The First Hall of the Civil Court (Constitutional), presided over by Mr Justice Tonio Mallia, on August 8, 2013, in the case “A and B vs Minister for Family and Social Solidarity, Director of the Department of Social Protection, and the Attorney General”, held, among other things, that the risk of injury and the lack of safety of children, even if only one child suffered injuries, was good enough reason to confirm the care order.

The facts in this case were as follows.

A mother of two minor children – one child born on July 8, 2010, from a previous relationship and another child born on December 1, 2012 – was living with the natural father of her second child.

It so happened that her elder child was rushed to hospital with a serious head injury (fractured cranium) by falling off his bed. On two other occasions, the same child broke his leg and his wrist. Her other sibling had not suffered any injuries.

On March 8, 2013, a care order was issued to place both children in foster care for their protection. The couple objected to the care order.

On April 9, 2013, the Court of Magistrates confirmed the care order, in the better interests of both minors.

Subsequently, the couple pleaded that their human right to have a family, under article 8 of the European Convention of Human Rights and their right to a fair hearing, under article 6, were violated. They claimed to have suffered a violation of their rights under article 6(1) and article 13 of the European Convention of Human Rights.

It was argued that there was no remedy under Act of 1980 for a care order to be reviewed by an independent and impartial tribunal; and, faced with this situation, the mother and her partner proceeded to file a human rights action.

They requested the court:

1. To declare that they suffered a violation of human rights (fair hearing) under article 6 and article 13 of the Convention of Human Rights, as allegedly there was no remedy under Act of 1980 (Protection of Children) and that the care order be reviewed by an independent and impartial tribunal and not simply depend on the discretion of the minister, who issued the care order;

2. To declare that they suffered a violation of human rights under article 8 (right to family life) of the Convention, and this because the care order denied them the right to private life and family life (article 8(1) of the European Convention of Human Rights);

3. To order the revocation of the care order and to give such remedy to protect their rights.

In reply, the defendants contested the claims made by the couple, saying they were both unfounded and premature. It was submitted that there was no breach of human rights.

Maltese law provided a procedure to balance the interests of the parties and of the children. It was the practice of our court to give paramount importance to the interest of the minors and, if there was an intrusion in claimants’ family life, this had to be necessary in a democratic society. The purpose and function of chapter 285 was to guarantee the respect to life, dignity, care and protection of minors from family life which was harmful to their health, whether physical, mental or psychological.

The defendants maintained that human right proceedings before the Constitutional Court was not the proper forum to request the cancellation of the care order.

The Constitutional Court noted that the Magistrates’ Court considered all evidence and rightly decided to reject claimants’ objections. In this respect, the care order should remain in vigore.

At issue here was whether the care order dated March 28, 2013, infringed the claimants’ right to family life and their right to a fair hearing.

It was not the function of the Constitutional Court to act as a Court of Appeal of third instance. The Constitutional Court had only to consider the human rights issue.

On the matter of fair hearing, the court said there was no doubt that the couple had received a fair hearing before the Court of Magistrates, which was both independent and impartial. The case was heard with urgency. The Court of Magistrates was vested with wide powers and had the authority to grant a remedy which it felt to be appropriate.

As regards the claim that the revocation of the care order was within the discretion of the minister, the court noted that the case had to be heard by the appropriate board every six months. The mother was invited to attend and, although the children were placed under foster care, contact with their patents was not severed. The parents continued to enjoy access to their children under supervision. The care order did not remove the parents’ right of access.

The purpose of the care order was not to deny the children of their parents, but to protect the interests of the children and, if possible, to return custody of the children to the parents. The interests of all parties were safeguarded, pointed out the court.

The parents could request the revocation of the care order. Their request would be investigated and the final decision would be taken by the minister. The decision of the minister was an administrative act and, as such, was subject to review in terms of article 469A of chapter 12.

The courts have wide powers of review, without substituting the discretion of the executive and the administration. In “Eden Leisure Group vs Borg D’Anastasi” dated June 27, 2003, the Court of Appeal held that “it was clear that the Civil Court had the authority to review the operations of any Administrative Tribunal to ensure observance of Natural Justice principles and to ensure the correct interpretation of the law, without substituting the discretion of the board”.

It was correct, if at all, to err in order to protect the children; as an error against the interest of the children could be fatal

The court had to examine all the circumstances of the case to decide whether to revoke an administrative act. Reference was made to “Borg noe vs Governor of Central Bank” dated March 1, 2004 (PA), where it was held that “article 469A, chapter 12, was intended to provide a remedy to an individual against an act of the public administration; to review the validity of such act, for instance, if the act violated the principles of Natural Justice or if such act was an abuse of power or if such act violated the law. By ‘act’, our law understood a denial or refusal of an individual’s claim to the public authority”.

It was not the case that an effective remedy did not exist. The court said that the parties were given a fair hearing and had every opportunity to present their case before the court.

The court did not agree that the decision of the Court of Magistrates lacked reasons. It was sufficient if a judgment included only the reason why the decision was given: “Mercieca vs Water Services Corp.” (CA) (INF) dated February 27, 2009.

The Magistrates’ Court had considered all the evidence and decided to place the children in foster care to prevent possible harm to the children. The risk of injury and the lack of safety of the children, even if only one child suffered injuries, was good enough reason to confirm the care order. The fear of injury of the children and the real possibility of negligence on the part of the mother or of her partner was sufficient to justify the retention of the care order, at least at this stage.

The court was of the opinion that the Court of Magistrates had considered the protection of the family and the better interests of the minors.

A medical report confirmed that “the child had sustained trauma on several occasions and that the facts in this case make the diagnosis of non-accidental injury highly likely”.

It said that the Court of Magistrates used its discretion correctly even in respect of the child who was not injured, in order not to expose him to the risk of injury in the hands of his mother. The mother did not appear to be capable of looking after the children and of keeping her house clean.

For these reasons, on August 8, 2013, the Constitutional Court gave judgment by finding no breach of human rights. Article 8 of the Convention of Human Rights did not state that “family life” should not be disturbed for whatsoever reason; as there could be cases when it was in the interest of the child to be removed from his family.

The court declared that the Court of Magistrates had considered the safety of the children and it was correct, if at all, to err in order to protect the children; as an error against the interest of the children could be fatal.

The court, therefore, dismissed the couple’s claims.

Dr Karl Grech Orr is a partner at Ganado Advocates.