It was with interest but a degree of regret that I followed the exchange between Frank Muscat (The Sunday Times, March 26, April 2) and Bryan Magro (April 9). Issues relating to children's rights should be kept beyond the realm of partisanship and all constructive criticism should be welcomed and reviewed solely against the backdrop of the paramountcy principle.

As far as I understood Mr Muscat, his articles centred on the role of the Child Commissioner, the importance of a comprehensive Children Act, the establishment of a Guardian ad litem system and a Panel to complement the Office of the Child Advocate.

Mr Magro counters by affirming his ministry's commitment to children and chides Mr Muscat for seeming "to be out of sync" with developments since 1998. I took over from Mr Muscat as chair of the Children's Board until 2001, although I was also legal consultant to the Ministry for Family and Social Solidarity until May 2005. Perhaps Mr Magro will accept my assessment of the situation at least until that date.

Commissioner's role

Mr Magro's article opens with an emphasis on the institution of the Office of the Child Commissioner. This "most significant development(s)" is "truly a concrete and effective step towards the development of a child-friendly society, a pledge to respect the rights of children. Furthermore all players are held to their promise of commitment through the Office of the Commissioner for Children".

The Ministry for Family and Social Solidarity Website carries information regarding the Commissioner for Children (last visited on April 15) citing the United Committee on the Convention on the Rights of the Child as the impetus for the establishment of the Office.

"The CRC committee, on June 2, 2000 recommended that Malta also "establish an independent body, such as an office of an Ombudsman, to monitor the implementation (of the Convention) and address complaints of violation of child rights. The options open to us are two. Government could both take an administrative decision and enhance existing structures within the Family Welfare Department or it could go for the setting up of an independent office. The recommendations by experts at European and international level are unanimous in their recommendation. Governments should preferably set up an independent and autonomous body that is truly committed to the interests of the child within a family context. The reasoning is based on the fact that enhancing the status of children implies a natural and automatic enhancement of the family unit and the values that we all treasure. (omissis) The Commissioner is therefore an independent non-political persona responsible to Parliament but housed and contained under the auspices of the Ministry for Social Policy.

"The Commissioner must have freedom to serve the interests of children and not those of government, implying that there must be the independence to comment adversely, without impunity and without interference or censorship, on the impact of government policy on children. (omissis) In the long term, children's interests require not only advocacy from the outside and campaigning on specific issues on their behalf but a commitment from the state to accept responsibility for the obligations undertaken. A statutory Commissioner with power to report to parliament, with the right to be consulted and with the power to investigate cannot be ignored by that parliament."

In June 2003 during the parliamentary debates leading up to the enactment of the Commissioner for Children Act, the then deputy Prime Minister responsible for Social Policy (today's Prime Minister) stated: "The commissioner's role is to examine and follow developments on the international scene in all areas related to children and where deemed fit to make recommendations relating to any issue which is being carried out incorrectly, publicise that same recommendation in order to exert pressure on the government or Parliament to address the particular problem which has arisen."

The then Parliamentary Secretary within the same ministry (the present minister) commenting on Article 4, said: "This is a very short clause which looks at the independence of the functions of the commissioner who should act independently and should not be subject to any control or direction by any person or authority. It is a clause which establishes the independence and autonomy of the commissioner. (omissis) One has a commissioner making recommendations, making a report and naming and shaming that person responsible for failing to carry out and implement such recommendations. The department, the ministry, and everyone is being pulled up. In truth, this is the law, that the commissioner makes recommendations and carries out monitoring so that these recommendations are implemented."

In order to help the Commissioner, a Council is appointed within the terms of Act 462 (Article 12) in order to "assist" the Commissioner and again, "generally to advise and assist in the performance of her functions" (Article 12 (6) (b)) and "to advise and assist in the promotion of the welfare of children" (Article 12 (6) (c)). This is clearly in the context of Article 4 - "In the exercise of the functions established under this Act, the Commissioner shall act independently and shall not be subject to the direction or control of any other person or authority", and in the spirit of the Ministry's own commitment to independence cited above. Issues relating to the true independence of the current Commissioner for Children and responses to her recommendations have made this a topic for serious concern.

Children Act

Mr Muscat addresses the issue of child representation and laments the lack of a comprehensive Children Act which Mr Magro counters by citing a piecemeal approach as "the best and distinguishing (sic) approach that would truly achieve the updating of children's legislation".

During the same parliamentary debates leading up to the introduction of the Commissioner for Children Act, considerable reference was made to the need for a Children Act.

"There is no doubt that we also have numerous pieces of legislation relating to children spread out in the Civil Code, Criminal Code and the Constitution so I feel there is a need for a comprehensive law. It is true that work has already started on this law which has still not been presented in Parliament, but I feel that this law (Commissioner for Children Act) already provides for it because in Article 11 the commissioner has to ensure that legislation related to children must be observed.

To date we have pieces of legislation spread out here and there, but one hopes that the comprehensive law I have just referred to will be placed before Parliament as soon as possible. I believe that the Commissioner together with the council will be the catalyst to make this law become a reality."

Mr Magro also cites the reference to the Children Act mentioned at the UNGASS in 2002. Helen Damato, who then chaired Parliament's Social Affairs Committee, representing Malta, said: "The introduction of the Office of the Child Advocate and the setting up of the Family Court will ensure children of legal representation. The Children Act will incorporate all laws relating to Children and will consolidate existing rules. A Bill setting up the Office of the Commissioner or Ombudsman for Children is expected to be piloted shortly..."

Again during the same 2003 parliamentary debate relating to the setting up of the Commissioner for Children, Dolores Cristina, then Parliamentary Secretary (and now Minster) added: "Now is the time for the Commissioner to act as motivator for many issues, the drafting of the children's act which also deals with adoption, children and fostering is at a very advanced stage. The advice of the commissioner is always welcome, if there is time for such advice, but it is at a very advanced stage. I hope that we will not have to wait for the appointment of the commissioner to put forward the law for children which will then regulate fostering, adoption and all other matters in a comprehensive manner, but at least if we do not get there I believe the commissioner and the council will be the catalysts to make it happen."

Against this historical backdrop, the present U-turn is difficult to understand. Sadly, the decision whether to go for a comprehensive Children Act or whether to introduce amendments and new legislation piecemeal now seems to have become a contentious one. It is true that not all countries have a comprehensive model, however a number of countries we look to in drafting child legislation do (as well as distant countries such as Guatemala, Indonesia and Ecuador, for example).

England, Northern Ireland and Wales have had a Children Act since 1989 and updated it extensively in 2004, Scotland also has its own Children Act and Australia has a wonderful piece of child legislation, even though it is 381 pages long and contains 451 sections. If the present reluctance to introduce such a comprehensive Act is to persist, the least children can hope for is the timely enactment of these component parts, their co-ordination and the maintenance of essential quality standards.

Committee's recommendations

Mr Magro makes repeated reference to Malta' implementation of the UN Convention on the Rights of the Child. He fails to mention that the Convention has not been incorporated into domestic legislation, notwithstanding the recommendation of the Committee in 2000.

Similarly, the Committee had recommended the collection and co-ordination of data with special emphasis on vulnerable groups ("children with disabilities, children born out of wedlock, refugee children and children belonging to minority groups") and use of these statistics as means to realise children's rights and help design policies for better implementation of the CRC.

Perhaps most importantly, the Committee had expressed its concern at the lack of a national policy on the implementation of the rights of the child, at the limited nature of measures to promote awareness of principles and provisions of CRC, at the lack of training regarding the CRC for professionals working with and for children, stating it to be a state responsibility to disseminate to all groups including "judges, law enforcement officials, civil servants, personnel working in institutions and places of detention for children, teachers, health personnel, including psychologists and social workers."

The Committee had also recommended Malta to review legislation relating to the minimum age for medical counselling without parental consent and a review of the minimum age for criminal responsibility which is still age nine and was seen as too low. Similarly it was concerned at insufficient measures taken by Malta to promote participation of children in family, community, school etc "to ensure effective enjoyment of their fundamental freedoms" and particularly concerned at continued application of "reasonable chastisement" as means to use corporal punishment in the home.

It also recommended that Malta "take all effective measures, including legal ones, to include an explicit prohibition on the use of corporal punishment in the home; to ensure that this prohibition is adequately monitored and enforced, both at home and in the schools; and to promote positive, non-violent forms of discipline as an alternative to corporal punishment in the home".

The Committee expressed concern regarding current procedures governing adoption and foster care and lack of procedures for inter-country adoption. It was also concerned about children's long stay in residential care and limited alternative care measures for children deprived of family environment. It was concerned at the "limited information available to determine the scope of child abuse; the limited measures available for the rehabilitation of child victims of abuse; and the insufficient awareness within society regarding the harmful consequences of ill-treatment and abuse, including sexual abuse of children, both within and outside the family." Again, it expressed concern at insufficient attention given to adolescent mental health, alcohol consumption and the shortage of psychologists.

The Committee CRC concluded by recommending that according to Article 44.6. Malta should make its initial report and written replies "widely available to the public at large", that the publication of the report should be considered along with summary records and concluding observations. "Such a document should be widely distributed in order to generate debate and awareness of the Convention, its implementation and monitoring within the Government, the Parliament and the general public, including concerned NGOs." This is just a selection of the list of recommendations and concerns, but the document is easily accessible on the UN Website.

Other issues

This is not to say that some issues highlighted by the Committee have not been addressed. In the past six years a good number of achievements have been registered, although I must admit my ignorance at Mr Magro's declaration that "we have the opportunity to rid ourselves of old technical legal difficulties and philosophical stumbling blocks" in this context. To the contrary, I was under the distinct impression that the law and a sound philosophical basis were crucial to the effective enforcement of children's rights.

Numerous other issues beg attention. The institution of the Office of the Child Advocate, the support and monitoring of the Office and its interaction with much needed Guardians ad litem needs to be discussed and addressed. Amendments to the Children and Young Persons Care Orders Act are long overdue, notwithstanding the regulations Mr Magro refers to.

Legislation relating to standards of care is still lacking for the newly labelled Department of Social Welfare Standards. It would be an improvement to ratify and not simply sign the European Convention on the Exercise of Children's Rights. Obviously there are many other items which would benefit from a comprehensive child policy co-ordinated by a department or Ministry for children, only that suggestion too is anathema.

No-one would disagree with the ultimate goal of "the true and effective protection of our children." That is not the point. Of course there has been progress in a number of areas, but does this mean that the debate on children's rights has suddenly become a sacred cow, one of those topics on which no-one can air an opinion or make a constructive suggestion?

I have no doubt that my colleagues Professor Jane Aldgate and Wendy Rose, quoted by Mr Magro, would be among the first to welcome such feedback by well-intentioned professionals committed to children's rights. At least in this field, we should be able to confer and make recommendations, on the assumption that our proposals made in good faith are met with due respect and proper consideration.

Dr Farrugia is an advocate and senior lecturer at the University of Malta in the Faculty of Laws, responsible for Family Law and Child Law.