Rights breach in care orders
In 2002, Chapter 285 of the Laws of Malta, which deals with care orders, was duly amended. Under Article 4 of this Act, such care orders are now issued by the minister concerned after representations made to him in writing by the director of the department responsible for social welfare and after giving the parents and other interested parties the opportunity to express their views.
Furthermore, the care orders can be objected to and in such instances the matter would be referred to the Juvenile Court. The court will at this point have to decide whether to confirm or revoke the ministerial order in question.
The problems usually arise after this initial phase. If after a given period, the parents, guardians or other persons concerned feel that the time has come for the revocation of the care order, they would no longer have further access to the courts and have no option but to plead and make representations with the Department of Welfare.
From my experience, I can state that there are definitely instances when the persons involved feel a sense of desparation due to the fact that their persistent demands to the department seem to fall on deaf ears. That desperation is only aggravated by the fact that they have nowhere else to turn to.
There have been occasions when minors, usually coming from depressed areas, end up spending the best part of their childhood as wards of the state without being allowed to return to their families and naturally without ever having the opportunity to challenge the administrative decisions taken on their behalf.
Indisputably, the issue of these care orders is a matter of major importance that could have dramatic consequences for children and their families.
It is inexplicable that our law fails to provide for the right of judicial review in such instances. It must be pointed out that such criticism has long been directed at the government but to no avail. The tragedy is that over the years the system has perpetuated grave injustices and has caused great distress to a number of families.
It should also be recalled that in actual fact, this discretionary power of the minister was in the past challenged before our Civil Courts. Unfortunately, our courts refrained from asserting their authority and sanctioned the law as it stands today.
At the end, as seems to be happening with several major issues, the matter ended up before the European Court of Human Rights in Strasbourg. The court affirmed that our legislation fails to safeguard fundamental human rights, which imply the right of access to the courts.
I must say that it has been the tendency of this government to try and restrict access to the ordinary courts as much as possible, especially in issues involving the private citizen against the state. In fact nearly 200 interdepartmental boards and authorities have mushroomed over the past years, limiting judicial intervention.
Furthermore there are instances when the Administration appears to have usurped the authority usually bestowed on the judicial organ of the state. The case in point is certainly one such instance. Here we have a scenario whereby important decisions affecting the very essence of family life are being taken behind closed doors by bureaucrats and experts, with no apparent judicial scrutiny. This is unacceptable.
Hopefully, the government will take heed of the European court’s important judgment and propose the relevant amendments in an expeditious fashion.
On a positive note, Justice Minister Chris Said has taken it upon himself to treat with priority the aligning of our Corpus Juris with the pronouncements of judgments of a constitutional nature. He has in fact stated that he has appointed an advisory board in this respect and will in the near future propose the legislation necessary in order to do away with unconstitutional anomalies in our law.
In this respect, and as Labour Justice spokesman, I declare that he has my full backing.