Mother with suspended sentence lost rights over children - Constitutional Court

A judgment which had found that the lack of access to the courts in the context of a care order issued for a minor was in violation of the mother’s fundamental human rights has been overturned by the Constitutional Court.

The mother, whose name is not being published to protect the identity of her daughters, filed a constitutional application before the First Hall of the Civil Court.

She told the court that in 2005 the Ministry for Social Policy had issued a care order for her two minor daughters who were placed in an institute run by nuns.

The care order was issued after the mother and her partner were both found guilty of cruelty to the girls. The mother was given a suspended sentence while her partner was sentenced to imprisonment for two years.

In her application, the mother claimed that she had ended her relationship with her partner and that she wished to have her daughters live with her again. She added that her circumstances had changed and that the care order was no longer necessary. However, despite her requests to this effect to the ministry, the care order was still in place.

She requested the court to declare that the fact that the law governing care orders did not give her access to an independent and impartial tribunal to request the revocation of the care order was in violation of her rights to a fair hearing.

The First Hall of the Civil Court upheld the mother’s request, and the Attorney General then lodged an appeal to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph Filletti and Mr Justice Geoffrey Valenzia.

On appeal, the Constitutional Court said that since the mother had been found guilty of cruelty to her children and had been given a suspended sentence, certain provisions of the Criminal Code came into effect in her regard.

As a result, the mother lost all parental authorities and all her rights over her children. This was an automatic consequence that did not even have to be imposed by the Criminal Court in its judgment against the mother.

The mother had, therefore, lost all authority over her daughters even before she filed her constitutional application. She could not have filed her constitutional application on behalf of her daughters as once the care order was issued, the children were in the custody of the Minister for Social Policy.

When referring to the mother’s allegation about not being given access to the courts to ask for the revocation of the care order, the Constitutional Court ruled that access was always to be had to the courts for a decision on civil rights and obligations or in criminal cases.

The court had, therefore, to decide whether the mother had any right or duty that had to be determined at the time she filed her constitutional application.

However, as the court had already established, after the mother had been given a suspended sentence she had lost all her authority and rights over her children. She could therefore vaunt no claim in their regard.

The Constitutional Court ruled that there was no violation of the mother’s right to a fair hearing and it revoked the first court’s judgment.