At a time when everyone and everything has rights, it is very common to hear about children’s rights, the implications and the results. How are the rights of a child translated in a courtroom where adults seem to know everything about decision-making and what the present and future of this little being should hold?

There has been endless discussion both in national and international fora about the right of the child to have a voice in court proceedings which directly affect the child. On the one hand, some critics say that to deny this right to the child would involve “notions consistent with children being possessions rather than humans” while others profess that merely giving the child a voice would be tantamount to giving the child more than he could handle.

Are we further burdening the child with responsibilities in a world which seeks to rob a child of his innocence every step of the way? Those who profess that children should seldom be involved in court proceedings maintain it would create further stress on the child, exposing him to parental conflict.

Others say that it tears the child who may have divided loyalties, places the child at a risk of redress from one of the parents and further places responsibility on the child for making decisions that the parents are unable to make and undermines their authority in the process.

However, the mistake many fall into is the failure to differentiate between involving children so that they have a better understanding of what is happening in their lives and allowing them to express their feelings to someone who understands their position as opposed to involving the child as a fallback decision maker. The recent Bill presented in Malta known as the Child Protection Act (Out of Home Care), 2014 seeks to introduce child protection orders and special care and protection to children removed from home care. It builds on Legal Notice 397 of 2003 - The Civil Court (Family Sections), The Civil Court (General Jurisdiction) and The Court of Magistrates (Gozo) (Superior Jurisdiction) (Family Sections) Regulations 2003, in that it further develops the concept of involving the child in court proceedings. The Bill is characterised by several very significant details which through the years have resulted to be vital if we are to take the risk of introducing a vulnerable being in the world of adults.

It has been repeated, maybe ad nauseam, that meaningful child participation is only possible when keeping the child’s best interests as a top priority in every decision taken. Although this phrase has been used too many times, it does have to be at the root of every procedure involving the child.

It may not necessarily be what the child, the parents or any other third party wants – it is about assessing the situation and hearing all interested parties and seeing what the decision must be in the best interests of the child involved.

The best interests of the child, which should then determine the decision taken, should be assessed after taking into consideration not just the wishes of the child but the whole situation

How best to assess what the child’s best interests are has been at the core of such discussions. The new Bill introduces the concept of having a child advocate being appointed automatically from the very start of the proceedings. The child would beconfused, frenzied by the situation he is in, and having him introduced midway through the proceedings would only add to his confusion. It is understood that this requires more resources but what better way to invest in our future than by making sure a child in such a vulnerable situation gets all the support he needs.

The new Bill reflects also the realisation that the judge alone might not always have the level of expertise to listen and sometimes also interpret what the child has to say and therefore introduces a mechanism whereby the judge has the support of other experts. This interconnecting network-of-support mechanism, whereby every decision is taken aftera team of experts work together,is a bold step towards better decision-making in matters involving children.

In fact, the Bill introduces the concept of having a guardian from the Child Court Services to represent and assist the child from the very beginning of the procedures. The child advocate and the guardian have two different roles, as given to them by the Bill.

The guardian seeks to communicate with the child, assess the situation from the child’s point of view and promote the best interests and rights of the child. The child advocate should focus on the legal aspects and while informing the child of his rights, brings forward his wishes.

In this way the Bill seeks to make right what many err in; in a normal scenario in a court case there exists only a lawyer–client relationship. Where a child is involved one must not make the mistake of simplifying the context to this extent; whilst there is an advocate-child relationship, the child advocate is only one of the players in the team who cannot score alone if he is to score and win.

What the child advocate brings forward are the wishes of the child and not the best interests of the child. The best interests of the child, which should then determine the decision taken, should be assessed after taking into consideration not just the wishes of the child but the whole situation.

It sounds easy saying that one should listen to what the child has to say and take a decision in light of the circumstances of the case; not so much in practice. Many times a child does not know how to express himself, is fearful in the circumstances, is confused and traumatised by the situation and often has no idea why he is not out in the playground with the rest of the children his age.

It is here that we must make a difference between a normal lawyer-client relationship and the relationship between the child and his lawyer. This is why the Bill is a step forward when, based on other international instruments, it underlines the fact that meaningful child participation involves bearing in mind the maturity and any communication difficulties the child might have and therefore involving any and all experts necessary throughout the procedures. The Bill is also sensitive towards asylum-seeking children who obviously require more attention in this regard, taking into consideration their different culture and language. The Bill actually spells this out.

The Bill also underlines the need for procedures to involve the use of simplified language for the child to understand, as well as the introduction of short-time frames which would help these procedures involving children to be more expeditious.

This Bill certainly introduces a more comprehensive approach to the concept of meaningful child participation in court proceedings. It is only if we keep in mind the needs of each and every child and his wishes can we truly say that we are fully respecting this little being who does not have a duty to express his views but has a right to do so.

Anna Maria D'Agostino is a lawyer in private practice focusing on family law cases.