Ombudsman for Children Act 2002

PART 1 Preliminary and General

1. Short title and commencement.

1.—(1) This Act may be cited as the Ombudsman for Children Act, 2002.

(2) This Act shall come into operation on such day or days, not later than 2 years after the passing of this Act, as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Interpretation.

2.—(1) In this Act, unless the context otherwise requires—

“Act of 1980” means Ombudsman Act, 1980;

“Act of 1998” means Education Act, 1998;

“Act of 1999” means Health (Eastern Regional Health Authority) Act, 1999;

“action” includes decision, failure to act and omission;

“child” means a person under the age of 18 years and “children” shall be construed accordingly;

“civil servant” has the meaning assigned to it by the Civil Service Regulation Act, 1956;

“functions” includes powers and duties and a reference to the performance of functions includes, as respects powers and duties, a reference to the exercise of powers and the carrying out of duties;

F1[…]

“local authority” means a local authority for the purposes of the Local Government Act, 2001;

“Minister” means Minister for Health and Children;

F2[‘public body’means a body specified in or under the First Schedule to the Act of 1980 or a reviewable agency by virtue of an order under section 1A of that Act, but only to the extent that and in relation to functions in respect of which the body is subject to the Act of 1980;]

“school” means a recognised school within the meaning of the Act of 1998;

F3[‘voluntary hospital’means a hospital which is substantially funded by means of an arrangement with the Health Service Executive undersection 38of the Health Act 2004 and the governing body of which is not the Health Service Executive or a committee of it.]

(2) In this Act, unless the context otherwise requires, references to any Department of State include references to the Minister of the Government having charge of that Department of State and to officers of that Minister of the Government and, if and so long as any of the functions of that Minister of the Government stand delegated to a Minister of State at that Department of State, include references to such Minister of State at that Department of State.

(3) In this Act, unless the context otherwise requires, references to a public body (other than a Department of State) include—

(a) as respects the business and functions of the public body, references to the Department of State in which any of them are comprised and to the Minister of the Government having charge of that Department of State, and

(b) as respects functions in relation to the public body performed by a Department of State, references to that Department of State and to the Minister of the Government having charge of it,

and to officers of those Ministers of the Government and members, officers and staff of the public body and, if and so long as any of the functions of any of those Ministers of the Government stand delegated to a Minister of State at any Department of State, to such Minister of State at that Department of State.

(4) In this Act, unless the context otherwise requires, references to a school include references to the board of management of the school established under section 14 of the Act of 1998, the Principal (within the meaning of section 23 of that Act) of the school, the teachers and other staff of the school.

(5) In this Act, unless the context otherwise requires, references to a voluntary hospital include references to the owner, manager or governing body (in each case by whatever name called) of the hospital and the officers and staff of the hospital.

(6) In this Act—

(a) a reference to a section or Schedule is a reference to a section of, or a Schedule to, this Act unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended, and

(c) F4[…] a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any other enactment (including this Act).

3. Expenses.

3.—Any expenses incurred in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART 2 Ombudsman for Children

Chapter 1

4. Appointment and term of office.

4.—(1) There is established the office of Ombudsman for Children and the holder of the office shall be known as the Ombudsman for Children.

(2) The appointment of a person to be the Ombudsman for Children shall be made by the President upon resolution passed by Dáil Éireann and by Seanad Éireann recommending the appointment of the person.

(3) A person appointed to be the Ombudsman for Children—

(a) may at his or her own request be relieved of office by the President,

(b) may be removed from office by the President but shall not be removed from office except where—

(i) he or she has become incapable through ill health of effectively performing the functions of the office,

(ii) he or she is adjudicated bankrupt,

(iii) he or she is convicted on indictment by a court of competent jurisdiction and sentenced to imprisonment,

(iv) he or she has failed without reasonable excuse to discharge the functions of the office for a continuous period of 3 months beginning not earlier than 6 months before the day of removal, or

(v) for any other stated reason, he or she should be removed,

and then only upon resolution passed by Dáil Éireann and Seanad Éireann calling for his or her removal,

F5[(c) shall in any case vacate the office on attaining the age of 70 years or, where a higher age is prescribed by order under section 3A(2) of thePublic Service Superannuation (Miscellaneous Provisions) Act 2004for the purposes of that Act, that age but, where the person is a new entrant (within the meaning of that Act) appointed on or after 1 April 2004, the requirement to vacate office on grounds of age shall not apply.]

(4) Subject to this section, a person appointed to be the Ombudsman for Children shall hold the office of Ombudsman for Children for a term of 6 years and may be re-appointed once only to that office for a second term.

(5) (a) Where a person who holds the office of Ombudsman for Children is—

(i) nominated as a member of Seanad Éireann or elected as a member of either House of the Oireachtas,

(ii) elected to be a representative in the European Parliament or is regarded pursuant to section 19 of the European Parliament Elections Act, 1997, as having been elected to that Parliament, or

(iii) becomes a member of a local authority,

he or she shall thereupon cease to hold the office of Ombudsman for Children.

(b) A person who is for the time being—

(i) entitled under the Standing Orders of either House of the Oireachtas to sit therein,

(ii) a representative in the European Parliament, or

(iii) entitled under the standing orders of a local authority to sit as a member thereof,

shall, while he or she is so entitled under subparagraph (i) or (iii) or is such a representative under subparagraph (ii), be disqualified for holding the office of Ombudsman for Children.

(6) A person who holds the office of Ombudsman for Children shall not hold any other office or employment in respect of which emoluments are payable or be a member of the Reserve Defence Force.

5. Salary, allowances for expenses and superannuation.

5.—(1) There shall be paid to the holder of the office of Ombudsman for Children such remuneration and allowances for expenses as the Minister may from time to time, with the consent of the Minister for Finance, determine.

(2) (a) The Minister shall, with the consent of the Minister for Finance, make and carry out, in accordance with its terms, a scheme or schemes for the granting of superannuation benefits to or in respect of persons who have held the office of Ombudsman for Children.

(b) A scheme under paragraph (a) shall fix the conditions for payment of superannuation benefits under it and different conditions may be fixed by reference to the different circumstances pertaining to the particular officeholder concerned or his or her dependants at or before the time the question of eligibility for such payment falls to be considered.

(c) The Minister may at any time, with the consent of the Minister for Finance, make and carry out, in accordance with its terms, a scheme or schemes amending or revoking a scheme under this subsection, including a scheme under this paragraph.

(d) No superannuation benefit shall be granted by the Minister, nor shall any other arrangement be entered into by the Minister for the provision of such a benefit, to or in respect of persons who have held the office of Ombudsman for Children except in accordance with a scheme under this subsection or, if the Minister, with the consent of the Minister for Finance, sanctions the granting of such a benefit, in accordance with that sanction.

(e) Any dispute that arises as to the claim of any person to, or the amount of, any superannuation benefit payable pursuant to a scheme under this subsection shall be submitted to the Minister who shall refer such dispute to the Minister for Finance, whose decision shall be final.

(f) A scheme under this subsection shall be laid before each House of the Oireachtas as soon as may be after it is made and if either such House, within the next 21 days on which that House has sat after the scheme is laid before it, passes a resolution annulling the scheme, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(g) In this subsection “superannuation benefits” means pensions, gratuities or other allowances payable on resignation, retirement or death.

Chapter 2

6. Performance of functions.

6.—(1) The Ombudsman for Children shall be independent in the performance of his or her functions under this Act.

(2) The Ombudsman for Children shall, in the performance of his or her functions under sections 8 and 9, have regard to the best interests of the child concerned and shall, in so far as practicable, give due consideration, having regard to the age and understanding of the child, to his or her wishes.

Chapter 3

7. Function to promote rights and welfare of children.

7.—(1) The Ombudsman for Children shall promote the rights and welfare of children and, without prejudice to the generality of the foregoing, he or she shall—

(a) advise the Minister or any other Minister of the Government, as may be appropriate, on the development and co-ordination of policy relating to children,

(b) encourage public bodies, schools and voluntary hospitals to develop policies, practices and procedures designed to promote the rights and welfare of children,

(c) collect and disseminate information on matters relating to the rights and welfare of children,

(d) promote awareness among members of the public (including children of such age or ages as he or she considers appropriate) of matters (including the principles and provisions of the Convention) relating to the rights and welfare of children and how those rights can be enforced,

(e) highlight issues relating to the rights and welfare of children that are of concern to children,

(f) exchange information and co-operate with the Ombudsman for Children (by whatever name called) of other states,

(g) monitor and review generally the operation of legislation concerning matters that relate to the rights and welfare of children, and

(h) monitor and review the operation of this Act and, whenever he or she thinks it necessary, make recommendations to the Minister or in a report under section 13(7) or both for amending this Act.

(2) (a) The Ombudsman for Children shall establish structures to consult regularly with groups of children that he or she considers to be representative of children for the purposes of his or her functions under this section.

(b) In consultations under this subsection, the views of a child shall be given due weight in accordance with the age and understanding of the child.

(3) The Ombudsman for Children may undertake, promote or publish research into any matter relating to the rights and welfare of children.

(4) The Ombudsman for Children may, on his or her own initiative, and shall, at the request of the Minister or any other Minister of the Government, give advice to the Minister of the Government concerned on any matter (including the probable effect on children of the implementation of any proposals for legislation) relating to the rights and welfare of children.

(5) For the purposes of this section, persons under the age of 18 years who are enlisted members of the Defence Force shall not be regarded as children in any case where they are subject to military law under the Defence Forces Acts, 1954 to 1998.

(6) In this section “the Convention” means the United Nations Convention on the Rights of the Child done at New York on 20 November 1989, as amended by any protocol thereto that is for the time being in force in the State.

Chapter 4

8. Function to examine and investigate complaints against public bodies.

8.—Subject to this Act, 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—

(a) the action has or may have adversely affected a child, and

(b) the action was or may have been—

(i) taken without proper authority,

(ii) taken on irrelevant grounds,

(iii) the result of negligence or carelessness,

(iv) based on erroneous or incomplete information,

(v) improperly discriminatory,

(vi) based on an undesirable administrative practice, or

(vii) otherwise contrary to fair or sound administration.

9. Function to examine and investigate complaints against schools and voluntary hospitals.

9.—(1) Subject to this Act, 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) a school in connection with the performance of its functions under section 9 of the Act of 1998, F6[or]

F7[(b) a voluntary hospital in connection with the provision by it of health and personal social services within the meaning of the Health Act 2004 in accordance with an arrangement made by it undersection 38of that Act with the Health Service Executive,]

(c) F8[…]

where, upon having carried out a preliminary examination of the matter, it appears to the Ombudsman for Children that—

(i) the action has or may have adversely affected a child, and

(ii) the action was or may have been—

(I) taken without proper authority,

(II) taken on irrelevant grounds,

(III) the result of negligence or carelessness,

(IV) based on erroneous or incomplete information,

(V) improperly discriminatory,

(VI) based on an undesirable administrative practice, or

(VII) otherwise contrary to fair or sound administration.

(2) The Ombudsman for Children may investigate an action under subsection (1)(a) only where the procedures prescribed pursuant to section 28 of the Act of 1998 have been resorted to and exhausted in relation to the action.

(3) The references to a voluntary hospital in paragraphs (b) and (c) of subsection (1) do not include references to—

(a) persons when acting on behalf of the voluntary hospital concerned and (in the opinion of the Ombudsman for Children) solely in the exercise of clinical judgement in connection with the diagnosis of illness or the care or treatment of a patient, whether formed by the person taking the action or by any other person, or

(b) the voluntary hospital concerned when acting on the advice of persons acting as aforesaid, being actions of the voluntary hospital that, in the opinion of the Ombudsman for Children, were taken solely on such advice.

(4) F8[…]

10. Preliminary examination and investigation of complaints.

10.—(1) (a) The Ombudsman for Children shall not investigate an action under section 8 or 9 unless—

(i) a complaint has been made to him or her in relation to the action by or on behalf of a child, or

(ii) it appears to him or her, having regard to all the circumstances, that an investigation under this section into the action would be warranted.

(b) A complaint may be made to the Ombudsman for Children on behalf of a child by—

(i) a parent of the child, or

(ii) any other person who, by reason of that person's relationship (including professional relationship) with the child and his or her interest in the rights and welfare of the child, is considered by the Ombudsman for Children to be a suitable person to represent the child.

(c) If a complaint is made to the Ombudsman for Children by a child or on behalf of a child by a person other than a parent of the child, the Ombudsman for Children shall, before investigating the complaint, inform a parent of the child of the complaint.

(d) In this subsection “parent”, in relation to a child, means the mother or father of the child or, where the child has been adopted under the Adoption Acts, 1952 to 1998, or outside of the State, the adopter or surviving adopter of the child, a foster parent of the child, a guardian of the child appointed under the Guardianship of Children Acts, 1964 to 1997, or other person acting in loco parentis to the child pursuant to a statutory power or order of a Court.

(2) The Ombudsman for Children may—

(a) having carried out a preliminary examination of the matter, decide not to carry out an investigation under this Act into an action in relation to which a complaint is made, or

(b) discontinue an investigation under this Act into such an action,

if he or she becomes of opinion that—

(i) the complaint is trivial or vexatious,

(ii) the child making the complaint, or on whose behalf the complaint is made, has an insufficient interest in the matter,