No justice without access | Ruth Farrugia

Ever since the United Nations’ Universal Charter of Human Rights was first drawn up, it has been widely acknowledged that the concept of ‘human rights’ alone, without a support system to make them obtainable in practice, cannot be worth very much.

It would be no consolation to a starving child, for instance, to know that the UN Charter guarantees the ‘right to food’ to all human beings everywhere. After all, one cannot eat a human right.  

It was to redress this inherent flaw that nations around the world – to differing degrees – took a number of initiatives to translate the conceptual idea into a workable system.  On paper, the system guarantees access to justice through the law courts and various other legal instruments. But paperwork rarely matches up to the intricacies of any system in practice. In Malta as everywhere else, some people – or groups of people – will invariably find it harder than others to access what should be theirs by right. 

Few seem to know this more than the current President of the Republic, who opened the conference to launch of the Council of Europe Strategy for the Rights of the Child with a speech about access to justice by vulnerable children.

“Access to justice is not simply a human right – it is the pathway through which all other human rights are achieved and within which they flourish. For children’s rights to be more than a promise, we must promote the ways in which those rights are enforced,” HE Coleiro Preca said last April: strongly hinting that this goal is not being achieved at present. 

“Children are as aware as adults of the abuses of power that have become an all too frequent part of our daily reality. And yet the importance of access to justice, especially regarding the rights of the child, continues to be neglected.”

Fast-forward seven months, and the President’s Foundation for the Wellbeing of Society is gearing up for its second national conference. Perhaps unsurprisingly, the theme is ‘Access to justice for vulnerable children’. Are we to conclude that access to justice is in fact a bigger problem locally than one would think? In what way are we letting our children down?

“The idea is to talk about access to justice because it’s a cross-cutting right,” Dr Ruth Farrugia, the Foundation’s director general, tells me when I put the question to her. “The UN Convention on the Rights of the Child gives children all sorts of rights, but if you can’t access the justice system, you can’t access any of them...” 

Even without any direct obstacles, she points out that the process of seeking justice is in itself often stressful and traumatic. “Access to justice, we know, isn’t the easiest of things for most people. For children in particular, it’s a double whammy.  In this conference we will be focusing on vulnerable children in particular. But when you think about it, access to justice is an issue throughout the full spectrum of society.

Everywhere: not just in the justice sector itself, but also in the education sector, for instance. In all sectors. There are some sectors which have been more inclusive; which listen more... and others which are doing less of a good job, I suppose. So the idea behind the conference is to examine what we are doing, what other countries are doing... to share experiences with a view to finding out what works best.”

Certainly there should be much to discuss. The list of speakers includes Marta Santos Pais, Special Representative of the UN Secretary-General on Violence against Children; Regina Jensdottir, Head of the Child Rights Division of the Council of Europe; Astrid Podsiadlowski, from the EU’s Fundamental Rights Agency,  and Danielle Douglas of the International Foster Care Organisation, among others.

Significantly, it also includes local child speakers. “They’re going to talk about their own issues with access to justice. We always bring in the child’s perspective... we feel we have to, if we’re talking about children. As any child rights activist will tell you: have you really listened to what children want or expect out of this? To give you an example: when the National Child Policy was being drawn up, there were meetings with all children in care. I was involved in the process at the time – wearing a different hat, I must point out, from the one I’m wearing today. We wanted to know how children felt about the care system. And it’s incredible how the law somehow overlooked certain things which seemed really obvious, when looked at from a child’s perspective...”

She gives the example of a girl from an abusive family background, who was taken into alternative care directly from school. “She could understand what was happening at some level... but what she couldn’t understand was why she wasn’t allowed to go home and say goodbye to the dog. To a child, that’s a big deal. So is being allowed to go home and take your personal belongings. At that point the law didn’t cater for anything like that. We weren’t looking at it from the perspective of children. Ultimately, the perspective of the child must be taken into account. The question is, how? We think that encouraging child participation – and making people think of child participation as an obvious thing – is our contribution to their present and future well-being.”

More than just ‘children’, in this case we are talking about ‘vulnerable’ children. Farrugia explains that the conference will be looking at four specific types of vulnerability.

“There are children who are victims of violence; children who are in court proceedings because they’re in trouble with the law; children who are indirectly in court proceedings, because their parents or carers are in court for whatever reason; and asylum-seeking children. That doesn’t mean we’re not interested in children with mental health issues or disabilities. We are. We’re certainly interested in children in alternative care. That emerges as one of the main groups. We’re interested in how access to justice works out for those children, too...”

Couldn’t it be argued, however, that part of the problem is precisely that the judicial system itself was not conceived with children in mind? In Malta, for instance, there are very glaring lacunae when it comes to young offenders. This has sometimes resulted in awkward and problematic issues: such as placing teenage girls in the same prison ward as adults – or even at Mt Carmel Hospital – for lack of any suitable alternatives.

The President herself suggested that our Courts are decidedly child-unfriendly in her speech last April: “Children must be able to understand, to use, and, above all, to trust the legal systems that protect and facilitate their human rights. A child must know that the process itself is accountable, effective, and transparent – that it is worthy of the trust of a child, and capable of meeting that child’s needs.”

To this end, she argued that what was needed was a “profound change in the relationships between children and the legal system itself...”

So is this what the conference hopes to achieve? 

“We certainly want to come away with concrete proposals about how to improve the system. As for the shortcomings you mention... Mt Carmel, for instance: placing a child there who has offended in some way, or who is in conflict with the law... that isn’t a good idea. Of course it isn’t. But even within that system: what sort of access does a child have to justice from within Mt Carmel? That is an issue in itself...”

Turning to a different category of vulnerable child: asylum seekers.  Up until a few years ago, newspapers such as ours received constant reports of children being kept in detention centres such as Safi or Hal Far: where conditions were very far from suitable. The situation has reportedly improved since, but that seems to have more to do with declining arrival figures than with the actual system. Would Dr Farrugia agree with that assessment?

“Let me put it this way: detention of children was an issue at the time you speak of. In fact the very first thing the President did when she took office was to convene a rather historic meeting between the IOM and the UNHCR. The meeting took stock of the detention situation, and for the first time all the relevant stakeholders were around the table. They came up with a set of proposals, including the removal of detention of children. We thought it would be a good idea to have another meeting, a year on, to see where those proposals have got to. I am happy to say that we were told that detention for children is gone. Meanwhile, asylum seeking children outside of detention... that is to say unaccompanied minors... are also few. I don’t have reliable statistics, but through the grapevine I am told there are no more than four cases at present...”

Nor is this the only difference. “The entire immigration landscape has changed. Those unaccompanied minors I told you about will most likely not have come by boat, as in the past, but by plane. Naturally this doesn’t mean they are not vulnerable. But I think it’s fair to say there has been a change for the better. I think it’s a real achievement that there is no longer any detention of children, for instance...”

Malta has changed in other ways, too. One change that may affect children directly concerns the loss of open spaces. More pointedly, that the urban environment is simply no longer safe for children. To give an example from my own childhood: it was perfectly possible, 30-odd years ago, to play football in the streets. Today, any open-air activity at all takes place at the risk of being run over...

Given that the Foundation deals specifically with ‘wellbeing’... is this a cause for concern?

“I’m sure it does have an impact on the wellbeing of society, both for adults and children. We have a Children’s Council, which meets around this very table. Seven-to 11-year-olds, all from very different backgrounds. The environment is huge on their agenda, when they get talking. I mention this because the UN Committee on the Rights of the Child holds its general meeting every year in Geneva. A member of the Children’s Council went there to talk about the ‘Secret Garden’ project as something positive for the environment. We also had two children who went to the Eurochild conference in June, again to talk about the project: about how children use the open space to their advantage...”

Interestingly, the ‘Secret Garden’ project itself came about at the request of children themselves: when asked what they feel most hindered their well-being, ‘lack of open space’ was one of their answers. The idea (to quote from the ‘mission statement’ is to ‘create an interactive and creative place at San Anton gardens that will give Maltese children the space to express their personality, express their opinions and become more conversant in life-skills’.

“On a Saturday from April to June, this place is jam-packed. There are kids doing their own thing in different ways. One activity we had last year, which was great fun, was again suggested by the children themselves. They wanted to know how kids in other countries lived. So we invited ambassadors to come and be interviewed. The children here decided what questions to ask, and it was documented on our website... and the ambassadors were good sports and went along with it.”    

As with her experience with the Child Policy, what Farrugia finds most interesting is the perspective of the children themselves.

“For instance, we have a library for children. There are bookshelves on wheels, which they can take out in the garden. We also support a programme called ‘Read With Me’, but when we asked the children they said: ‘That’s fine, but all we want is to just sit down and read...’ To me that was so refreshing. What they were telling us was that they were fed up of people structuring their time. They could use their own imagination, and use the space how they wanted to...” 

Meanwhile, the Foundation itself (as its name implies) deals with the wellbeing of society as a whole: not just children. Farrugia admits that both ‘society’ as a whole, and also its ‘wellbeing’, turned out to be much broader themes than she had at first imagined.

“For instance, we have a conference coming up about retirement. Research shows that there is a dip in wellbeing associated with retirement. So far this seems obvious. What I didn’t know, however, was there are some good examples, here in Malta, of companies helping people to deal with retirement. We got to know that Farsons, for example, has a scheme for employees reaching retirement age. You can take on a mentorship role, which gives the satisfaction of passing on what you’ve learnt to the younger generation. It’s also a way of being phased out slowly before you leave, so it’s not a case of being a full-time employee one day, and then nothing the next. There are more of these examples, and our mission as a Foundation is to learn more about them.” 

One recent meeting that stands out in her memory was with survivors of domestic violence.

“For obvious reasons what was shared around that table was never publicised. But they got together and discussed what worked for them. I won’t say they left the meeting ‘on a high’, but there was definitely a sense of positivity. They all said that it was a dark time in their lives... but some also added: ‘...and these are things that helped me through it’. Others said, ‘that’s a really good idea. Maybe I can use it...’ This is ultimately what this space is all about. Every meeting we have, for us, is about learning what works. And people have some very ingenious ways of making things work...”