As things stand, I seriously doubt whether Malta would ever have the provision of a guardian ad litem enshrined in the Children Act.
This provision is vital to represent, safeguard and promote the welfare of children involved in family court proceedings.
Dame Butler-Sloss, the United Kingdom's most senior female judge, described a child's guardian ad litem at the time of implementation of the Children Act 1989 as "the lynchpin to successful implementation of the Act".
Fundamental to the guardian ad litem's job is the requirement to maintain focus and independence, avoiding being pulled and pushed by all parties surrounding the child. Trying to walk this tightrope between dissenting wishes and demands, the guardian ad litem performs at the core of a debate about the constituents of good child care.
The most important trait identified by children and young people is the guardian ad litem's ability to listen to them and to explain things to them. A guardian ad litem offers the means by which obligations under Article 12 of the UN Convention on the Rights of the Child can be fulfilled in the court system.
Article 12 places a duty on state parties to "assure to the child who is capable of forming his or her own views the right to express those views in all matters affecting the child, the views of the child being given weight in accordance with the age and majority of the child".
Guardian ad litem's task
A guardian ad litem is appointed by the court from a panel of guardians ad litem and reporting officers. Following his/her appointment s/he, in turn, appoints a lawyer for the child from the Lawyers' Children Care Panel. A guardian ad litem is a person with experience of working with children and families, usually as social worker, but s/he is also required to have good grounding in family law and child developmental psychology.
Moreover, a guardian ad litem works independently from the parties involved and ideally works as self-employed.
The most important duty of a guardian ad litem is to be the voice of the child in court and, therefore, to safeguard and promote the child's welfare. This involves a consideration of the child's wishes and feelings. It follows that the child must be seen sometimes on a number of occasions and in different settings, at times on his/her own or in the presence of the child's carers to assess his/her personality and any bond that exists between them.
As complete a picture as possible should be gained to present to the court, orally and in writing, an accurate account and full representation of the child. This is a delicate, demanding task; the challenge is to represent the child without becoming emotionally involved and establishing a rapport without entering into a relationship.
A guardian ad litem helps the court make a decision about what is best for the child. He/she investigates the child's circumstances, contacts all significant people concerned with the child, which may include psychologists, doctors, teachers, and, indeed, members of the child's immediate and extended family.
Moreover, he/she has a right to access any records kept by Social Services concerning the child and may use them as evidence during proceedings; the court may also order the guardian ad litem to have access to any medical, psychiatric or psychological reports. During the entire proceedings, the guardian ad litem should ensure that parents know what evidence is to be given, and what recommendations are being made by various professionals in their reports.
When a guardian ad litem finishes his/her enquiries, s/he writes a report for the court - all parties have access to this report prior to the court hearing.
If the child is of an age and understanding to express an opinion, the report will have to include the child's wishes and feelings, including the child's needs. In his work with a child and his/her family, the guardian ad litem positively responds to issues associated with gender, race, culture, religion, language and disability. The guardian ad litem may also give evidence and be cross-examined.
Working with the child's lawyer
Working closely with the child's lawyer is the guardian ad litem's most significant relationship during the court proceedings, where ideally the case is discussed, issues presented, feelings and options examined and aired. This partnership is well described as a "team".
Effective teamwork comprises flexibility, common sense, mutual trust and respect, adaptability, availability and communication skills. When the relationship between the guardian ad litem and the child's lawyer works well, as it often does, the combination of different professional skills is creative and stimulating, and undoubtedly, acts for the benefit of the child-client.
The guardian ad litem and the child's lawyer work jointly to present the case to the court. The lawyer is responsible for presenting the child's case in court including calling witnesses for the child. The guardian ad litem tells the lawyer what s/he thinks should happen with the child and what information should be put before the court.
If the child is old enough and has sufficient understanding to give instructions to his/her lawyer, then the lawyer must act for the child, independently of the guardian ad litem, and tell the court the child's point of view.
When this differs from the recommendation of the guardian ad litem, the guardian ad litem will still give his/her recommendation to the court, but not through the child's lawyer. Under those circumstances, the guardian ad litem may obtain leave to have legal representation for him/her.
It can be quite daunting for the child's lawyer to carry out the child's instructions which, at times, tend to go against his/her best interests. It may be tempting for the child's lawyer to exert pressure on his/her child-client to change his/her views. Indeed, there is a duty to counsel the child on the wisdom of his/her instructions but if the child's lawyer were to ignore them, this can be very damaging to the child.
Guardians ad litem panel and Commissioner for Children
The Times of April 11, 2005, carried an editorial titled "Guardian of the children", which made reference to the Commissioner for Children's first annual report.
The Commissioner highlighted the urgent need of back-up for the court, consisting of psychologists, child psychiatrists, social workers and certified DNA testers, as well as more judicial assistants.
A most glaring omission in the Commissioner's list of experts was the role the guardian ad litem plays in court proceedings on safeguarding and promoting the child's needs.
This was either a genuine oversight on the part of the Commissioner for Children or ignorance on her part of the existence and role of the guardian ad litem in a child's life. There is still time for the Commissioner for Children to evaluate this matter and, hopefully, then, to recommend it to the relevant authorities.
A panel of guardians ad litem can easily be administered by the Commissioner for Children, given sufficient funds by the government. In this scenario, the panel could still retain its independence. It will consist of qualified social workers with years of experience behind them, who will be prepared to work full time and as self-employed. There will be a panel manager responsible for induction, training and assignment of staff - he or she will not deal with individual cases.
A lawyers' children panel
There exists a dire need for the creation of a lawyers' children panel in Malta which will ensure that referral agencies, parents, guardians ad litem and others can identify lawyers who are suitably qualified and experienced in representing children in care and separation proceedings.
Panel members will also be available to represent parents, grandparents and any other parties joined in proceedings. The Law Society Children Panel of England and Wales is a good model to follow.
To become a member of this panel, practitioners are expected to have at least three years' experience as a lawyer, attend a training course, submit an application covering all aspects of children law practice, be interviewed by two persons, one of whom is a guardian ad litem, and be subject of a Criminal Records Bureau. Every five years practitioners must renew their panel membership under a reaccreditation children panel.
Being involved in care or separation proceedings can be a confusing and difficult time for a child. It forms an area of work which requires specialised skills, in particular communication with children and special sensitivity towards children's needs, language and emotions. By no means all lawyers have this combination of talents and the fact that a lawyer has been doing work of this type is no guarantee that he/she is competent at it.
This had certainly been my experience in working with children in the Family Proceedings Court and High Court in London, and as an interviewer on the Law Society Children Panel before coming to Malta in July 1996.
It was at that time that I accepted the post of a Juvenile Court Assistant and the chair of the Children and Young Persons Consultative Board (Care Orders).
My experience tells me that there is a strong tendency among some lawyers not to delve too deeply into some of the issues before the court and, worse still, to turn up in court totally unprepared to present their child-client, having had only superficial contact with the child or not having met the child at all.
Representing a child is a very delicate, sensitive and time-consuming process and, hence, lawyers acting in proceedings relating to a child should definitely see and, if possible, talk to or play with the child, whose interests the lawyer is hired to protect and promote. The child should be treated as a person and not as an object of concern or, worse still, as a lucrative piece of work.
Conclusion
For whatever reason, the creation of a guardians ad litem panel has never been on the government's list of priorities with regard to children's services in court proceedings.
To my knowledge, the government has not raised this matter with the judiciary, social services, and the Commissioner for Children. The media have been equally silent about it. For all I know, the government may consider this provision as too expensive a venture to undertake or that the job can be as effectively done, if not better, by a lawyer from the Lawyers Children Panel.
There exists no Lawyers Children Panel in Malta and, regrettably, children in care or separation proceedings have no separate legal representation. This is a gross injustice given Article 12 (2) of the UN Convention on the Rights of the Child: "For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."
The government has to date dismally failed to deliver in this respect.
(Concluded. Part one was published last Sunday.)