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Malta[1] [print]

Last edited: November 2005

 

Summary and Analysis

 

Malta has a formal child protective system and requires by law that children be heard directly in all proceedings affecting them. All proceedings related to children under the age of sixteen are heard in Juvenile Court by a Juvenile Court Magistrate Judge (see Juvenile Court Act of 1980 below).[2] 

 

The protection of parentless and neglected children in Malta was first implemented in 1962 with the adoption of Legal Notice 13, giving power to the Director of Welfare to ensure that such children were well provided for.  In 1980, the Children and Young Persons Care Orders Act was enacted, enabling the Court and the Minister to issue Care Orders to place a child under protection in case of danger or need. The Juvenile Court was also created in the same year.[3]

 

As expressed in the government of Malta's 1998 State Party Report to the Committee on the Rights of the Child, children in Malta have had a longstanding implicit right to be heard: “One may say that as the law now stands in civil matters, the right of the child to express his/her views, unless specifically indicated, is inferred.”[4] In more recent years, this right has been codified into law. The Commissioner for Children Act of 2003 provides for a Commissioner to be appointed by the Prime Minister to ensure, among other things, that children are given the opportunity to express their opinions and that these opinions are in fact considered (see Commissioner for Children Act below).  To the best of our knowledge, there is no other law that directly provides for children's voices to be heard in legal proceedings.

 

The Commissioner for Children Act also requires that the Commissioner monitor compliance with the Convention on the Rights of the Child as ratified by Malta (see Commissioner for Children Act §§ 12, 17 below). 

 

In Malta, international treaties are not self-executing: for treaty obligations to be given the force of law domestically, they must be incorporated into domestic legislation.  The articles of the CRC have not been directly incorporated into Malta's domestic laws. Yet, according to Malta's 1998 State Party Report to the Committee on the Rights of the Child, the fundamental rights granted to individuals (including children) by Malta's Constitution pre-empts the need to harmonize domestic legislation with the CRC.[5] Article 12 is one of the majority of CRC articles that are in line with the provisions of Malta's Constitution.[6]

 

An exception to the general composition of child protective proceedings in Malta occurs in cases that involve a child whose parents have died or have forfeited their parental authority (see Civil Code below). Such a child is subject to be placed under tutorship (guardianship) until he/she becomes of age or marries, and his/her tutor is required by law to represent him/her in all civil proceedings. It is unclear whether the tutor is intended to represent the opinions of the child or the child's best interests.

 

In 1994, Malta's Ministry for Social Policy created the Social Welfare Development Program to work towards improvement of the Malta's social welfare sector. As part of this initiative, the APPOGG Child Protection Services Program was developed to strengthen services for children in need of care. APPOGG Child Protection Service workers provide preventive, investigative, assessment and follow-up social work to children and families with problems of child abuse and neglect, and offer emergency protection for children suffering from actual or alleged child abuse/neglect when necessary.[7]

 

Sources of Law (In Order of Authority)

 

Statutes

 

Commissioner for Children Act of 2003, Chapter 462[8]

 

§3 – Appointment of Commissioner

(1) There shall be a Commissioner for Children who shall be appointed by the Prime Minister after consultation with the

Committee.

 

§9 – Functions of the Commissioner

The Commissioner shall have the following functions:

(a) to promote and advocate for the rights and interests of children;

 (b) to ensure that children are being given the opportunity to express their opinions and that these are in fact

considered;

(c) to promote the protection of family unity;

(d) to advocate for adequate support to parents for the upbringing of their children;

(e) to foster the development of alternative care to children who need such care with special reference to fostering and adoption;

(f) to seek to ensure that the rights and interests of children are properly taken into account by government departments, local authorities, other public bodies and voluntary and public organisations when decisions on policies affecting children are taken;

(g) to promote the protection of children from physical or mental harm and neglect, including sexual abuse or exploitation;

(h) to promote the highest standards of health and social services for women during pregnancy and to promote special care and protection, including adequate legal protection, for children both before and after birth;

(i) to promote the highest standards of health, and education and social services for children;

(j) to promote the highest standards of leisure, play and recreational facilities for children;

(k) to ensure that all possible measures are taken by the relevant authorities to prevent and remedy poverty and

social exclusion among children;

(l) to promote compliance with the United Nations Convention on the Rights of the Child as ratified by Malta and with such other international treaties, conventions or agreements relating to children as are or may be ratified or otherwise acceded to by Malta. Guiding principles.

 

§10 – Guiding Principles

The Commissioner shall be guided by the following general principles:

(a) that the best interests of children and the family are paramount;

(b) that all children are to be treated with dignity, respect and fairness;

(c) disabled children and children with disadvantaged family or social circumstances should enjoy the same quality of life like all other children;

(d) that children and their families are to be provided with opportunities to participate in decisions that affect them and in defining, planning and evaluating services to children; and

(e) that government, families and communities share the responsibility for the promotion of the development and well-being of children.

 

§12 – Council for Children

(1) There shall be a Council for Children appointed by the Commissioner who shall be the chairperson and six other members as follows:

(a) one person appointed by the Minister;

(b) one person appointed by the Minister responsible for Health;

(c) one person appointed by the Minister responsible for Education;

(d) one person appointed by the Minister responsible for Home Affairs;

(e) one person appointed by the Minister responsible for Justice; and

(f) the Chairperson of the Committee.

(2) The Council shall have the right to co-opt up to seven other persons who, in the opinion of the Council, best represent children and the rights of children. These persons shall, as far as possible, be children and people involved in the promotion of children's rights.

(3) The Council shall not act unless the chairperson and two other members are present.

(4) The Council shall meet at least once every three months and shall be convened by the chairperson. The chairperson shall also convene a meeting of the Council when requested to do so by at least two members thereof.

(5) The Council shall, subject to the foregoing provisions regulate its own procedures.

(6) The functions of the Council shall be:

(a) to monitor compliance with the United Nations Convention on the Rights of the Child as ratified by Malta and with all such other international treaties, conventions or agreements relating to children as are or may be ratified or otherwise acceded to by Malta;

(b) generally to advise and assist the Commissioner in the performance of the functions of the Commissioner as listed in this Act;

(c) to advise and assist the Commissioner in the promotion of the welfare of children as specified in article 11.

 

§17 – Compliance with the UN Convention on the Rights of the Child

(1) If it appears to the Commissioner that a particular person or body is not complying with the provisions of the United Nations Convention on the Rights of the Child as ratified by Malta, then the Commissioner may make recommendations in the form of a compliance notice, which shall state the Commissioner's opinion as to the way in which the provisions of the Convention are not

being complied with and what action should be taken to comply.

 

Juvenile Court Act of 1980, Chapter 287[9]

 

§3 – Juvenile Court

(1) There shall be set up in accordance with the provisions of this Act, a court of law to be known as the Juvenile Court for the purpose of hearing charges against, or other proceedings relating to, a child or young person in accordance with this Act and for the purpose of exercising any other jurisdiction conferred on juvenile courts by or under this or any other Act, whether before or after the

coming into force of this Act.

 

Civil Code, Title V – Of Minority and Tutorship, Subtitle II – Of Tutorship

 

§158 – Where minor is subject to tutorship[10]

Any minor, whose parents have died or have forfeited parental authority and who has not married, is subject to be placed under tutorship until he becomes of age or until he marries.

 

§172 – Duties of tutor[11]

The tutor shall have the care of the person of the minor; he shall represent him in all civil matters, and administer his property as a bonus paterfamilias.

 

International Law

 

Convention on the Rights of the Child,  Article 12[12]

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

Additional Resources and Links

 

Government of Malta

http://www.gov.mt/

 

Family Related Court Services

http://www.gov.mt/frame.asp?l=2&url=http://www.appogg.gov.mt/services/services_court.htm

 

Government of Malta Child Protective Services

http://www.gov.mt/frame.asp?l=2&url=http://www.appogg.gov.mt/tfal_en.htm

 

Judicial Branch of the Government of Malta

http://www.gov.mt/page.asp?i=78

 

Department of Information of Malta

http://www.doi.gov.mt/EN/gazetteonline/2005/11/default.asp

 

Malta's Ministry for Justice and Home Affairs – Index of Legislation

http://www2.justice.gov.mt/lom/chronological_index.asp?LangID=E&PubID=LG&PSB=B

 

 



Endnotes

[1] This page is also available as a .pdf Document, and Word Document.

[2] See Government of Malta website, available at http://www.gov.mt/page.asp?i=78.

[3] Initial Reports of States Parties due in 1992: Malta 03/09/98, CRC/C/3/Add.56, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/c7ca5644d962a7548025677e00352d53?Opendocument, and also here, and also as .pdf Document, and also as Word Document.

[4] Id.

[5] Id.

[6] See Constitution of Malta, available at http://www.oefre.unibe.ch/law/icl/mt00000_.html, and also here, and also as .pdf Document, and also as Word Document.

[7] APPOGG Child Protective Services, available at http://www.appogg.gov.mt.

[8] Commissioner for Children Act of 2003, Chapter 462, available at http://docs.justice.gov.mt/lom/Legislation/English/Leg/VOL_14/Chapt462.PDF, and also here, and also as .pdf Document, and also as Word Document.

[9] Juvenile Court Act of 1980, Chapter 287, available at http://docs.justice.gov.mt/lom/legislation/english/leg/vol_6/chapt287.pdf, and also here, and also as .pdf Document, and also as Word Document.

[10] Malta Civ. Code § 158, available at http://www.legal-malta.com/law/laws-of-malta.htm, and also here, and also as .pdf Document, and also as Word Document.

[11] Malta Civ. Code § 172, available at http://www.legal-malta.com/law/laws-of-malta.htm, and also here, and also as .pdf Document, and also as Word Document.

[12] Malta ratified the Convention on the Rights of the Child on September 30, 1990.  See Office of the United Nations High Commissioner for Human Rights website, available at http://www.unhchr.ch/tbs/doc.nsf/Statusfrset?OpenFrameSet.

 

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