Strasbourg judges say Malta must provide tribunal to challenge care orders

A mother convicted of neglecting her children won the backing of Strasbourg judges who agreed that Malta had breached protection of family life laws.

In a Chamber judgment in the case of M.D. and Others versus Malta - which is not final - the European Court of Human Rights held, unanimously, that there had been a violation of the rights to a fair trial and protection of family life.

The case concerned the inability of a mother and her children to challenge a care order issued by the government, and the subsequent automatic and permanent removal of the mother's parental rights following her criminal conviction for neglect of her children, and the impossibility for her to challenge that measure before a tribunal.

The European Court found that her rights were breached because they could not challenge the care order, and because she had been automatically and permanently deprived of parental rights after her conviction.

The European Court also said that the Maltese authorities had to provide for a procedure allowing the mother the possibility to request an independent and impartial tribunal to assess whether the removal of her parental rights had been justified. It further recommended that Malta take general measures to ensure an effective access to court for persons who have been affected by a care order.

The court held that Malta was to pay each applicant €4,000) in respect of non-pecuniary damage and €5,500 to the mother for costs and expenses.

Background

The applicants were the mother, 43 from Hamrun, and her two minor children (born 2000 and 2001).

In July 2005, following an investigation by the social services and a recommendation by the Director of Social Welfare, the Social Policy minister issued a care order placing the two children in an institution run by nuns. The Juvenile Court confirmed the care order the following month, after it heard objections by the mother.

At the same time, criminal proceedings were brought against the mother and her partner, who was the alleged father of the children. In March 2006, both of them were found guilty of cruelty towards the children and were sentenced to different terms in prison.

Among other things, the mother was found to have severely neglected her children and, possibly because of her partner's threats, not to have reported his repeated beatings of the children.

When the criminal proceedings against M.D. and her partner started, their relationship ended. The mother was given supervised contact with the children but attempts to persuade the minister to revoke the care order failed.

In April 2007, the mother brought constitutional redress proceedings, claiming the care order could not be re-examined by a court and could only be revised by the minister who issued the order at her discretion.

In April 2009, noting the care order was permanent and valid until the children reached 18, the Civil Court found a violation of her right to fair trial and to family life because it was not possible in law to have access to a court to challenge the merits of a care order.

Following appeals by both her and the Attorney General, in May 2010, the Constitutional Court held that there had been no violation of Articles 6 and 13. The court confirmed that the mother had lost all rights over her children as a result of her criminal conviction - given that she had no rights over the children, she could not act on their behalf.