Malta can pride itself of having a Family Court and a Commiss-ioner for Children, and yet, we still do not have a Children Act despite the fact that Malta ratified the UN Convention on the Rights of the Child in October, 1990, and the European Convention on the Exercise of Children's Rights in January 1999.
On June 2, 2000, the UN Committee on the Rights of the Child recommended that Malta should continue to take effective measures to incorporate all the principles and provisions of the Convention into its domestic legislation and encouraged Malta to expedite the enactment of a consolidated law on children's rights.
According to the Commissioner for Children Act, 2003, the Commissioner for Children has the function "to promote compliance with the United Nations Convention on the Rights of the Child as ratified by Malta and with such other international treaties, conventions or agreements relating to children as are or may be ratified or otherwise acceded to by Malta". This is exactly what the Commissioner has been advocating for quite some time now.
I admire the brave stance the Commissioner for Children, Sonia Camilleri, has taken on behalf of children's rights and services. She has rightly taken issue with the government's unrealistic funding, highlighting the fact that the government is not putting its money where its mouth is, and that her office suffers from a shortage of staff and money.
The Commissioner asks herself whether her office is a big bubble. She thinks it is not and that, if it were not for her office, children's rights in Malta would probably be put on the government's back burner. I believe she is right. I think the government's creation of the Office of the Commissioner for Children was more of a window-dressing exercise than a well-thought-out scrutiny of its policies through the vigorous framework of principles and standards provided by the UN Convention for the Rights of the Child.
The Children Act
The Commissioner's strongest criticism focuses on the fact that children in Malta are still being deprived of a Children Act and that social workers are being hampered in their job as they were not empowered with the necessary legal framework.
According to the Commissioner, "despite a promise Malta made to the UN in 2000 that a Children Act is being drafted, a commitment reiterated again in 2002, to date there does not seem to be any preparations for its drafting or its presentation to Parliament". Is the Commissioner aware that the first drafting on the Children Act took place in June, 1996? The government is certainly in a position to know.
While writing this article, I have before me a draft copy of the Children Act, version June 1996, produced by the committee chaired by Dr V. Zammit, LL.D., then Children and Family Services director. This draft copy had been sent to Dr Zammit by the indefatigable Nora Macelli, then assistant head of the Social Work Protection Department.
We are ten years down the line and Malta is still without a Children Act despite a speech given by Helen D'Amato, MP, to the UN General Assembly on Children in May, 2002: "The signing of these International Conventions regulating children's issues should not remain a pledge. We have to be fully committed to a more stringent implementation if the secure future of our children is to be assured."
The drafting and setting up of the Children Act is a complicated process that takes time, as Nationalist MP Clyde Puli so rightly put it. It is, therefore, important that it is not rushed or "we will be defeating the whole purpose of the law". Hence, the Government's preferred option of the "piecemeal approach".
The Act will indeed cover virtually all the law relating to the care and upbringing of children and the social services to be provided for them. It will revolutionise the law to be applied by the court hearing all kind of children, whether in separation or care proceedings - this means it will cover, among other things, care proceedings, parental responsibility and guardianship, the court's powers in family proceedings, an extended menu of orders, financial provision for children, protection of abuse under all its forms, contact, disability, medical treatment, education, adoption and fostering, child-minding and day care for children.
Deleterious delay
The Children Act will be at the heart of children's rights. It should therefore continue to be a matter of public debate and be given a high profile by the media so that the government is as fully informed as possible about the deleterious effect which the delay is having on children in being deprived of a Children Act.
For example, the longer it takes in public law proceedings for the court to resolve whether or not a child should be taken into care, or for the child in care to be fostered or adopted, the longer a child has to wait for permanence until his/her future is decided, which may in turn impact on continuity in schooling and other aspects of his/her life.
Children who have been physically, emotionally and sexually abused should not wait years for the court to have the case resolved. This kind of delay is certainly an added institutional psychological abuse of children perpetrated by the court and the state.
For children involved in private law proceedings, the impact can be as traumatic. Very often, children's views, wishes and feelings become lost within the context of marital breakdown. The period of separation of parents can be extremely stressful for the children and sorting out contact and residence issues can be fraught. For some children, the whole childhood is marred by having to live through implacable hostility between parents.
Court delays need to be addressed not only by the government and the judiciary but also by social workers, child psychologists and child psychiatrists in their reports for the court when they are called to give evidence as expert witnesses.
It would help if the government who is taking its time to bring the Children Act to the statute book and members of the judiciary and all professionals involved with children in court proceedings were to put themselves in the situation these children find themselves in, carrying burdens of uncertainty and anxious doubts. This simple but very effective exercise is likely to give them inkling of the feelings of the children.
The delay in having a Children Act is also being prejudicial to effective social work intervention. It causes great frustration in these dedicated professionals whose arduous work very often goes unrewarded. The principle that the welfare of the child comes first is the foundation of their responsibilities. Having an updated and broad legal framework to work on in their decision-making is an indispensable tool for good case-management and effective child care service.
If the Maltese government persists in its "piecemeal approach" to legislation despite the recommendations to the contrary of the Commissioner for Children, Social Services and the views of a big majority of respondents to an online poll by The Times on the Children Act (March 1), it should then, at the very least, and without further delay, seriously start by legislating the following principles which, in my view, are the bedrock of any Children Act:
1. The welfare of the child is a paramount consideration.
2. The court shall have regard to the general principle that delay is likely to prejudice the welfare of the child.
3. Orders to be made only where the court is satisfied that making the order is better than making no order.
In applying the foregoing principle 1, a checklist of relevant factors should be introduced very much in line with the English Children Act, 1989.
The checklist in section 1 (3) is as follows: a) the ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding); b) his/her physical, emotional and educational needs; c) the likely effect on the child of any change in his/her circumstances; d) the child's age, sex, background and any characteristics which the court considers relevant; e) any harm which the child has suffered or is at risk of suffering; f) how capable each of his/her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs; g) the range of powers available to the court under this Act in the proceedings in question.
The Children Act will meet a long felt need for a comprehensive and integrated statutory framework to ensure the welfare of children. This is why the Commissioner for Children's voice is being so persistently strident and steadfastly continues to urge the government to expedite matters and fall in line with its pledges to the UN Committee on the rights of the child.
The government has to date dismally failed to exercise leadership in this respect despite the explicit statement made in the 2003 Commissioner for Children Act - Background: "The Children Act is also at an advanced stage in the drafting and will address issues such as adoption, illegitimacy, child care, etc.."
It would help if the Ministry for the Family and Social Solidarity were, first, to give a firm indication to the public as to how long the "piecemeal approach" is envisaged to take and secondly, to give a firm timeframe for the Children Act to reach the statute book.
This article was inadvertently omitted last Sunday. timesofmalta.com regrets the omission.