Adoptions only in the interest of the child, minister says

Family Minister Dolores Cristina emphasised yesterday that adoptions should only be in the interest of the child. “The aim of adoption was not to provide a family with a child, but to provide a child with a family,” she said when she was introducing in second reading amendments to the Civil Code. She suggested that the legal system ought to establish a regulatory framework of adoption for both national and international adoptions keeping the interest of the child as the primary aim.

The Bill seeks to bring into force the provision of the judgment delivered by the Constitutional Court on April 3, 2009, in a case instituted by Ruth Debono Sultana and Silvio Debono against the Department for Social Welfare Standards and the Minister for Social Policy.

The applicants had claimed discrimination in the light of the right to family life arising from an article in the Civil Code. They complained unjustified unequal treatment arising from the criterion established in law which prohibited a married couple from adopting a child unless they had been married for three years.

The Constitutional Court, confirming a judgment delivered by the First Hall of the Civil Court on the October 14, 2008, found discriminatory treatment in the light of the right to family life arising from the circumstances of the case since an unmarried person did not have to satisfy any such criteria.

In rejecting the appeal presented by the Department for Social Welfare Standards, the Constitutional Court modified the judgment of the first court by ordering that in relation to adoption proceedings initiated by the applicants, article 114 of the Civil Code ought to be read as not imposing the criterion of three years marital life but only that they are married and cohabiting.

Minister Cristina reminded the House of the amendments that had been introduced in the law on adoption in 2007. She explained that at the time this criterion had not been identified as possibly causing difficulties and that the law was then passionately discussed with the aim of protecting the best interest of the child.

In 2007, the House had sought to reflect developments in Maltese society within the adoption legislation while at the same time ensure that vulnerable children were protected. With this in mind, it was then decided to reduce the requisite from five to three years’ marriage so as to facilitate adoption by married couples.

Mrs Cristina indicated that the Constitutional Court had analysed the criterion vis-a-vis married couples by comparing the requisites that married couples had to fulfil for adoption with those requisites imposed on single persons. The Constitutional Court, she ex­plained, had found this requisite to be unjustifiable.

After consulting the Attorney General, Appoġġ and also members of the Department for Social Welfare Standards, the minister proposed that further amendments to the law on adoption be carried out so that Malta could strengthen its obligations under the Hague Convention on cooperation between contracting states on cross-border adoptions.

She singled out article 116 of the Civil Code as needing an amendment proposing that the law no longer required the adoptee to have been in the care and possession of the applicant for adoption for at least three consecutive months immediately preceding the date of the adoption decree.

Mrs Cristina suggested that the amendment would introduce a proviso whereby a court adoption decree may be given in cross-border adoption cases without requiring the child to have been in the care of the applicant before the adoption application. This amendment would further reflect Malta’s obligations under the Hague Convention which was ratified in 2004 by removing any obstacles for recognition of adoption procedures carried out abroad.

Cooperation between states ensured protection of children from irregular adoptions and strengthened action against the crimes of child trafficking and sale of children.

She thanked the employees of the designated national authority saying that they worked with situations which were emotional and stressful.

Mrs Cristina said 737 adoptions had taken place between 2000 and 2009, with 579 children having been adopted from foreign countries. She said adopted children were often vulnerable and experienced trauma. Consequently checks and balances were required to ensure their best interest.

She regretted the delay that occurred in the introduction of the Bill saying that although it was thought to include such amendments in an omnibus act, the amendments were such that could not wait any further. Despite this delay, married couples who had not fulfilled the requirement of three years were still allowed to follow adoption procedures so that they would not suffer any prejudice due to the delay in the passing of these amendments.

José Herrera (PL) said the Bill emanated from legal exigencies bringing into force the provision of a judgment delivered by the Constitutional Court on April 3, 2009. So much time had elapsed before the Bill was brought up for discussion that together with Justyne Caruana (PL) he had planned to move forward a private motion’s Bill on the matter. As a lawyer he had made a judicial application before the court.

He said the Constitutional Court had been delivering judgments which impinged on laws approved by Parliament. Whenever the court had been requested to interpret cases involving government departments, the social aspect of the law had always been considered.

For 30 years after independence, Constitutional Court judgments delivered against the government had been few and far between. But when Malta ratified the European Convention on human rights and recognised the right of individual petition, things had changed.

He said that judgments delivered by Maltese judges, were at times superior to those delivered by judges in other European countries. Some judgments were indeed a thesis. This did not mean that there was no need of a watchdog to review certain court judgments.

Dr Herrera emphasised the need to strengthen administrative rights and judicial remedies accordingly. Every individual had the right to go to court which would expediently decide on the claim without any need to plead to the authorities. When sentence was passed this should not only bind both sides but be also applied in similar cases.

He said that where the Constitutional Court declared a piece of legislation unconstitutional, it should be changed immediately.

The Maltese constitution gave importance to the Constitutional Court. Parliament was sovereign within the parameters of the ­constitution unlike the House of Commons in England whose ­sovereignty is unlimited.

Dr Herrera suggested that an ad hoc constitutional court would be appointed to hear cases where the Chief Justice might have to abstain because of his previous tenure of office as ­Advocate General.

Other speakers will be reported tomorrow.