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Child protection breakthrough - Michael Falzon

It was a pleasure to announce that the Child Protection (Alternative Care) Act has been approved by Cabinet and has been launched for public consultation.

The government has a particular commitment to safeguarding children’s rights. Upon entering office we went back to the drawing board and consulted afresh with all stakeholders, including the foster carers’ association, social workers’ association and the Church. Many of the proposals made by these entities have been incorporated in the proposed Act.

This law deals specifically with children who are placed in out-of-home care. We consider it as a breakthrough because it not only improves on existing laws but is innovative in various ways.

Care and custody of minors in need of protection will no longer be entrusted to the minister, who will not be involved in the issuing of care orders. Neither will the government be involved, directly or indirectly, in such sensitive decisions, which will now be taken by the Juvenile Court or Review Board.

This board will not only be consultative in nature but tantamount to a quasi-judicial tribunal. Its operational procedures are meticulously regulated to ensure transparency and accountability. The board will be composed of professionals specialised in child protection.

Care and custody of children in out-of-home care will be entrusted to heads of homes, Appoġġ Agency, foster carers and next of kin. This means the day-to-day decisions would primarily be in the hands of those who take care of the children.

The key social worker will be bound to apply for a passport as soon as he comes in contact with a minor placed in out-of-home care. This will save a lot of bureaucratic procedures faced by children who have to go abroad, whether for holiday or health reasons.

That being said, the State shall take all appropriate measures to promote the well-being of children and to provide all the support services required, to ensure that the children’s rights and interests are safeguarded.

Emphasis has been placed on the voice of the child: the law envisages safeguards to ensure that the child’s opinion is heard. This is done in conjunction with a Children’s House model, ensuring a child- friendly justice system, something being successfully adopted across Europe.

At present, some children suffer due to bureaucratic procedures or where parental consent is unreasonably withheld by the ‘legally’ responsible parent, at the expense of the child’s education and well-being. Some situations require immediate action but right now Appoġġ have to resort to the courts to be legally authorised to act. In order to save precious time, the Looked After Children Department and Appoġġ will be able to amend a social contract without the consent of the parents, if the minor risks losing out on education and health. The parents will have the right to challenge the agencies’ actions in court.

We consider it as a breakthrough because it not only improves on existing laws but is innovative in various ways

For the first time in our legal history, this law also provides for the introduction of a secure therapeutic centre. This will allow the director to detain minors with deviant behaviour and make sure they are placed under therapy for a period determined by the court. All actions will be subject to the court’s scrutiny and approval. 

Children in out-of-home care can be freed for adoption upon a request by the agency or any other interested party. The court can dispense with the parents’ consent but is bound to consider their views before passing judgment. The concept of open adoption, which currently applies only to children over 11, will be extended to all ages, ensuring children in out-of-home care will be freed for adoption at any age and can benefit from a family environment without losing contact with the birth family and siblings.

This new law also proposes that foster carers have access to all acts and documents of the Fostering Board and can open a bank account on behalf of the fostered children, which they have to administer as bonus pater familias.

After 10 years of fostering, foster carers can file an application to adopt the fostered child. The two age restrictions – the 45-year gap between the prospective adoptive parents and the minor, and the age limit of 61 of the prospective adoptive parent – have been removed.

Under this law, unaccompanied minors will enjoy the same rights as any other. As an added protection, any of the professionals assisting the minor may file an application in court requesting the appointment of a special guardian to safeguard the minor’s interests.

The Central Authority will be considered the regulatory body of child protection, introducing the concept of checks and balances for the first time.

The Act also introduces the right of appeal, provided all remedies are exhausted, bringing Malta in line with its international obligations vis-à-vis the European Convention on Human Rights and Fundamental Freedoms.

Public consultation is open until July 31. Documentation can be downloaded from https://family.gov.mt and any feedback can be sent on childprotection.mfcs@gov.mt.

Michael Falzon is the Minister for the Family, Children’s Rights and Social Solidarity.

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