by Dr Andy Ellul

 

Yesterday we witnessed the appointment of seven (7) Child’s Advocates.  This new role the appointed lawyers will be assuming is different from the traditional role we have been accustomed to so far in the Family Court during separation proceedings, be it consensual or litigious. In this scenario lawyers are appointed to simply hear the views of the child and report accordingly.

This is not to say that in these instances the best interest of the child is not safeguarded to the best of the appointed lawyer’s ability. Far from it. However, to-date, the traditional aspect of the Child’s Advocate left much to be desired. In most of the cases, if not all, the Child’s Advocate does not even delve into issues as to how the liquidation of the community of acquests will affect the child, just to give one example.

Last July the Constitutional Court called for changes in this regard, urging the legislator to affect changes to the law regulating the Child’s Advocate in that they were acting both as lawyers for the minors as well as court experts in the same case.

The Children’s Advocate under the Minor Protection Act (Cap. 602 of the Laws of Malta)

This is a totally different role from the one just explained. Under this law, the involvement of the Child’s Advocate is not anymore at the discretion of the Court, or following a request by the parties in question. In terms of Cap. 602, the Magistrate presiding over the Juvenile Court is now bound to nominate a Child’s Advocate at the start of the proceedings. Even though the manner in which they are officially appointed is precisely the same as before, this Act defines the duties and obligations of the Child’s Advocate.

Article 25 of Cap. 602 makes it clear that “without prejudice to the functions of the Children’s Advocate under any other law”, the Children’s Advocate shall:

(a)  provide legal assistance and advice to the minor;
(b)  submit the views of the minor in any court or with any administrative body  as  relayed  to  him  by  the  key  social worker or by an expert on minor protection as appointed by the Court for said purpose;
(c)  provide explanations to the minor on the possible consequences should they conform to his or her wishes; and
(d)  provide the minor with any relevant information.

Four important aspects which are now enshrined in a mandatory fashion under this new law, and not left at the discretion of the Court, are the following:

The first requisite is that the Child’s Advocate shall receive specialised training before acting as such, “so as to effectively represent and safeguard the views and wishes of the minor”.

The second instance is that upon receiving an application for the issuing of any of the protection orders contemplated under Article 18, the Court shall immediately appoint a Child’s Advocate.

The third issue is that upon receiving an Emergency Order request in terms of Article 20, the duty Magistrate shall appoint a Child’s Advocate so that he will participate throughout the relative proceedings.

The fourth aspect, which to me is the most crucial, is that the Juvenile Court is now bound to take the considerations of the Child’s Advocate into account before deciding on important matters which will ultimately leave a mark on the child’s life.

We still however have to see how this role will evolve in the Family Court, if at all, as Cap. 602 is specific to protection order proceedings.

Dr Andy Ellul is Managing Partner at Lex Group Legal