Children's Commissioner Act 2003: Functions, Powers, and Duties, Schemes and Mind Maps of Law

Download Children's Commissioner Act 2003: Functions, Powers, and Duties and more Schemes and Mind Maps Law in PDF only on Docsity! Reprint as at 1 December 2014 Children’s Commissioner Act 2003 Public Act 2003 No 121 Date of assent 25 November 2003 Commencement see section 2 Contents Page 1 Title 3 Part 1 Preliminary provisions 2 Commencement 3 3 Purposes 3 4 Interpretation 4 5 Act binds the Crown 4 Part 2 Appointment, functions, and powers of Commissioner Provisions relating to constitution and appointment of Commissioner 6 Office of Children’s Commissioner continued 5 7 Appointment of Commissioner 5 8 Appointee must consent to appointment and disclose interests [Repealed] 6 9 Term of office [Repealed] 6 Note Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint. Note 4 at the end of this reprint provides a list of the amendments incorporated. This Act is administered by the Ministry of Social Development. 1 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 10 Removal of officeholder [Repealed] 6 Functions, powers, and duties of Commissioner 11 Matters to which Commissioner must have regard in exercising functions or powers 7 12 General functions of Commissioner 7 13 Functions in relation to Children, Young Persons, and Their Families Act 1989 9 14 Commissioner to develop means of consulting with children 9 15 Capacity and powers [Repealed] 10 16 Duties [Repealed] 10 Provisions relating to investigations 17 Commissioner’s investigations must have regard to rights or interests and welfare of children 10 18 Commissioner may not investigate courts or tribunals 10 19 Referrals of matters to certain statutory officers 10 20 Special powers to call for information or documents 11 21 Compliance with requirement to provide information or document 12 22 Commissioner and staff must maintain secrecy 13 23 Consultation with other statutory officers 13 24 Access to court records 14 25 Commissioner must not make adverse comment unless opportunity to be heard is given 15 26 Commissioner may regulate procedure for investigations 15 Immunities and privileges 27 Proceedings privileged 15 Matters of administration 28 Annual report [Repealed] 16 29 Money to be appropriated for purposes of this Act [Repealed] 17 30 Provisions applying to Commissioner 17 Part 3 Transitional and miscellaneous provisions 31 Continuation of office, appointment of Commissioner, and employment of employees 17 32 Application of Act to matters commenced under Children, Young Persons, and Their Families Act 1989 18 2 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Part 2 s 7 Part 2 Appointment, functions, and powers of Commissioner Provisions relating to constitution and appointment of Commissioner 6 Office of Children’s Commissioner continued (1) There continues to be a Commissioner called the Children’s Commissioner, being the Commissioner who, immediately before the commencement of this Act, was known as the Commissioner for Children. (2) The Commissioner is— (a) a corporation sole; and (b) a Crown entity for the purposes of section 7 of the Crown Entities Act 2004; and (c) the board for the purposes of the Crown Entities Act 2004. (3) The Crown Entities Act 2004 applies to the Commissioner ex- cept to the extent that this Act expressly provides otherwise. (4) [Repealed] Compare: 1989 No 24 ss 410(2), 421 Section 6(2): substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). Section 6(3): substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). Section 6(4): repealed, on 25 January 2005, by section 200 of the CrownEntities Act 2004 (2004 No 115). 7 Appointment of Commissioner (1) [Repealed] (2) [Repealed] (3) Before recommending the appointment of a Commissioner under section 28(1)(b) of the Crown Entities Act 2004, the Minister must— (a) notify the vacancy or prospective vacancy in a man- ner sufficient to enable suitably qualified individuals to apply for appointment; and (b) have regard to the desirability of consulting any organ- isations or persons that, in the opinion of the Minister, 5 Part 2 s 8 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 have a special interest in the functions of the Commis- sioner; including, without limitation, organisations rep- resenting children and children themselves. (4) [Repealed] (5) The appointment of a Judge as Commissioner does not affect the Judge’s tenure of the judicial office or the Judge’s rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as a Judge (including those in relation to superannuation) and, for all purposes, the Judge’s service as Commissioner is service as a Judge. (6) [Repealed] Section 7(1): repealed, on 25 January 2005, by section 200 of the CrownEntities Act 2004 (2004 No 115). Section 7(2): repealed, on 25 January 2005, by section 200 of the CrownEntities Act 2004 (2004 No 115). Section 7(3): amended, on 25 January 2005, by section 200 of the Crown En- tities Act 2004 (2004 No 115). Section 7(4): repealed, on 25 January 2005, by section 200 of the CrownEntities Act 2004 (2004 No 115). Section 7(6): repealed, on 25 January 2005, by section 200 of the CrownEntities Act 2004 (2004 No 115). 8 Appointee must consent to appointment and disclose interests [Repealed] Section 8: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 9 Term of office [Repealed] Section 9: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 10 Removal of officeholder [Repealed] Section 10: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 6 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Part 2 s 12 Functions, powers, and duties of Commissioner 11 Matters to which Commissioner must have regard in exercising functions or powers In performing or exercising the Commissioner’s functions or powers under this Act, the Commissioner must have regard to the following matters: (a) the Convention: (b) the principle that the Commissioner should give serious consideration to the views of children and take those views into account: (c) the principle that the Commissioner should recognise the diversity of children in New Zealand: (d) the principles stated in sections 5 and 6 of the Chil- dren, Young Persons, and Their Families Act 1989, so far as they are applicable and with all necessary modi- fications. 12 General functions of Commissioner (1) The general functions of the Commissioner are— (a) to investigate any decision or recommendationmade, or any act done or omitted (other than a decision, recom- mendation, or act to which section 13(1)(a) applies), in respect of any child in that child’s personal capacity: (b) to promote the establishment of accessible and effective complaints mechanisms for children and to monitor the nature and level of complaints: (c) to raise awareness and understanding of children’s inter- ests, rights, and welfare: (d) to raise awareness and understanding of the Conven- tion: (e) to undertake and promote research into any matter that relates to the welfare of children: (f) to act as an advocate for children’s interests, rights, and welfare generally (except before any court or tribunal), and, in that regard, to advance and monitor the appli- cation of the Convention by departments of State and other instruments of the Crown: (g) if there are issues in proceedings before any court or tribunal that relate to the Convention or to the interests, 7 Part 2 s 15 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 the exercise or performance of the Commissioner’s functions under section 12(1)(f), (g), (i), or (l) or under section 13(1)(d) or (e). 15 Capacity and powers [Repealed] Section 15: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 16 Duties [Repealed] Section 16: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). Provisions relating to investigations 17 Commissioner’s investigations must have regard to rights or interests and welfare of children In conducting an investigation, the Commissioner must have regard to the question whether the rights or the welfare and interests of 1 or more children have been prejudiced. 18 Commissioner may not investigate courts or tribunals (1) Despite anything in this Act, the Commissioner may not inves- tigate any decision or recommendation, or any act or omission, of a court or a tribunal. (2) If any matter is the subject of proceedings before a court or a tribunal, the Commissioner may not commence or (if the Commissioner has commenced an investigation) continue an investigation into the matter until the proceedings are finally determined. 19 Referrals of matters to certain statutory officers (1) If, in the course of conducting or proposing to conduct an in- vestigation, the Commissioner considers that the subject mat- ter of the investigation relates, in whole or in part, to a matter that is more properlywithin the scope of the functions of one of the statutory officers specified in subsection (4), the Commis- sioner must, without delay, consult with that officer in order 10 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Part 2 s 20 to determine the appropriate means of dealing with the subject matter. (2) As soon as practicable after consulting with the officer con- cerned, the Commissioner must determine whether the subject matter should be dealt with, in whole or in part, under this Act. (3) If the Commissioner determines that the subject matter should be dealt with, in whole or in part, by one of the officers speci- fied in subsection (4), the Commissioner must, without delay, refer the subject matter or, as the case requires, the appropriate part of the subject matter to that officer. (4) The statutory officers referred to in subsection (1) are— (a) the Chief Commissioner under the Human Rights Act 1993: (b) the chief executive of the department for the time be- ing responsible for the administration of the Children, Young Persons, and Their Families Act 1989: (c) the Commissioner of Police: (d) the Health and Disability Commissioner: (e) the Chief Ombudsman exercising jurisdiction under the Ombudsmen Act 1975: (f) the Independent Police Conduct Authority: (g) the Privacy Commissioner. Compare: 1993 No 28 s 72 Section 19(4)(f): amended, on 29 November 2007, by section 26 of the Inde- pendent Police Conduct Authority Amendment Act 2007 (2007 No 38). 20 Special powers to call for information or documents (1) If the conditions stated in subsection (2) are satisfied, the Com- missioner may, by notice in writing, require any person— (a) to provide the Commissioner or a specified employee of the Commissioner with any information the Commis- sioner requires; or (b) to produce to the Commissioner or a specified employee of the Commissioner any document in the custody or under the control of that person, and to allow copies of, or extracts from, any such document to be made or taken; or (c) to furnish to the Commissioner or to a specified em- ployee of the Commissioner copies or extracts from 11 Part 2 s 21 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 documents in the custody or under the control of that person. (2) The conditions referred to in subsection (1) are that— (a) the Commissioner believes, on reasonable grounds, that the exercise of the powers conferred by that subsection are necessary to enable the Commissioner to carry out an investigation; and (b) the person to whom a notice under that subsection is to be given has failed to comply with a previous request to provide the Commissioner, within a reasonable time, with the information or document or extract required by the notice; and (c) the Commissioner believes, on reasonable grounds, that— (i) it is not reasonably practicable to obtain the in- formation or document from another source; or (ii) for the purposes of the investigation, it is neces- sary to obtain the information or document to ver- ify or refute information obtained from another source. 21 Compliance with requirement to provide information or document (1) A person to whom a notice under section 20 is given must, without charge, comply with the requirement stated in the no- tice in the manner and within a period (being not less than 20 working days after the notice is given to the person) speci- fied in the notice. (2) Subsection (1) does not require a person to provide any infor- mation or produce any document that would be privileged in a court of law. (3) Every person commits an offence, and is liable on conviction to a fine not exceeding $2,000, who, when required to comply with a notice given under section 20,— (a) refuses or fails without reasonable excuse to comply with the notice; or (b) knowingly or recklessly provides information that is false or misleading in any material particular. 12 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Part 2 s 27 (a) section 15; or (b) any other enactment that— (i) enables the Commissioner to access court records; or (ii) restricts access to court records. 25 Commissioner must not make adverse comment unless opportunity to be heard is given Despite anything in this Act or the Crown Entities Act 2004, the Commissioner must not, in any report or statement made under this Act, make any comment that is adverse to a person if the Commissioner has not given the person an opportunity to be heard. Compare: 1989 No 24 s 414 Section 25: amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 26 Commissioner may regulate procedure for investigations The Commissioner may regulate the procedure for any inves- tigation under this Act in any manner, not inconsistent with this Act, that the Commissioner thinks fit. Immunities and privileges 27 Proceedings privileged (1) [Repealed] (2) No civil or criminal proceedings may be brought against the officeholder or a former officeholder or against a person who is or has been an employee of the Commissioner for anything done or omitted in the course of the exercise or intended ex- ercise of functions under this Act unless it is shown that the person concerned acted in bad faith. (3) Neither the officeholder nor a former officeholder nor a person who is or has been an employee of the Commissioner may be called to give evidence in any court, or in any proceedings of a judicial nature, in respect of anything that comes to the knowledge of the person concerned in the exercise of functions or powers under this Act. 15 Part 2 s 28 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 (4) Nothing in subsection (2) or subsection (3) applies in respect of proceedings for— (a) an offence against section 78 or section 78A(1) or sec- tion 105 or section 105A or section 105B of the Crimes Act 1961; or (b) the offence of conspiring to commit an offence against section 78 or section 78A(1) or section 105 or section 105A or section 105B of the Crimes Act 1961; or (c) the offence of attempting to commit an offence against section 78 or section 78A(1) or section 105 or section 105A or section 105B of the Crimes Act 1961. (5) Nothing in subsection (3) applies to any report made by the Commissioner to a court under section 12(1)(g). (5A) Sections 122 to 126 of the Crown Entities Act 2004 apply as if the conduct for which a person may be indemnified or insured under those sections were conduct that is covered by the pro- tection from liability in this section. (5B) This section contains an exception to section 121 of the Crown Entities Act 2004. (6) Anything said or any information supplied or any document, paper, or thing produced by a person in the course of an inves- tigation by the Commissioner under this Act is privileged in the same manner as if the investigation were a proceeding in a court. (7) For the purposes of clause 3 of Part 2 of Schedule 1 of the Defamation Act 1992, any report made by the Commissioner under this Act is to be taken to be an official report. Section 27(1): repealed, on 25 January 2005, by section 200 of the Crown En- tities Act 2004 (2004 No 115). Section 27(5A): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). Section 27(5B): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). Matters of administration 28 Annual report [Repealed] Section 28: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 16 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Part 3 s 31 29 Money to be appropriated for purposes of this Act [Repealed] Section 29: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 30 Provisions applying to Commissioner The provisions in Schedule 1 apply to the Commissioner. Part 3 Transitional and miscellaneous provisions 31 Continuation of office, appointment of Commissioner, and employment of employees (1) The office continued by section 6 is the office of Commis- sioner for Children as established by section 410 of the Chil- dren, Young Persons, and Their Families Act 1989, and, ac- cordingly, every reference to the Commissioner for Children in an enactment or document made before the commencement of this Act is a reference to the Children’s Commissioner con- tinued by section 6. (2) On the commencement of this Act, the person who, immedi- ately before that commencement, held office as Commissioner for Children under the Children, Young Persons, and Their Families Act 1989 is to be taken to have been appointed as Commissioner under this Act— (a) for a term that, immediately before that commence- ment, represented the remainder of the person’s term as Commissioner for Children; and (b) subject to the conditions of employment, determined under section 417 of that Act, that applied to the person immediately before that commencement; and (c) subject to any determination made under section 47 of the Crown Entities Act 2004 (with any such determin- ation prevailing if, and to the extent that, it is more favourable to the person than any of the conditions of employment referred to in paragraph (b)). (3) The Remuneration Authority is not obliged to make a deter- mination under section 47 of the Crown Entities Act 2004 of the salary and allowances of the person to whom subsection 17 Schedule 1 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 Schedule 1 s 30 Provisions applying to Commissioner Terms and conditions of appointment 1 Concurrent offices and disclosure of interests [Repealed] Schedule 1 clause 1: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 2 When officeholder has private or business interest [Repealed] Schedule 1 clause 2: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 3 Consequences of private or business interest or matter [Repealed] Schedule 1 clause 3: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 4 Resignation [Repealed] Schedule 1 clause 4: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 5 Salaries and allowances [Repealed] Schedule 1 clause 5: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 6 Superannuation or retiring allowances (1) For the purpose of providing a superannuation fund or retir- ing allowance for the officeholder, sums by way of subsidy or contribution may be paid into any retirement scheme (within the meaning of section 6(1) of the Financial Markets Conduct Act 2013). (2) Despite anything in this Act, any person who, immediately before being appointed as the Commissioner or as an em- ployee of the Commissioner, is a contributor to the Govern- ment Superannuation Fund under Part 2 or Part 2A of the Gov- 20 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Schedule 1 ernment Superannuation Fund Act 1956 is considered, for the purposes of that Act, to be employed in the Government ser- vice so long as that person continues to hold office as the Com- missioner or as an employee of the Commissioner, and that Act applies to that person in all respects as if service as or for the Commissioner were Government service. (3) Subject to the Government Superannuation Fund Act 1956, nothing in subclause (2) entitles a person to become a contribu- tor to the Government Superannuation Fund after the person has ceased to be a contributor. (4) For the purposes of applying the Government Superannuation Fund Act 1956, in accordance with subclause (2), to a person who holds office as the Commissioner or as an employee of the Commissioner and is a contributor to the Government Super- annuation Fund, the term controlling authority, in relation to any such person, means the Commissioner. Schedule 1 clause 6(1): amended, on 1 December 2014, by section 150 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70). Schedule 1 clause 6(1): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). Employees [Repealed] Heading: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 7 Employees [Repealed] Schedule 1 clause 7: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 8 Chief executive [Repealed] Schedule 1 clause 8: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 9 Commissioner to be good employer [Repealed] Schedule 1 clause 9: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 21 Schedule 1 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 10 Application of certain Acts to Commissioner and employees [Repealed] Schedule 1 clause 10: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). Delegations 11 Ability to delegate (1) Despite section 73 of the Crown Entities Act 2004, the Com- missioner may delegate any of the functions and powers of the Commissioner, either generally or specifically, only to— (a) an employee of the Commissioner; or (b) any other person or persons approved by the Minister; or (c) any class of persons comprised of any of the persons listed in paragraphs (a) and (b). (2) The Commissioner may not delegate— (a) the power to call for information and documents under section 20; or (b) [Repealed] (c) the power to appoint attorneys under clause 15. (3) Despite subclause (2), the Commissioner may, with the prior approval of the Minister, delegate to any employee of the Commissioner 1 or more of the powers referred to in that subclause. (4) A delegate may exercise a power delegated under subclause (3) only during a vacancy in the office of the Commissioner or during the absence for any reason of the Commissioner. Schedule 1 clause 11(1): substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). Schedule 1 clause 11(2)(b): repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 12 Effect of delegation [Repealed] Schedule 1 clause 12: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). 22 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Preamble Schedule 2 s 36 United Nations Convention on the Rights of the Child Convention on the Rights of the Child Preamble The States Parties to the present convention, Considering that, in accordance with the principles pro- claimed in the Charter of the United Nations, recogni- tion of the inherent dignity and of the equal and inalien- able rights of all members of the human family is the foundation of freedom, justice and peace in the world, Bearing in mind that the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamen- tal human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom, Recognising that the United Nations has, in the Uni- versal Declaration of Human Rights and in the Inter- national Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and free- doms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that child- hood is entitled to special care and assistance, Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly chil- dren, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognising that the child, for the full and harmonious development of his or her personality, should grow up 25 Preamble Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 in a family environment, in an atmosphere of happiness, love and understanding, Considering that the child should be fully prepared to live an individual life in society and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity, Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assem- bly on 20November 1959 and recognised in the Univer- sal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in Articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in Article 10) and in the statutes and relevant instruments of specialised agencies and international organisations concerned with the welfare of children, Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his phys- ical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”, Recalling the provisions of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internation- ally; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules); and the Declaration on the Protection ofWomen and Children in Emergency and Armed Conflict, Recognising that, in all countries in the world, there are children living in exceptionally difficult conditions and that such children need special consideration, Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child, 26 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Schedule 2 Recognising the importance of international co-oper- ation for improving the living conditions of children in every country, in particular in the developing countries, Have agreed as follows: Part I Article 1 For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier. Article 2 1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, lan- guage, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members. Article 3 1. In all actions concerning children, whether undertaken by pub- lic or private social welfare institutions, courts of law, admin- istrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 27 Schedule 2 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 Part I—continued Article 9—continued the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the where- abouts of the absent member(s) of the family unless the provi- sion of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the sub- mission of such a request shall of itself entail no adverse con- sequences for the person(s) concerned. Article 10 1. In accordance with the obligation of States Parties under Art- icle 9, paragraph 1, applications by a child or his or her par- ents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no ad- verse consequences for the applicants and for the members of their family. 2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional cir- cumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obliga- tion of States Parties under Article 9, paragraph 2, States Par- ties shall respect the right of the child and his or her parents to leave any country, including their own, subject only to such re- strictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), pub- lic health or morals or the rights and freedoms of others and are consistent with the other rights recognised in the present Convention. Article 11 1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad. 30 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Schedule 2 Part I—continued Article 11—continued 2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements. Article 12 1. States Parties shall assure to the child who is capable of form- ing his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative pro- ceedings affecting the child, either directly, or through a repre- sentative or an appropriate body, in a manner consistent with the procedural rules of national law. Article 13 1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart infor- mation and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice. 2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; or (b) For the protection of national security or of public order (ordre public), or of public health or morals. Article 14 1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to 31 Schedule 2 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 Part I—continued Article 14—continued the child in the exercise of his or her right in a manner consis- tent with the evolving capacities of the child. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are ne- cessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. Article 15 1. States Parties recognise the rights of the child to freedom of association and to freedom of peaceful assembly. 2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law andwhich are necessary in a democratic society in the interests of na- tional security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Article 16 1. No child shall be subjected to arbitrary or unlawful interfer- ence with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2. The child has the right to the protection of the law against such interference or attacks. Article 17 States Parties recognise the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall: (a) Encourage themassmedia to disseminate information andma- terial of social and cultural benefit to the child and in accord- ance with the spirit of Article 29; 32 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Schedule 2 Part I—continued Article 21—continued given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognise that inter-country adoptionmay be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable man- ner be cared for in the child’s country of origin; (c) Ensure that the child concerned by inter-country adoption en- joys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present Art- icle by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs. Article 22 1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domes- tic law and procedures shall, whether unaccompanied or ac- companied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the en- joyment of applicable rights set forth in the present Conven- tion and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, States Parties shall provide, as they con- sider appropriate, co-operation in any efforts by theUnitedNa- tions and other competent intergovernmental organisations or non-governmental organisations co-operating with the United Nations to protect and assist such a child and to trace the par- ents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of 35 Schedule 2 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 Part I—continued Article 22—continued the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily de- prived of his or her family environment for any reason, as set forth in the present Convention. Article 23 1. States Parties recognise that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community. 2. States Parties recognise the right of the disabled child to spe- cial care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those respon- sible for his or her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents or others caring for the child. 3. Recognising the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present Art- icle shall be provided free of charge, whenever possible, tak- ing into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, prepar- ation for employment and recreation opportunities in a man- ner conducive to the child’s achieving the fullest possible so- cial integration and individual development, including his or her cultural and spiritual development. 4. States Parties shall promote, in the spirit of international co-operation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dis- semination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In 36 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Schedule 2 Part I—continued Article 23—continued this regard, particular account shall be taken of the needs of developing countries. Article 24 1. States Parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. 2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: (a) To diminish infant and child mortality; (b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the de- velopment of primary health care; (c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dan- gers and risks of environmental pollution; (d) To ensure appropriate pre-natal and post-natal health care for mothers; (e) To ensure that all segments of society, in particular par- ents and children, are informed, have access to educa- tion and are supported in the use of basic knowledge of child health and nutrition, the advantages of breast- feeding, hygiene and environmental sanitation and the prevention of accidents; (f) To develop preventative health care, guidance for par- ents and family planning education and services. 3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. 4. States Parties undertake to promote and encourage inter- national co-operation with a view to achieving progressively 37 Schedule 2 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 Part I—continued Article 28—continued with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries. Article 29 1. States Parties agree that the education of the child shall be directed to: (a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fun- damental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, eth- nic, national and religious groups and persons of indi- genous origin; (e) The development of respect for the natural environ- ment. 2. No part of the present Article or Article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present Article and to the requirements that the educa- tion given in such institutions shall conform to such minimum standards as may be laid down by the State. 40 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Schedule 2 Part I—continued Article 30 In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minor- ity or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own cul- ture, or profess and practise his or her own religion, or to use his or her own language. Article 31 1. States Parties recognise the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts. 2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encour- age the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity. Article 32 1. States Parties recognise the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. 2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the pre- sent Article. To this end, and having regard to the relevant pro- visions of other international instruments, States Parties shall in particular: (a) Provide for a minimum age or minimum ages for ad- mission to employment; (b) Provide for appropriate regulation of the hours and con- ditions of employment; (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present Article. 41 Schedule 2 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 Part I—continued Article 33 States Parties shall take all appropriate measures, including legis- lative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic sub- stances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such sub- stances. Article 34 States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlaw- ful sexual activity; (b) The exploitative use of children in prostitution or other unlaw- ful sexual practices; (c) The exploitative use of children in pornographic performances and materials. Article 35 States Parties shall take all appropriate national, bilateral and multi- lateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form. Article 36 States Parties shall protect the child against all other forms of exploit- ation prejudicial to any aspects of the child’s welfare. Article 37 States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punish- ment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; 42 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Schedule 2 Part I—continued Article 40—continued in the preparation and presentation of his or her defence; iii To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular taking into account his or her age or situation, his or her parents or legal guardians; iv Not to be compelled to give testimony or to con- fess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality; v If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher com- petent, independent and impartial authority or ju- dicial body according to law; vi To have the free assistance of an interpreter if the child cannot understand or speak the language used; vii To have his or her privacy fully respected at all stages of the proceedings. 3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognised as having in- fringed the penal law, and, in particular: (a) The establishment of a minimum age below which chil- dren shall be presumed not to have the capacity to in- fringe the penal law; (b) Whenever appropriate and desirable, measures for deal- ing with such children without resorting to judicial pro- ceedings providing that human rights and legal safe- guards are fully respected. 45 Schedule 2 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 Part I—continued Article 40—continued 4. A variety of dispositions, such as care, guidance and supervi- sion orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to insti- tutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and propor- tionate both to their circumstances and the offence. Article 41 Nothing in the present Convention shall affect any provisions which are more conducive to the realisation of the rights of the child and which may be contained in: (a) The law of a State party; or (b) International law in force for that State. Part II Article 42 States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike. Article 43 1. For the purpose of examining the progress made by States Par- ties in achieving the realisation of the obligations undertaken in the present Convention, there shall be established a Com- mittee on the Rights of the Child, which shall carry out the functions hereinafter provided. 2. The Committee shall consist of ten experts of high moral standing and recognised competence in the field covered by this Convention. The members of the Committee shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution, as well as to the principal legal systems. 46 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Schedule 2 Part II—continued Article 43—continued 3. The members of the Committee shall be elected by secret bal- lot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own na- tionals. 4. The initial election to the Committee shall be held no later than six months after the date of the entry into force of the present Convention and thereafter every second year. At least four months before the date of each election, the Secretary- General of the United Nations shall address a letter to States Parties inviting them to submit their nominations within two months. The Secretary-General shall subsequently prepare a list in alphabetical order of all persons thus nominated, indi- cating States Parties which have nominated them, and shall submit it to the States Parties to the present Convention. 5. The elections shall be held at meetings of States Parties con- vened by the Secretary-General at United Nations Headquar- ters. At those meetings, for which two thirds of States Parties shall constitute a quorum, the persons elected to the Commit- tee shall be thosewho obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. 6. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renomi- nated. The term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these fivemembers shall be cho- sen by lot by the Chairman of the meeting. 7. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party which nominated the mem- ber shall appoint another expert from among its nationals to serve for the remainder of the term, subject to the approval of the Committee. 8. The Committee shall establish its own rules of procedure. 9. The Committee shall elect its officers for a period of two years. 47 Schedule 2 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 Part II—continued Article 45—continued (d) The Committee may make suggestions and general recom- mendations based on information received pursuant to Art- icles 44 and 45 of the present Convention. Such suggestions and general recommendations shall be transmitted to any State Party concerned and reported to the General Assembly, to- gether with comments, if any, from States Parties. Part III Article 46 The present Convention shall be open for signature by all States. Article 47 The present Convention is subject to ratification. Instruments of rati- fication shall be deposited with the Secretary-General of the United Nations. Article 48 The present Convention shall remain open for accession by any State. The instruments of accession shall be deposited with the Secretary- General of the United Nations. Article 49 1. The present Convention shall enter into force on the thirtieth day following the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession. 2. For each State ratifying or acceding to the Convention after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of ratification or accession. 50 Reprinted as at 1 December 2014 Children’s Commissioner Act 2003 Schedule 2 Part III—continued Article 50 1. Any State Party may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-Gen- eral shall thereupon communicate the proposed amendment to States Parties, with a request that they indicate whether they favour a conference of States Parties for the purpose of consid- ering and voting upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a conference, the Secre- tary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of States Parties present and voting at the conference shall be submitted to the General Assembly for approval. 2. An amendment adopted in accordance with paragraph 1 of the present Article shall enter into force when it has been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of States Parties. 3. When an amendment enters into force, it shall be binding on those States Parties which have accepted it, other States Parties still being bound by the provisions of the present Convention and any earlier amendments which they have accepted. Article 51 1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession. 2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted. 3. Reservations may be withdrawn at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall then inform all States. Such notification shall take effect on the date on which it is received by the Secretary-General. 51 Schedule 2 Children’s Commissioner Act 2003 Reprinted as at 1 December 2014 Part III—continued Article 52 AState Partymay denounce the present Convention bywritten notifi- cation to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General. Article 53 The Secretary-General of the United Nations is designated as the de- positary of the present Convention. Article 54 The original of the present Convention, of which the Arabic, Chi- nese, English, French, Russian and Spanish texts are equally authen- tic, shall be deposited with the Secretary-General of the United Na- tions. IN WITNESS THEREOF the undersigned plenipotentiaries, being duly authorised thereto by their respective Governments, have signed the present Convention. 52