Representing children

The article "Children matter dearly" by Bryan Magro, policy co-ordinator in the Ministry of the Family and Social Solidarity (The Sunday Times, April 9) conveniently side-stepped some significant issues I had raised in my two-part article "Representing children" (The Sunday Times, March 12, 19).

I will endeavour to briefly summarise the issues I raised:

First, I thought it appropriate to support the Commissioner for Children in her call for a comprehensive Children Act to effectively protect the rights of children. According to the Commissioner, social workers feel hampered in their profession as they are not empowered with the necessary legal framework. The Commissioner's call also had the backing of the media and a big majority of respondents to an online poll by The Times.

Secondly, I wanted to show solidarity with the Commissioner in her brave stance with regard to the unrealistic funding, highlighting the fact that the government is not putting its money where its mouth is and, as a result, her Office suffers from a shortage of staff and money.

Thirdly, as the government is single-minded in pursuing the piecemeal approach to legislation, I thought it would be beneficial to children if the government were to start forthwith working on a set of well-defined general principles that are regarded as the bedrock of any Children Act. I added that it would help if the government were to indicate to the public a timeframe for a consolidated Children Act to reach the statute book.

Fourthly, I proposed to the government the creation of a Guardian ad litem Panel and a Panel of Lawyers for Children, as I am concerned about the child's voice being inadequately heard in court.

Sidestepping issues

For whatever reason, the issue of unrealistic funding of the Office of the Commissioner seems to have eluded Mr Magro. I would be interested to know why he sidestepped this issue altogether. Does he think that the allocated 2006 budget of Lm26,000 is adequate enough, given the Commissioner's function, current and projected activities and the number of personnel the Office employs?

This miserly allocation reminds me of the inadequate weekly allowances of Lm12 our committed foster parents and children's institutions receive. It would be interesting to learn from Mr Magro whether the current allowances include food, electricity, clothing, extra tuition, birthday presents, school trips, furniture and a possible annual holiday abroad. It is my firm conviction that vulnerable children could not be cared for properly with the kind of allowances being currently paid by the government.

Moreover, Mr Magro sidesteps the vital importance of the two panels. He states that the setting up of the Family Court introduced the role of a Children's Advocate in cases where children's interests are involved. According to the Commissioner, there is very little awareness of the Child Advocates and how they can be accessed. Is this a service to children in need the Ministry for the Family and Social Solidarity should take pride in, particularly if these children matter dearly?

It may very well be that Mr Magro believes that the Child Advocate should also act as the child's guardian ad litem. As I pointed out in my article, the two professions are endowed with different and specialised skills and backgrounds and, therefore, it would be a tall order for a Child Advocate to follow. Almost five years have elapsed since the publication of the White Paper - Family Division (Civil Court), May 2001. It is clearly stated in the White Paper that the government is of the opinion that the system should start with a panel of lawyers on a part-time basis. I would have thought that by now the government should have put its act together and set up a fully-fledged Panel of Lawyers for Children.

Mr Magro made reference to Professor Jane Aldgate, consultant to the ministry. I have the highest esteem for this remarkable woman, be it as a writer, researcher and public speaker. I am aware of her views regarding the role of the guardian ad litem in court proceedings. I think she would be the first to subscribe to what Dame Elizabeth Butler-Sloss, the United Kingdom's senior female judge, had to say about the role of the guardian ad litem. Judge Butler-Sloss described the guardian ad litem at the time of the implementation of the Children Act 1989 as "the lynchpin to successful implementation of the Children Act". I would be interested to know Mr Magro's comments about this pertinent and incisive statement.

Furthermore, Mr Magro sidesteps the issue of the general principles which are regarded as forming the bedrock of any legislation that affects children. To my knowledge, none of these general principles are enshrined in any of his quoted enacted legislation. This is quite a serious matter. I know of a five-year-old child who has been the subject of separation proceedings for the last four years, that is 80 per cent of the child's lifespan. I consider this delay not only as unreasonable but also as a gross injustice and a massive abuse of the child's rights to be expeditiously heard in court.

This horrendous state of affairs should not be solely attributed to the members of the judiciary but also to the legislative and executive members. As the White Paper "Towards a Better and More Expeditious Administration of Justice" (2005) so rightly put it: "Although the legislative and executive powers should not interfere in the discretion of the members of the judiciary, they are in duty bound to ensure that justice be meted out in the shortest possible time".

Mr Magro is quite clear and categorical in the approach one should adopt when it comes to children's legislation: "Undoubtedly, therefore, the best strategy to adopt in order to introduce or review children legislation with more immediate effect is through a piecemeal approach. This is the best and distinguishing approach that would truly achieve the updating of children's legislation. This approach will also secure the smooth management of the change process that would be required by all stake-holders including the children, their parents, the judiciary, the police, lawyers and social services."

Indeed, Mr Magro has a right to his own opinion but I think the public is entitled to learn from Mr Magro whether the Ministry ever consulted the said stakeholders and what Professor Aldgate, the Ministry's consultant, had to say about it. What makes Mr Magro think the piecemeal approach is the "best" when we are faced with only two options, the piecemeal model and the comprehensive model?

I do strongly believe that a comprehensive Children Act is the better model to follow. First, I had first-hand experience of the application of the English Children Act 1989 for a number of years; it is impossible for me to exaggerate the effect which this Act has had upon the practice of all who are concerned with court decisions and social services for children.

Secondly, in their Guide to the Children Act 1989, Richard White, Paul Carr and Nigel Lowe of Clarke Hall and Morrison for Children think that a comprehensive Children Act has the capacity to virtually cover all the law relating to the care and upbringing of children and the social services to be provided for them; in addition, it has the capacity to revolutionise the law to be applied by the courts hearing all kinds of children cases, whether in private or public law proceedings; finally, it has the capacity to create a whole new jurisdictional scheme to deal with children cases, under which, for the first time, all proceedings relating to the same child can be heard together in the same court, and the same rules will apply in all courts and all proceedings.

Children and Young Persons (Care Orders) Advisory Board

I was taken to task by Mr Magro for "casting doubt on the implementation of children's rights in Malta" and for "seeming to be out of sync with the legislative, policy and service developments which have taken place since 1998 when he briefly served as chairman of the Children and Young Persons Advisory Board".

Mr Magro must be unaware of the fact that my two-year service (1996-1998) as chairman of the board came to an end because of a change of government at the time and that the board was in no way responsible for the admittedly fragmented services which the Labour administration inherited in 1996. Moreover, he must be unaware of the fact that during those two years the board introduced for the first time the following practices for the social workers to adopt in their work with children who were subjects of a care order:

1. Each child or young person under a care order is required to have a care plan and be assigned a key social worker.

2. The child or young person is to be given an opportunity to voice his/her wishes and feelings before the board.

This was quite an innovative step at the time and very much in line with the spirit of Section 12 of the Convention for the Rights of the Child. Apparently it did not occur to Mr Magro that this measure somehow paved the way for the Children and Young Persons (Care Orders) (Amendment) Regulations enacted on April 2, 2005, which Mr Magro quotes and seems to take pride in.

In 1998, the board drew the ministry's attention to the lack of provision of accommodation for boys with very challenging behaviour who were under care orders. The then Ministry of Social Welfare thought it appropriate to commission the Social Welfare Development Programme to draw up a feasibility study on setting up a facility in Malta.

Eight years on, and to date, the ministry has not set up an appropriate facility based on research overseas and on any appraisal it has gained from the running of Fejda, a residential facility for adolescent females, which was incidentally opened under the former administration. It would help if Mr Magro were to tell the public where children and young persons with very challenging behaviour currently end up, and whether these places are appropriate for them.

It is heartening to know that during the Budget Speech for 2006, it was announced that a programme - Innocenti - will provide a high support service for children and young persons with very challenging behaviour. This programme will be launched next year if everything goes according to plan.

Furthermore, Mr Magro reprimanded me for giving "the impression that the implementation of the Convention of the Rights of the Child is only based on having a legal framework, particularly on having a Children Act. Mr Muscat fails to highlight the importance of developing policy and the requirement to match service to legislation and policy".

I feel confident that the opening paragraphs of this response have helped the readers to understand the thrust of my argument and its objectives. Had Mr Magro bothered to read an article I wrote titled "UN Convention on the Rights of the Child - Not without my rights" (The Sunday Times, July 26, 2000), he would have possibly drawn a different conclusion. I stated in my concluding paragraph: "Only if we use the Convention and press for its full implementation, can we begin to feel confident that we are on our way to becoming a child-friendly society - one that is meeting its obligations towards our children".

Understandably, Mr Magro in his capacity as policy co-ordinator goes to great lengths to sing the praises of the ministry's achievements. Certainly there has been a marked improvement in some areas of legislative, policy development and provision of services since 1999. My opening article "Representing children" did start on a positive note:

"Malta can pride itself of having a Family Court and a Commissioner for Children..." However, one has to keep certain changes that have taken place in perspective lest one goes out of tune and renders a significant debate such as this impossible.

My two-part article was designed to communicate a personal opinion of a particular subject: representing children. The first part focussed on the Commissioner for Children and the Children Act, whereas the second part dealt with the respective roles of the guardian ad litem and the lawyer for the child. All three are protagonists of children's rights and act as the voice for the child in different settings and different ways.

I intentionally steered away from policy and service delivery for children not because I do not value them greatly or because I was not cognisant of the government initiatives and achievements in this respect; I simply chose to keep a tight rein on the theme and its objectives.

I leave it to discerning readers to pass judgment on my position.