Document Type

Working Paper

Publication Date

2013

Subjects

accountability; administrative law; children's representatives; children's rights; institutional design; ombudsman; parliamentary officer

Abstract

This paper explores hybrid models of oversight through an examination of a new institutional creation: British Columbia’s Representative for Children and Youth (BC RCY). The paper argues that societal changes in the conception of children’s worth have significantly affected approaches to child welfare and have also stimulated institutional innovation. The paper begins with a historical overview of the legal and moral status of children, focusing on the child as the subject of government protection, and then considers the evolution of children’s rights in the twentieth century. This conceptual shift from children as passive objects of paternal state care to (near) autonomous citizens with moral status and legal rights underpins most modern institutional reforms. Concurrent strong critiques of traditional lawyer-advocate forms of representation in common law adversarial systems also contributed to the better representation of children in institutional processes. Since the 1970s, a number of alternative institutions have emerged including the creation of expert bodies for child advocacy, the American model of citizen volunteers as guardians ad litem, and the establishment of ombuds and other independent agencies devoted to child welfare. Children's capacity to participate in the important decisions affecting their lives was therefore enhanced. Ten children’s advocacy offices currently exist in Canada and all actively seek and hear complaints as well as engage in individual and systemic advocacy and policy reform. The functions and procedures of these children’s advocacy agencies approximate an inquisitorial model. Notably, the BC RCY has emerged as a hybrid model incorporating inquisitorial, ombuds, and common law features. The BC RCY is an independent legislative officer who possesses the powers of a commissioner of inquiry. The BC RCY also performs many ombuds functions such as systemic and policy advocacy, public outreach and education. Lastly, the BC RCY indirectly incorporates several features from the common law adversarial model. Although the creation of the BC RCY is a positive development, this model of oversight remains vulnerable to various challenges ranging from political set-backs, threats to independence, budget cuts, and the particular problems federal jurisdictions face. The BC RCY offers important lessons regarding the effectiveness of these types of investigative bodies, both in Canada and internationally. The paper concludes with a brief comparison of domestic and international models of children's representatives.

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