Children’s Commissioner

‘And these children that you spit on
As they try to change their worlds
Are immune to your consultations
They’re quite aware of what they’re going through’
David Bowie – Changes
 

The new Chief Executive’s remarks about the possibility of creating the post of ‘Children’s Commissioner’ in Hong Kong, there has been a recent flurry of interest in this issue – including some recent support from the former Director of Public Prosecutions, Grenville Cross SC – Lecture at HKU 17th December 2012 – who has been very critical of government inaction on this issue, whilst hopeful of some movement by the CE in 2013. As someone who has been waiting eight years for government to adopt the Law Reform Commission’s recommendations for a ‘Children Act’ in Hong Kong, personally I would not hold my breath. But for those wishing to understand the arguments, a quick tour of the English website and the video (links below) will give readers some understanding of the kind of work a Children’s Commissioner might undertake here. Also the background notes to the Children Act 2004 (link below) give an interesting, if specifically English, perspective on those factors which eventually persuaded the UK government to support the post – although let us hope Hong Kong does not have to see a case like that of Victoria Climbia in any preamble to the statutory establishment of a Commissioner here.

The ‘Hong Kong Lawyer’ article (below) sets out some of the arguments in favour – most of which  seem persuasive so long as – this being Hong Kong – the religious groups, particularly the myriad Christian fundamentalist sects, can be held at arms length and are not included in the list (to use the latest ghastly management speak) of ‘stakeholders’.  A secure channel to government for children’s views and wider interests on major policy decisions is the central objective – whether or not channelled through individuals or organsiations and groups purporting to represent children’s interests in Hong Kong. Any Children’s Commissioner must be independent of government and any particular pressure group. But also robustly secular if only because the child abuse that sometimes follows from the the religious indoctrination of children by parents’ fascination with various crack-pot groups in Hong Kong should be part of the Commissioner’s terms of reference. Note too that doli incapax is (as in England & Wales) 10 years – raised from 7 years in 2003 – with a rebuttable presumption extending to children up to 14 . By European standards this is still exceptionally young – see here.

Children’s Commissioner – England. Child-friendly website

Children’s Commissioner – Northern Ireland

Children Act 2004 – see explanatory notes for background on the reasons why England adopted proposals for a Children’s Commissioner.

The Work of the Children’s Commissioner (England)

Why Hong Kong Needs A Children’s Commission

Hong Kong Lawyer – Anne Scully-Hill

The establishment of a Children’s Commission is back on the political agenda in Hong Kong. The Chief Executive, C.Y. Leung, met with representatives of the NGO Hong Kong Committee on Children’s Rights (“HKCCR”), the NGO Kidz Dream, the former Children’s Commissioner from Norway and the Australian Capital Territory’s Children & Young People Commissioner following the Second Children’s Issues Forum, of which the Law Society was a sponsor, in late August this year. Mr Leung said that his government would look into the matter of a Children’s Commission again.

So, what could a Children’s Commission achieve which is not currently being achieved for children in Hong Kong?

Hong Kong became a party to the United Nations Convention on the Rights of the Child (the “Convention”) in 1994. As such the Hong Kong government is committed to respect those rights of the child enshrined in the Convention. One of the means by which a party to the Convention can ensure respect for children’s rights in policy and legislative measures is to establish an independent and specialist Children’s Commission. A number of jurisdictions around the world have followed this path, including Norway, Scotland, England, New Zealand and Australia amongst others. Here in Hong Kong the Government has taken the stance that a Children’s Commission is unnecessary due to the existence of other child-related groups. Specifically, the recently-created Children’s Rights Forum is posited by the Government as capable of meeting the United Nations Committee on the Rights of the Child’s (“UNCRC”) requirements that children’s rights under the Convention be implemented and subsequently monitored by an independent body and moreover for children’s voices to be heard as part of that process. However, the Forum is only consultative, discursive and without power to act. Most significantly it does not have an investigative power to pursue complaints regarding the violation or non-implementation of children’s rights (para. 3, Against Child Abuse’s Submission to the Legislative Council Panel on Constitutional Affairs, re the Second Report, May 2009).

In addition to meeting its obligations under the Convention, by establishing a Children’s Commission the Government would merely be extending to children the same resource and status already given to other potentially vulnerable or excluded groups in society. For example there is already a Youth Commission, an Elderly Commission, a Women’s Commission, and the Equal Opportunities Commission. Surely, even more so than the groups these commissions represent, children are amongst the least likely to have a voice that is heard in the adult-led work of government and policy-making and thus need an independent and specialist Commission to advocate for them?

A truly independent and specialist Children’s Commission could be empowered to carry out a range of functions necessary for Hong Kong to fulfil its obligations under the Convention. These functions might include:

Collaboration and liaison with Government:

– Advise the government on and oversee the implementation of the UNCRC obligations; conduct a Child Impact assessment when policies or legislation are proposed or introduced; independently monitor the continued protection of those rights and promote rights and welfare of children as given in the Convention;

– Conduct research to achieve the following: collect and collate data on a longitudinal basis; set up a central database as a resource for stakeholders; develop indicators to measure and monitor progress in implementing the obligations and principles of the UNCRC.

– Consult with children as experts in child related policy.

Education:

– Promote and conduct Children’s Rights’ education for both the public at large and children including information about actions being taken to implement and protect the rights of the child in Hong Kong;

– Raise awareness of the UNCRC.

Advocacy:

– Investigate complaints from children on issues that affect them and investigate complaints from other interested parties; generally act as whistleblower where violations of children’s rights have occurred.

– Advocate for children’s rights at a local, regional and international level;

Thus, a Children’s Commission would help the government to meet its Convention obligations, would bring parity to the treatment of children with other vulnerable groups and finally the establishment of a Children’s Commission would serve to enhance the legitimacy generally of government actions in relation to children. By establishing the role of a single, independent Children’s Commissioner, free from any influence from government or other public bodies, the government would send a clear message to the local and international community about the high status and priority it accords to children whilst at the same time enhancing the efficiency with which resources for children are utilized and the development of child-centred policy by minimizing duplication of effort and fragmentation of initiatives across diverse government and NGO bodies.

So why doesn’t Hong Kong have a Children’s Commission?

In its Initial Report to the UNCRC in 1996 the Government expressed its view of a Children’s Commission for Hong Kong as ‘unnecessary and undesirable’ due to the breadth and diversity of services involved and the existing coverage of children’s matters by various specialist agencies in Hong Kong (para.19, Initial Report, 1996). The Government’s view was addressed directly by the UNCRC in its Concluding Observations following the consideration of the Initial Report. The UNCRC made it clear that it would welcome “the establishment of an independent mechanism specifically to monitor the implementation of government policy in relation to the rights of the child” (para. 20, Concluding Observations, 1996). In particular there were concerns that “sufficient priority does not appear to have been given to…pursuing an integrated and holistic approach to the adoption of legislation on the rights of the child” (para. 11) and further that “the Committee remains concerned about the adequacy of co-ordination activities between concerned governmental institutions…” (para.12).

Despite this, in its subsequent Periodic Report, submitted to the UNCRC in 2003, the Government maintained its general position on there being no need for a Children’s Commission, invoking the myriad bodies and processes already in place to monitor and implement children’s rights as sufficient: “The impact of legislation and the execution of policies was monitored by the Legislative Council (“Legco”), the Ombudsman and the press as well as being reviewed by the policy branches concerned. These arrangements allowed for flexibility and a swift response to changing circumstances and to the concerns of the public, and we saw no advantage in replacing them with some unified administrative system, a single child ordinance, or a single monitoring system” (para. 5, Periodic Report, 2003). Such a response might be said to be a direct rejection of the UNCRC’s recommendation.

Sharon Melloy, as she then was, writing in this publication in August 2005, noted that, having adopted an “uncompromising’ stance in its previous report, the Government’s Periodic Report seemed to ‘hold out some hope’ for future changes: ‘…there have been no new developments that indicate a need for a change of approach. But our minds are open and we are prepared to reconsider our position, should changing circumstances so warrant” (para.6, Periodic Report, 2003). However, this was not sufficient to reassure the UNCRC. In its Concluding Observations to the HKSAR Government’s Periodic Report it stated: “…the Committee remains of the opinion that national legislation and policy must take a holistic and comprehensive approach to the implementation of the Convention, which requires that priority be given to children’s issues, that such policy be actively coordinated and that assessments be made regarding the potential impact of policy decisions on children. The Committee urges the State party to make every effort to address the recommendations contained in the concluding observations on the initial reports that have not yet been implemented…” (paras 6-7, Concluding Observations 2005).

Consequently, the call for a Children’s Commission was reinvigorated within Hong Kong civil society. In 2006 23 NGOs from a wide range of disciplines formed the Alliance for a Children’s Commission to advocate and lobby for the establishment of a child specific commission. Shortly thereafter, in 2007, a motion was successfully moved in Legco, across parties, that “this Council urges the Government to set up a Commission on Children to fulfill the obligations under the UNCRC, safeguarding the well-being of children, and ensure that children’s perspectives are fully taken into account in the process of formulating government policies”.

However, when the Government submitted its Second Periodic Report to the UNCRC in May this year it not only failed to respond positively but in fact relied upon the NGOs and Legco as the means and justification for maintaining the status quo and for not establishing a Children’s Commission:

“Hong Kong possesses a strong legal system buttressed by judicial independence and professional legal services and a steadfast respect for the rule of law. Government policies and measures are also closely monitored by Legco, a vibrant and free media sector and the general public. There is no obvious need for establishing another human rights institution to duplicate or supersede the existing mechanism …Under the existing arrangements, when policies and measures relevant to the rights of the child are formulated by different Government bureaux and departments, relevant advisory bodies and other relevant bodies will be consulted through different channels, including NGOs concerned …We have further strengthened the co-operation with NGOs in the promotion of children’s rights…We do not see a strong need for the establishment of a dedicated advisory body on issues related to children’s rights. We will continue to explore means to improve the existing channels in collecting the views of children.” (at paras. 26-28 Second Periodic Report, 2012).

Regarding the UNCRC’s 2005 observation on the insufficiency of co-ordination in matters relating to children, it seems that rather than address and refute those concerns, the Government chooses to reiterate its flat statement that there is sufficient coordination:

“Mechanisms are in place within the HKSAR Government for co-ordinating and handling policies that involve different bureaux and departments. The leading policy bureau would consult other bureaux and departments in considering and dealing with relevant issues. Furthermore, the Policy Committee, led by the Chief Secretary for Administration of the HKSAR, provides a high-level mechanism for co-ordination and co-operation within the Government. As such, there are mechanisms within the Administration…to adequately serve the need of coordinating policies and measures among Government bureaux and departments, ensuring that adequate consideration is given to the interests of children” (at para.23).

This begs the following questions: How does the ‘high-level’ mechanism work? How do policy matters, and which ones, get to that high-level mechanism? What happens once they are there? Moreover, in the current framework, who is responsible for identifying and raising what would otherwise be ‘invisible’ matters relating to children in general or universal policy initiatives? As Doctors Patrick P.K. Ip and Chun-bong Chow say in Edward Chan Ko-Ling’s new book Preventing Family Violence (HKU Press 2012) “Services provided for children and for families with children in Hong Kong are scattered among different government bureaus, departments and divisions, and non-governmental organizations with a lack of coordination and little integration…Some of the services are overlapping and even competing with each other, while important gaps are identified in different important domains. Children have been regarded as the family’s own business, and child health issues have been regarded as a minor part of the healthcare system, drawing much less attention as it is usually set as one of the lowest priorities. Children are ‘invisible’ in many policy areas in Hong Kong” (at p. 80-81).

However, the Government has taken some steps intended to enhance the monitoring and implementation of children’s rights. For example, it has established two platforms since the Initial Report: the Children’s Rights Forum and the Family Council. The Children’s Rights Forum was set up in 2005 and is intended to facilitate the exchange of views between the representatives of Government departments and those various stakeholders who are invited to participate. The stakeholders include child related NGOs and a number of children. The Family Council has as its focus the promotion of “family core values” and fostering pro-family measures (para.218 Second Periodic Report, 2012). Significantly, neither the Children’s Rights Forum nor the Family Council is child-led or capable of autonomous, proactive, longitudinal and independent oversight and investigation of government action and policy formulation as it may impact on children’s rights specifically.

Whilst the establishment of these bodies demonstrates a degree of engagement by the Government with its duties under the Convention, as a means of fulfilling Hong Kong’s obligations under the Convention they fall short of the independent, autonomous, empowered entity that is truly necessary to ensure the implementation of children’s rights and ongoing respect for those rights. Instead, to appoint an independent Children’s Commissioner would be one of the most significant steps that the government could take to meet its obligations under the Convention and to address the UNCRC’s very clearly stated concerns about oversight, co-ordination and integration.

What Next?

In the coming year the HKCCR will launch the 1.1.Million Children campaign to lobby for the establishment of a Children’s Commission. The campaign is so named in recognition of the 1.1.million children in Hong Kong. Information about the campaign can be found at www.1.1Mchildren.hk With the Chief Executive’s expression of willingness to look again at the matter and the imminent launch of the 1.1 Million Children campaign, it is to be hoped that momentum is gathering for a full debate between interested parties and a meaningful engagement on the part of the Government with the UNCRC’s recommendations, resulting in the long awaited establishment of a Children’s Commission for Hong Kong.

❝In addition to meeting its obligations under the Convention, by establishing a Children’s Commission the Government would merely be extending to children the same resource and status already given to other potentially vulnerable or excluded groups in society.❞

By Anne Scully-Hill, Associate Professor.
Faculty of Law, Chinese University of Hong Kong

United Nations

UN Committee on the Rights of the Child

UNICEF

UNICEF Innocenti Research Centre