The 'shoebox baby' incident seems to have given rise to the need for a proper law in cases where children require the intervention of the government to safeguard their interests and their physical and emotional care.
One particular piece of legislation which does, albeit limitedly, cater for such situations is LN 13 of 1962, which provides that if a child requires foster care the preferential placement should be with family members, such as an aunt or uncle. Where this is not possible, with a family specially selected for the task.
This Legal Notice also provides monitoring by a 'welfare officer' who is to visit the child from time to time to satisfy himself as to the child's well-being and also to offer any advice. This law merely outlines what should be done in the fostering process but provides no supportive and administrative structures to back it. It also lacks clarity and detail as to how the fostering process is to be performed, sustained and achieved well.
Bill on foster care
Bill 89 of 2007, which is being debated in Parliament, aims to provide for supporting structures for the fostering process in Malta. It sets up the administrative framework, such as the Central Authority and the Fostering Board, within which this process is to be carried on efficiently. It also aims to regulate voluntary agencies collaborating in the fostering process both at its commencement and for its duration and provides for the rights and responsibilities of foster carers.
The Central Authority to be established by this proposed law will scrutinise agencies intending to collaborate in the fostering process. It will accredit such voluntary agencies to make arrangements for the whole process of the fostering of a child. It is also empowered to revoke any such accreditation and to take action against any agency violating the law on foster care.
The Fostering Board being set up by this Bill is to be composed of professionals specialised in various fields. What is interesting here is that the minister is binding herself to do her utmost to appoint as one of the members of this board, a person of age, who himself or herself was a fostered child. This is significant in that it aims to provide a holistic approach towards the fostering process.
The main function of the Fostering Board is to monitor the particular case of children who need fostering and to keep records thereof, to decide upon the suitability of foster carers, to provide documentation to foster carers identifying them as such, to review reports and complaints made against foster carers and to take action to remedy the situation.
Any decision taken by this board may be challenged before the Board of Appeal, whose decision is final. A foster carer or an agency have the right to appeal against the decision of the Fostering Board or the Central Authority. This structure is innovative because to date there is no law which supports foster carers.
This Bill also outlines the functions of the voluntary agencies collaborating in the fostering process. I use the word 'outlines' because I believe that this Bill could have been more profound in various aspects as will be explained below.
The agencies collaborating in the fostering process are to regulate their own procedures but they must ensure that particular objectives be carried out. This includes the training of prospective foster carers as well as providing on-going support for current foster carers. The agency which enters into the fostering agreement with the carers has the responsibility to monitor all the placements made and must also investigate and report to the Fostering Board any complaints received against foster carers.
Some shortcomings
It is undeniable that this Bill is intended to secure the best interests of the child. The establishment of solid structures such as the Central Regulatory Authority, the Fostering Board, and the Board of Appeal ensure that our fostering process is solidly supported as well as thoroughly scrutinised.
Minister Dolores Cristina, in moving the Bill, emphasised several times that its pervading objective is the "best interests of the child". Without doubt this Bill provides for the essential administrative and supportive structures required by the fostering process.
However, in my opinion, it fails to incorporate a fundamental matter: articles of the law which deal directly with the physical and emotional well-being of the child, the physical and emotional care of the child. This Bill is more concerned with the administrative entities, their rights and obligations, and especially, the rights of foster carers.
I believe that the care and maintenance of the child and how to achieve the best results in the particular case should be incorporated in the Bill. There should be careful detailing of what child care and maintenance means and how this is to be achieved.
I am not implying that the agencies are not already applying the highest standards when it comes to taking care of the fostered child but wouldn't it be more secure if it were part of our legislation as well rather than merely a practice? Wouldn't it be more auspicious for the fostered child to know that his or her rights are well protected by law?
No doubt, the agencies involved in the fostering process have gathered invaluable experience throughout their years of fostering work and can contribute greatly to the formulation of such a law.
Foreign legislation
Foreign legislation, particularly English statutory law, goes into great detail as to the duties owed by the agencies and the foster carers to the fostered child to ensure the well-being of the child. The Fostering Services Regulations 2002 impose upon the agencies collaborating in the fostering process various duties including the duty to secure the welfare of the child and to make arrangements for their protection. In addition, this law sets out the manner in which such duties are to be fulfilled.
For example, the child is to be consulted, and his or her feelings, wishes, religious beliefs, racial origin and cultural background are to be given 'due consideration'. Moreover this law sets out the policy and procedure that all agencies are to follow in the event of abused or neglected children.
The English law also seeks to secure the best interests of the child by imposing upon voluntary agencies the duty to ensure that the fostered child is registered with his or her own GP, has access to any physical or psychiatric treatment he or she may require, has the support required in case of any disability, and has the guidance and advice on his or her health and personal care appropriate to his or her individual needs.
English law also imposes upon agencies the duty to follow the child's educational progress and to promote the child's interests and hobbies. In contrast, our Foster Care Bill seems to assume that such well-being is attained automatically.
Some questions this Bill does not answer: What happens when the fostered child reaches the age of 18? What structured support is there for this person to go out in the world, find a job, and build a life of his or her own? Is there any further support?
In England, a person in care usually leaves his foster home at the age of 16, unless such fostering was ordered by the court, in which case he or she would leave at the age of 18. The English Children Leaving Care Act 2000 provides for the support that persons leaving their foster home require to start living independently.
This Act ensures that the local authority assists the leaver in areas such as housing, education, training and employment. These care leavers will be allocated a social worker, sometimes also called a personal adviser, who will advise him as to his next steps. In England persons leaving care are provided with the necessary support to enable them to live independently. Moreover care leavers who find a job will be provided with support until they are 21, whereas students who wish to further their education will be supported till they are 24 .
I believe that this draft legislation is a very positive one in that it is the first real law which regulates the whole fostering process. It provides the structures required for the efficient monitoring of the process as well as the support for those who are directly involved in this process, while keeping as its fulcrum the best interests of the child.
I believe, however, that this Bill could go further in that it could provide for the detailing of the way a child is to be physically and emotionally taken care of and for the supportive structures required once the fostered child becomes of age and intends to live independently.