Children and Families Act 2014

436. Section 2(3) lists some of the activities that the Commissioner may undertake in exercising the primary function. The list is not exhaustive and therefore does not place a limit on the activities the Commissioner may undertake. Many of the activities listed are carried forward from the previous legislation and updated to reflect the new primary function:

• Paragraph (a) concerns the provision of advice to relevant persons on how to act compatibly with children’s rights. This aspect of the primary function is likely to involve making recommendations to change policies or practices that the Commissioner considers have infringed or may infringe children’s rights;

• Paragraph (b) sets out that the Commissioner may also encourage relevant persons to take account of children’s views and interests. This aspect of the Commissioner’s role could include providing both general guidance on how best to involve children in the decision-making processes of organisations; and highlighting specific examples of points children have raised in the course of a particular investigation that the Commissioner has undertaken;

• Paragraph (c) carries forward a similar provision from the 2004 Act and extends it to cover “rights” (as well as views and interests) to reflect the change to the Commissioner’s primary function;

• Paragraph (d) makes clear that in the discharge of the primary function, the Commissioner can assess the potential impact that proposed new policies or legislation may have on children’s rights. It will be for the Commissioner to determine whether to carry out such assessments and on which issues;

• Paragraph (e) makes it clear that the Commissioner may, in particular, bring any matter to the attention of Parliament. Relevant matters could be raised, for example, through the Commissioner’s annual report to Parliament or by writing to the chair of a relevant Select Committee;

• Paragraphs (f), (g) and (h) reflect similar provisions in the 2004 Act. In each provision, the words “consider or research” have been replaced with “investigate”. In addition, paragraph (g) contains a new provision, linked to paragraph (f), that concerns investigations of the availability and effectiveness (rather than “operation”) of advocacy services for children. In carrying out these activities, the Commissioner will want to be satisfied that there is adequate provision in place, and that services are easily accessible, and respond effectively to the issues raised by children;

• Paragraph (h) broadly replicates a provision from the 2004 Act, clarifying that the Commissioner has wide discretion over other matters that he or she chooses to investigate, but provides for this to cover the rights (as well as the interests of) children – to reflect the change to the Commissioner’s primary function;

• Paragraph (i) makes clear that the Commissioner’s primary function of promoting and protecting rights may include reporting on the implementation of the United Nations Convention on the Rights of the Child (UNCRC) in England (and, under sections 5 to 7, in Wales, Scotland and Northern Ireland, as regards non-devolved matters). Formal reporting to the UN Committee remains the responsibility of the State Party, but this provision makes it clear that the Commissioner may carry out his or her own independent assessments;

• Paragraph (j) confirms that the Commissioner is able to publish a report on any matter that he or she has considered or investigated under the Commissioner’s primary function. It will be for the Commissioner to determine whether to publish a report.