Government ponders amendments to ‘unfair’ care orders

The justice and family ministry is considering whether to amend legislation which at present does not accord parents or guardians of children under care orders, the ability to challenge these orders.

A landmark case in the European Court of Human Rights by a mother who took the Maltese government to the Strasbourg court, declared that such care orders must be subject to the scrutiny of a court and not remain solely the discretion of the minister responsible for family affairs.

Care orders for children in Malta are issued by the ministry, in which government assumes the responsibility of the child's welfare. Once care orders are issued, the parent has 21 days to contest it, but no other recourse to revoke the care order after the lapse of the time-limit.

The care order can only be removed at the discretion of the minister responsible for the sector.

A Maltese mother who was cleared of criminal charges, which had cost her the custody of her children when these were placed under care order, took the government to the ECHR due to the inability to challenge the order, which prompted the automatic and permanent removal of her parental rights.

The European Court found that her rights were breached because she 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 justice ministry has told MaltaToday that the government had taken note of the judgement.

"We have taken note of the judgment which has not yet become final. Should government decide not to request an appeal it will implement the appropriate legal amendments.

"Such amendments would not necessarily mean less protection for abused and battered children, but they would grant increased procedural rights which the court found to be lacking in the current law," a spokesperson for the ministry said.

Family lawyers who spoke to MaltaToday say the law is unjust because it affords the minister the power to determine personally whether a care order should be stopped or not.

Objections to care orders within the 21-day limit are heard by the juvenile court, to determine whether a care order should be confirmed or not.

While care orders stay in force up until the child reaches 18 years of age, unless the minister revokes the order, they cannot be appealed in court by either parents or the children themselves.

In the case of the mother in question, 43 from Hamrun, she was found guilty together with her partner for severely neglecting her children, and both were sentenced to different terms in prison.

After her release, she 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.

She lost a constitutional case following appeals by the Attorney General in 2010, which confirmed that the mother had lost all rights over her children as a result of her criminal conviction.