The consultation on the implementation of motion 19.3633 ‘Ombuds Office for Children’s Rights’ was finished in late March. As reported in February (see blog post), the private-law Ombuds Office Children’s Rights Switzerland rejects the Federal Council’s proposal as an implementation of Noser’s motion. Instead of this, it advocates for a dispatch at the level of federal legislation which would lay the foundations for creating a national, contemporary, independent, low-threshold public-law Ombuds Office for Children’s Rights. You can find our definitive statement to this effect here.
In the meantime, other organisations and parties have published their own statements. It is an encouraging sign that Noser’s motion 19.3633 ‘Ombuds Office for Children’s Rights’ and its basic demand have been met with overwhelming support. Almost all professional organisations agree that the way of proceeding proposed by the Federal Council is insufficient and are calling for an effective implementation of Noser’s motion. Many other key stakeholders from the cantons, the majority of political parties and numerous other organisations also take this view.
Widespread demand shows the urgency of a comprehensive national solution
In light of this widespread participation, the matter may well bear being discussed once again in the Federal Council and perhaps also in the national Parliament. The Ombuds Office Children’s Rights Switzerland hopes that the Federal Council and Parliament will acknowledge the urgency of what is being called for and take the necessary steps accordingly – all the more so in the context of the high expectations that became apparent in the course of the consultation.
The need for the Ombuds Office being called for is uncontested in relevant sectors of work and also has broad-based political support. This becomes all the more plain to see in light of the suffering that those directly affected would have been spared if an office of this kind existed. Careleaver Schweiz, which works to improve future opportunities and provide support for (former) foster children and children in the care system in order to help them find their footing as young adults, bears mentioning in this regard. In their statement, they explain why an office of this kind would be so crucial for people faced with very challenging situations in their early years in particular. This applies in the sense of equal opportunities, as well as in terms of preventing injustice that has severe societal, social and financial consequences.
Policy expectations from the perspective of children’s rights
For this reason, the Ombuds Office Children’s Rights drew up draft legislation around two years ago that was provided as input to the competent bodies when political discussions commenced. This draft laid a valuable foundation for further work and discussions, which have now proven necessary, towards a comprehensive solution at the national level. The proposal incorporated practical findings as well as extensive feedback and experience from professional circles and from discussions with relevant professionals.
Based on this experience, a public-law office for children’s rights, properly tailored to children and in addition to the current legal landscape, would require the following conditions and structures, i.e. it would involve the following core tasks:
- A legal basis with a public-law mandate;
- A focus on legal advice and intermediary services;
- A right to information for the purpose of information exchange;
- Authorisation to make recommendations;
- Independent and nationwide with presences in the different regional languages;
- Contemporary, low-threshold, multi-lingual and barrier-free access for all children in Switzerland;
- Proven expertise in working with children;
- The necessary legal knowledge in all areas of law;
- Safeguarding rights in important stages and areas of children’s lives, such as early childhood, school, sport, health, divorce/separation of parents, protection of children from physical, psychological and sexual abuse, neglect, criminal offences, poverty (social welfare), discrimination, racism, migration;
- Ensuring access to justice and existing complaint mechanisms and rights, including the right to information, to be heard and to legal representation;
- Right to appoint an independent legal representative for children who are not capable of judgement (if the competent authorities and courts do not appoint one themselves);
- Networking and cooperation with all stakeholders in the legal system;
- Promoting children’s rights through practical experience;
- Presenting an annual report to the legislature, executive and judiciary at the federal and cantonal levels;
- To ensure independence from the executive and the judiciary, the mandate should be issued by a sub-committee (Council of States (cantons) and National Council) of the Political Institutions Committee (PIC) of the Swiss Parliament;
- The investment of two million Swiss francs per year.
Based on the experience of the private-law model project, these conditions and the volume of investment required will be sufficient to carry out the tasks effectively and in the long term. The investment will pay off because there will be fewer appeals and legal costs across all avenues of appeal will therefore be reduced. Furthermore, escalations will be avoided, proceedings will be made briefer and miscarriages of justice with expensive cost implications will be minimised.
The proposed demarcations of responsibilities ensure constitutionality
These conditions also make apparent the need for clear demarcations of responsibilities. In this regard, the Ombuds Office is intended to serve as an overarching, supporting and coordinating body and to intervene quickly in an intermediary capacity and as the situation demands in cases of violation of rights in order to safeguard the rights of children and young people. The direct work with children and young people will continue to be carried out by local professionals such as (school) social workers, psychologists, mediators, members of the Child and Adult Protection Authority (CAPA), judges, youth prosecutors, police officers, legal representatives and other specialist services. These professionals are indispensable when it comes to providing the required help and support at the local level and enforcing children’s rights on the ground.
As an Ombuds Office must be independent and impartial, and because local professionals are not replaced but only temporarily intervened with on an intermediary basis and as the situation demands, there is no right of access to documents necessary. Right to information is sufficient. In addition, it would not conduct any legal proceedings and would have no right of appeal to take legal action. There are local legal representatives for this purpose. The same applies to investigations; here, too, the local investigating authorities hold the responsibility. Furthermore, the Ombuds Office would not have any systematic power of supervision over federal offices and cantons. In cases where it must report to a supervisory authority, then the supervisory authorities of the federal government, cantons and municipalities are responsible.
When it comes to these points in particular, the various professional organisations have differing expectations as to what the responsibilities of a public-law Ombuds Office for Children’s Rights should be. In light of this, the critical view of the Federal Social Insurance Office (FSIO) with regard to constitutionality in its explanatory report on the consultation procedure makes sense. However, with the limited responsibilities listed, an office of this kind would absolutely comply with the Federal Constitution and, at the same time, the principle of subsidiarity and the current demarcations of responsibilities. The comparable – and constitutional – Swiss Sport Integrity reporting office in particular also demonstrates this. It too accepts reports from children, adolescents and young adults from local sports organisations at the national level and is fully financed by the federal government. In order to achieve the effective Ombuds Office for all children in Switzerland at the national level that people are hoping for, the necessary responsibilities must therefore be weighed up carefully if it is to fulfil its purpose successfully.
Results and findings as to how to proceed are expected from the federal government in the next few months
The Ombuds Office Children’s Rights Switzerland is convinced that with the available statements from key stakeholders from the field of social and children’s policyand with the aforementioned draft legislation, it should be possible to develop a revised implementation plan at the federal level relatively quickly. In the best-case scenario, and with the corresponding necessary commitment from administration and politics, a relevant law could come into effect as early as 2026. This is based on the example of the aforementioned Swiss Sport Integrity reporting office, which was set up within the space of a year.
For the time being, however, we will have to wait for the evaluation of the consultation process and the federal government's planned course of action. The statements in question by the consultation participants are expected to be published in the next few weeks at the following link. The report of results is expected by the third quarter at the latest. The Federal Council will then decide on the further course of action.
In the meantime, the Ombuds Office Children’s Rights Switzerland will continue to apply its 17 years of practical experience in the field of children’s rights and the insights from the model project/pilot project to a better and more child-friendly justice system. Children have rights as individuals. The state must respect these rights and set conditions accordingly. It is time for Switzerland to face up to its obligations and, among other things, to finally effectively implement the UN Convention on the Rights of the Child, which was ratified as far back as 1997 – for the benefit of society and, above all, for the benefit of our children.
