. In carrying out this function, my office observes fundamental ombudsman principles: my office is independent and impartial, acting neither as an advocate for the child nor as an adversary of the public body complained against; we respect local complaints procedures and seek at all times to promote the resolution of complaints at a local level; and we endeavour to achieve systemic change through our complaints and investigations function by considering the root causes of complaints we receive.

My investigatory remit, as provided for under the Ombudsman for Children Act, also comprises two unique elements, which reflect two fundamental children’s rights principles as recognised under the UN Convention on the Rights of the Child. First, in the performance of my complaints-handling function, I am obliged to have regard to the best interests of the child concerned. Second, I am obliged, in so far as practicable, to give due to consideration to the wishes of the child, in accordance with her or his age and understanding. In this regard, my office has developed considerable expertise in engaging directly with children and young people when examining complaints made by them or on their behalf.

In addition to examining and investigating complaints, I have a complementary statutory remit, which is broadly concerned with promoting and monitoring the rights and welfare of children. The Oireachtas conferred a range of functions on the Ombudsman for Children in this regard under section 7 of the 2002 Act. These positive obligations include encouraging public bodies to develop policies, practices and procedures which are designed to promote children’s rights and welfare; advising any Minister on matters relating to the rights and welfare of children, including relevant developments in legislation and public policy; consulting with children and highlighting issues relating to their rights and welfare that are of concern to children themselves; and promoting awareness among members of the public, including children, of matters relating to children’s rights, including the principles and provisions of the UN Convention on the Rights of the Child.

In respect of the functions of the office to advise on legislation and public policy, members of the committee will be aware that the office has provided independent advice on a wide range of legislation affecting children since its establishment in 2004. Given that matters concerning education are a key focus for the work of the committee, I will highlight that the office provided advice on the then General Scheme of the Education (Admission to Schools) Bill 2013.

Through our rights education programme, the office has engaged with primary and post-primary schools throughout the country and facilitated thousands of children and young people to explore and develop their understanding of children’s rights. In addition, we have developed a seminar programme for postgraduate students pursuing qualifications in social work, social care, education, and child protection and welfare, in which hundreds of students from universities and ITs in different parts of the country have participated.

The office’s different functions inform and support each other. Work undertaken in accordance with one particular statutory function may trigger complementary work under a different function. Similarly, where there is an obstacle to tackling a children’s rights issue – due to an exclusion to the Ombudsman for Children's Office investigatory remit, for example – we can use another function to address the problem. This is what we did in regard to St. Patrick's Institution where we engaged the young people about how they found the place and the concerns they had. This was done when the Office of the Ombudsman for Children had no investigatory remit, prior to July 2012. My intention in setting out this example is to demonstrate that a broad mandate that blends different functions can offer a range of options to address children’s rights issues; this is a very important aspect of the strong and robust mandate that the Oireachtas has given my office.

My office is handling approximately 1,600 complaints a year and while we saw a slight fall, of 5%, in the number of complaints received in 2014 over 2013, we still dealt with 9% more complaints than two years ago. The majority of complaints last year were in regard to education, 47%, and the next most significant proportion of complaints received related to family support, care and protection, 25%, that is, the area for which the Child and Family Agency has a remit. The vast majority of complaints, 75%, are brought by parents on behalf of their children.

The complaints received range in levels of complexity and we maintain our focus on seeking to resolve each one within the local procedures mechanism and as quickly as possible. It is important to realise that the office uses various mechanisms to resolve issues before escalating to a full investigation. In regard to education complaints, my team has engaged with parents, children, principals, boards of management and patrons throughout the country in various ways to assist both parties move forward to resolve matters in the best interest of children. However, when the issues raised are of a more complicated nature these may be more difficult to resolve locally and, therefore, could require a full investigation to achieve a resolution. Examples of issues, from all areas, not just education, we have investigated previously include the handling of child protection notifications by a social work area; the refusal of a section 10 payment to a family; access to support for a preschool child with special needs in the early childhood care and education scheme; resource allocation for children with special needs; and the admission policy within a school.

As evidenced above, education accounted for the highest proportion of complaints received in 2014 and that has been the case for many years. I have looked especially closely at the issues and outcomes in this regard. It is clear to me that the concerns raised consistently, by my office, over the years in regard to the complaints architecture within education have not been heeded. To date, the Education Act 1998 still represents the key legislative framework in which we seek to determine how schools operate. Successive governments have failed to implement fully the provisions of section 28 of that Act which sets out how grievances and concerns of a student may be dealt with and remedied. Part V of the Teaching Council Act 2001 is designed to examine teachers' fitness to practice and this too is still to be commenced, meaning that two major elements of the complaint structure for the general public are only available in theory.

Parents are entitled to expect to be able to raise concerns about how their children are being taught and to assume there is a standardised complaints system within all schools, however neither of those is available to them at present. While the Office of the Ombudsman for Children was set up with the expectation that it would be one part of the complaints landscape in regard to schools, it has de factobecome the only element available to many parents. That is not good enough. I urge this committee to seek to have both of those missing elements brought into being as soon as possible.

The top three issues in respect of complaints received by the Office of the Ombudsman for Children are first, the handling of allegations of inappropriate professional conduct - I have dealt with this in a previous paragraph in regard to commencing Part V of the Teacher Council 2001; second, the handling of bullying - the Office of the Ombudsman for Children has engaged via our education and participation unit with children and young people around this issue to determine their views on how it happens and what needs to be done to stop it. This resulted in the publication of our Dealing with Bullying in Schools: A Consultation with Children and Young People in 2013 which fed into the Anti-Bullying Procedures for Primary and Post-Primary Schools, issued by the Department of Education and Skills later that year. While I welcome the introduction by the Department of Education and Skills of new anti-bullying procedures for primary and post-primary schools, I have concerns regarding the monitoring of implementation of the procedures in schools. It would appear that no agency is tasked with examining schools’ annual reviews or any trends or anomalies that may emerge from them. As a result it is not clear how the State will fully track progress at a national level in regard to how different forms of bullying are being tackled in schools. It is for this reason I have recommended in my report to the UN Committee on the Rights of the Child, UNCRC, of April 2015 that the State should build on the monitoring framework contained in those procedures by examining the annual reviews by schools of their implementation of the procedures. For my part my office will continue to promote positive communication within schools and between parents and schools when we are dealing with such complaints.

The third issue is complaint handling, decisions and policy within schools. As stated previously, the complaint handling structures in the education sector are incomplete. It was originally envisaged that in order to bring about higher standards and consistency in schools, and complaints handling lacked practice, the Minister for Education and Skills would prescribe procedures for schools to deal with grievances raised by students or their parents, as well as the remedial action to be taken in response to those grievances.

These provisions never came into operation. Thus, in my recent report to the United Nations Committee on the Rights of the Child, I included a recommendation that the State "ensure that a comprehensive and consistent complaints handling framework is put in place in the education sector".

Through the course of its examination of complaints in the education sector, the Office of the Ombudsman for Children has formed the view that the degree of autonomy afforded to Irish schools has operated in such a way that the State has not been able to exercise responsibility and oversight in the manner required of it as a duty bearer under the UN Convention on the Rights of the Child. The office has observed this systemic problem in investigations relating to admissions and child protection, for example. For this reason, in my alternative report to the United Nations Committee on the Rights of the Child in April of this year, I recommended that the State "recalibrate the balance between schools' autonomy and oversight by Central Government in order to ensure that the State assumes an appropriate level of responsibility for advancing and protecting children's rights within the education system".

I thank members for their attention. I will be pleased to address any queries they have on these or other aspects of my role and functions as Ombudsman for Children.