It is not easy to understand why, in the case of the adoption of children by married couples, the legislator had included the condition that the spouses must be married for a period of not less than three years and should be living together. This looked odd because the same period was not made an essential requisite for adoptive parents who cohabit outside wedlock or if the applicant is single.
It is even more difficult to understand why the three-year condition remains notwithstanding the April 2009 Constitutional Court’s decision. The Constitutional Court confirmed a judgment delivered by the First Hall of the Civil Court holding that this provision of the law discriminates against married couples. It found that the discrimination is evident once it resulted that the agency providing adoption services (Aġenzija Appoġġ) refuses to commence the processing of an application filed by spouses prior to the lapse of the three-year statutory period.
The court declared the law as being in breach of the right to family life and ordered the matter to be rectified, even outlining how the amendment should be worded. It noted that the relevant article of the Civil Code (article 114(2)) had to be read in the sense that an adoption decree may be made on the application of two spouses, who are living together, authorising them jointly to adopt a person.
Following the Constitutional Court’s decision, a Bill was drawn up to bring into force the provision of its judgment. However, the legal changes proposed are still pending.
Immediate remedial legislative action following the court’s decision would have avoided the embarrassing situation of having a couple filing a judicial protest claiming that the government’s support agency, Appoġġ, acted illegally when it stopped the spouses from completing an adoption course by evoking a law that had been declared anti-constitutional.
The spouses’ concern is that, although Parliament has a Bill before it seeking to make the necessary changes, they were suffering the repercussions of bureaucratic delays. Their point is that it was not fair that they suffered because the government was taking long to change the law although, as claimed by their lawyer, the changes should have been made within six months of the court judgment.
Last year, Appoġġ received 86 applications for adoption: 75 from couples, 10 from single women and one from a single man. Such individuals ready to open their hearts and their homes for children in need of being adopted deserve full appreciation and encouragement.
Adoption brings a child born to other parents into a new family. Special attention needs to be given in the adoption of children to the principle of the “higher good” of children while securing the rights of the natural parents.
The sterling services being provided to find suitable alternative families for children who, for some reason or other, cannot live with their natura parent/s, and the assistance provided to prospective adoptive parents, including counselling and training/ preparation, also followed by post-adoption work, reflect a sound social and political commitment. This same commitment should help ensure that the overdue change in the law regarding adoption by a married couple is dealt with as a priority.