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22 2002

OMBUDSMAN FOR CHILDREN ACT, 2002

Chapter 4

Complaints against public bodies, schools and voluntary hospitals

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.

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,

(b) a voluntary hospital within the meaning of the Act of 1999 in connection with the provision by it of services (within the meaning of that Act) in accordance with an arrangement made by it under section 10 of that Act with the Eastern Regional Health Authority or an Area Health Board, or

(c) a voluntary hospital specified in Schedule 2 in connection with the provision by it of services under the Health Acts, 1947 to 2001, for persons eligible for such services in accordance with an arrangement made by it under section 26 of the Health Act, 1970 , with the health board within whose functional area it is situated,

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) In this section “an Area Health Board” means the Northern Area Health Board, the East Coast Area Health Board or the South-Western Area Health Board.

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,

(iii) the child making the complaint, or on whose behalf the complaint is made, has not taken reasonable steps to seek redress in respect of the subject matter of the complaint or, if he or she has, has not been refused redress, or

(iv) the lapse of time since the occurrence of the matter complained of makes effective redress impossible or impracticable.

(3) It shall not be necessary for the Ombudsman for Children to investigate an action under this Act if he or she is of opinion that the subject matter concerned has been, is being or will be sufficiently investigated in another investigation by him or her under this Act.

(4) A preliminary examination or investigation by the Ombudsman for Children shall not affect the validity of the action examined or investigated or any power or duty of the person who took the action to take further action with respect to any matters the subject of the examination or investigation.

(5) In determining whether to initiate, continue or discontinue an investigation under this Act, the Ombudsman for Children shall, subject to this Act, act in accordance with his or her own discretion.

(6) Nothing in section 8 (a) or 9(1)(i) or subsection (1)(a) shall be construed as prohibiting the investigation by the Ombudsman for Children of—

(a) an action that, in the opinion of the Ombudsman for Children, has or may have affected any child other than in an official capacity, or

(b) an action the subject of a complaint to him or her by an individual acting other than in an official capacity.

(7) (a) (i) The Government may, after consultation with the Ombudsman for Children, by order amend Schedule 1 and that Schedule shall have effect in accordance with the terms of any orders under this paragraph.

(ii) When an order is proposed to be made under this paragraph, a draft thereof shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.

(b) (i) The Minister may by order amend Schedule 2 and that Schedule shall have effect in accordance with the terms of any orders under this paragraph.

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

Exclusions.

11. —(1) The Ombudsman for Children shall not investigate any action taken by or on behalf of a public body, school or voluntary hospital—

(a) if the action is one in relation to which—

(i) civil legal proceedings in any court have been initiated on behalf of the child affected by the action and the proceedings have not been dismissed for failure to disclose a cause of action or a complaint justiciable by that court whether the proceedings have been otherwise concluded or have not been concluded,

(ii) the child affected by the action has a right, conferred by or under statute (within the meaning of section 3 of the Interpretation Act, 1937 ) of appeal, reference or review to or before a court in the State (not being an appeal, reference or review in relation to a decision of a court), or

(iii) the child affected by the action has a right of appeal, reference or review to or before a person other than a public body or, if appropriate, the school or voluntary hospital concerned,

(b) if the action relates to or affects national security or military activity or (in the opinion of the Ombudsman for Children) arrangements regarding participation in organisations of states or governments,

(c) relating to recruitment or appointment to any office or employment in a Department of State or by any other public body, school or voluntary hospital,

(d) relating to or affecting the terms or conditions—

(i) upon and subject to which a person—

(I) holds any office, or

(II) is employed in a Department of State or by any other public body, school or voluntary hospital,

(ii) of a contract for services,

(including the terms and conditions upon and subject to which pensions, gratuities or other superannuation benefits are payable to or in respect of the person or under the contract),

(e) if the action is one—

(i) taken in the administration of the law relating to asylum, immigration, naturalisation or citizenship,

(ii) involving the exercise of the right or power referred to in Article 13.6 of the Constitution or the remission of any forfeiture or disqualification imposed by a Court exercising criminal jurisdiction, or

(iii) taken in the administration of the prisons or other places for the custody or detention of children committed to custody or detention by the Courts other than reformatory schools, or industrial schools, certified under Part IV of the Children Act, 1908,

(f) if the action relates to the results of an examination (within the meaning of section 49 of the Act of 1998),

(g) in—

(i) a case where a complaint is made to the Ombudsman for Children in relation to the action, if the complaint is not made before the expiration of two years from the time of the action or the time the child making the complaint, or on whose behalf the complaint is made, became aware of the action, whichever is the later,

(ii) any other case, if the investigation is not commenced before the expiration of two years from the time of the action, or

(h) if the action—

(i) is taken before the commencement of this Act, and

(ii) is not one that may be the subject of a complaint to the Ombudsman under the Act of 1980.

(2) (a) Subsection (1)(e)(iii) shall cease to have effect on and after such date as may be specified in an order made by the Minister with the consent of the Minister for Justice, Equality and Law Reform.

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

(3) Notwithstanding subsection (1), the Ombudsman for Children may investigate—

(a) an action to which paragraph (a) of that subsection relates if it appears to him or her that special circumstances make it proper to do so,

(b) an action that would contravene paragraph (g) of that subsection if it appears to him or her that special circumstances make it proper to do so, or

(c) insurability and entitlement to benefit under the Social Welfare Acts.

(4) Where a Minister of the Government so requests in writing (and attaches to the request a statement in writing setting out in full the reasons for the request), the Ombudsman for Children shall not investigate, or shall cease to investigate, an action specified in the request, being an action of—

(a) a Department of State whose functions are assigned to that Minister of the Government, or

(b) a public body (other than a Department of State) whose business and functions are comprised in such a Department of State or in relation to which functions are performed by such a Department of State,

(whether or not all or any of the functions of that Minister of the Government stand delegated to a Minister of State at that Department of State).

Amendment of section 5 of Act of 1980.

12. —(1) Section 5(1) of the Act of 1980 is amended by—

(a) the deletion of “or” after paragraph (f),

(b) the substitution in paragraph (g) of “this Act, or” for “this Act;”, and

(c) the insertion of the following paragraph after paragraph (g):

“(gg) if the action is one to which section 8 of the Ombudsman for Children Act, 2002, applies, being an action that could otherwise be investigated by the Ombudsman under this Act;”.

(2) Notwithstanding the amendment effected by subsection (1), anything commenced but not completed by the Ombudsman under the Act of 1980 before the commencement of this section may be carried on and completed by the Ombudsman after such commencement as if this section had not been enacted.