Parents must get right to contest care orders

Europe’s highest court has ordered the Maltese government to give parents the right to contest removal of their parental rights and care orders placed on their children.

In a judgement handed down yesterday, the European Court of Human Rights found that the government had violated a woman’s right to a fair trial and right to family life when it gave her no way of contesting the removal of her parental rights.

The woman, a Ħamrun resident described as MD in the ECHR judgement, had lost custody of her two children in 2005 following intervention by social workers. She was subsequently convicted of neglecting her children and given a prison sentence.

By 2009, matters had improved somewhat and the mother was allowed to have the children stay over for weekends and public holidays. But her efforts to persuade the minister to revoke the care order failed.

Under Maltese law, care orders for the protection of minors can only be issued – and revoked – by the relevant minister.

Although parents or guardians can contest a care order within 21 days of it being issued, once a juvenile court has sanctioned it, the care order remains valid until the child is 18 years old.

In effect, this meant that MD had no way of having the care order reassessed by an independent tribunal.

The mother took the government to court, arguing that there was no fair and impartial way of having the care order reassessed.

Although the courts found in her favour, the Constitutional Court subsequently repealed that judgement and specified that the mother’s criminal conviction meant that she had permanently lost all her parental rights over the children.

Malta’s criminal code states that a parent or guardian found guilty of having ill-treated a child under 12 years old permanently forfeits their parental or guardianship rights over the child.

That finding has now been overturned by the ECHR, which in its judgement argued that domestic courts had automatically applied the law without taking into account the best interest of the children.

Permanently removing one’s parental rights, the ECHR found, was such an extreme measure that it could only be justified in the most exceptional of circumstances.

The ECHR was particularly critical of the government’s defence, saying that its claim that the courts were not the right venue in which to reassess care orders “runs counter to the entire basis of Article 6 (right to a fair trial)”.

It also had harsh words for the “restrictive and technical reasoning” used by both the government and domestic courts, as to whether or not the mother was legally qualified to petition on the children’s behalf.

“The domestic courts should have... appointed a... representative to act on behalf of the children, instead of limiting themselves to pointing out this failure. That is what the interests of justice and those of the children would have required,” the ECHR chided.

It therefore found in favour of MD and her two children, ordered the government to pay MD €5,500 in costs and expenses and €4,000 to each of the two children in damages.

Although still subject to appeal, a spokesman at the family ministry admitted that this judgement “would appear to require legislative intervention”.