What gap is closed by an ombuds office for children’s rights?

16 June 2022

Almost two years have gone by since Parliament approved the bill to create an ombuds office for children’s rights. It is now time for the federal administration to act.

By passing this legislation, Parliament acknowledged the void that was accurately described in the bill: despite the existence of at least 58 children’s rights organisations including seven cantonal ombuds offices as well as other such facilities at the local level, there remains a need for yet another ombuds office for children’s rights. How is this possible?

The answer is obvious: first off, because only a low-threshold, barrier-free ombuds office for children’s rights operating independently from the administration on behalf of all children across Switzerland guarantees access to justice and makes the justice system child-friendlier by drawing on its experience with individual cases. And secondly, because such an ombuds office for children’s rights needs to fulfil special requirements compared to existing cantonal and local ombuds offices. But first things first.

Legal advice in the event of contact with the legal system

Basic requirements for ombuds offices have been intensively discussed at the international level and articulated in the Venice Principles. Significant aspects related to national human rights institutions are described as well in the Paris Principles. According to these pronouncements, an ombuds office is an institution that acts independently in the event of complaints of maladministration and suspected violations of human rights and fundamental freedoms. The right to file grievances before an ombuds office complements the right of access to justice. At least at the legislative level, this requires a solid legal grounding with a broad mandate under public law and a right to information.

Children and youth are affected under many areas of the law ranging from criminal, child-protective and family law to education and alien law. In the context of the legal system, children and youth have a compelling need for information on an appropriate level, legal advice and, above all, intermediation of their contacts with specialists. When children’s law and procedural law are violated, the ability of children and youth to act in their own defence is not equal to that of adults. In particular, children and youth lack sufficient capacity to appoint an attorney to represent their interests. This situation calls for an ombuds office for children’s rights that can protect their rights and redress the balance of power. This especially concerns the right to be heard and, where grievance proceedings become necessary, the right to have legal representation. It is precisely in this sense where a low-threshold ombuds office for children’s rights becomes a necessity for children with disabilities: as a vulnerable group, such children require special protection and access to the legal system. All children have the right to a decision in the best interest of the child.

For such an office to be effective as stipulated by the Venice Principles, it must be independent, objective, transparent, fair and impartial, further requiring a mandate under public law. A national solution ensures that all children and youth, whether at the local, cantonal, national or even international level of review, will always enjoy access to justice. This is particularly important in the context of inter-cantonal or international situations.

Individualised legal advice and system expertise

It is important that the ombuds office for children’s rights be effective not only in individual cases but also at a systemic level. To achieve this, it must allow practice-oriented knowledge generated through the intermediation process to feed into specialised legal training and to become further disseminated into the areas of policy and administration. It is only when all this occurs within a single entity that these two threads can enrich each other and enhance the justice system’s propriety for children as well as the legal system’s quality management.

When the ombuds office for children’s rights is described in this way, grounded in international covenants, it becomes apparent that this role has hitherto not been fulfilled by any of the existing children’s rights organisations. Our Ombuds Office for Children’s Rights under private law closes this gap as a transitional pilot scheme.

The model of multiple ombuds offices is important for children

Existing ombuds offices operated by cantons and municipalities perform indispensable and valuable functions. For a variety of reasons, however, they are unable to bridge all the gaps in children’s rights:

In their public administration, they are respectively limited to the cantonal and local levels where they are located.
They primarily serve as points of contact for adult citizens and administrative employees and are not fully equipped to deal with the special needs of children and youth.
They deal with maladministration complaints only to the extent that courts have not already become involved in these. While such framework conditions make sense to adults, the situation is different from the outset for the ombuds office for children’s rights: the office actively intervenes when grievances are brought against the legal system, conducting no proceedings of its own but acting instead to ensure access to existing appeal mechanisms and legal authorities. Within the justice system and procedural review, grievance proceedings are led by qualified legal representatives who remain independent from the ombuds office. They possess the necessary authority to examine records and the capacity to conduct proceedings through all judicial levels up to the European Court of Human Rights and even the UN Committee on the Rights of the Child.
There are no comprehensive ombuds offices at local or cantonal levels, nor do these exist at the federal level. Only a national ombuds office for children’s rights can ensure uniform reporting, recommendations and knowledge transfer within the government across all three levels of legislative, executive and judicial authorities.

The gaps to be filled by the ombuds office for children’s rights are clear – and these are accurately described in the bill. It is our hope that children and youth can benefit from a political process that can swiftly create a public ombuds office for children’s rights capable of acting on a national scale to perform its functions and duties completely, independently and effectively.