Minors vs Adults

Claudia Calleja looks into the workings of the Family Court and how the court looks through the eyes of a child.

The word of the authorities

The court is no place for children... but sometimes the young witnesses are indispensable to a case and have to face the sombre world of the law courts.

Seen through the eyes of a child the courts - a foreign, formal and grown-up environment - can be very intimidating and sometimes this is made worse when some children are called to testify against a parent, relative or abuser.

For a child having to take the witness stand may be a traumatic experience and, for this reason, the courts only call children to the stand in cases where they cannot do otherwise, the Parliamentary Secretary in the Ministry of Justice, Carmelo Mifsud Bonnici, explained.

"It's not a matter of children's rights or not listening to their voice but it's a matter of sparing them the traumatic experience. The courts try, whenever possible, to keep children out of the law courts to avoid transforming them into ping pong balls in the hands of adults," he added.

Dr Mifsud Bonnici explained that since the Family Court was set up in December 2003 the way children give evidence has evolved in that, when necessary, video conferencing allows children to testify in real time while offering them protection.

Although there is still work to be done he felt the justice system was moving in the right direction when it comes to children as, for example, the introduction of mediation and child advocates has been beneficial.

He added that in the White Paper Towards A Better And More Expeditious Administration Of Justice it is being suggested that children testify once.

The idea is that children are examined and cross-examined in one session which is recorded so that the recording, which may include visuals to reveal body language, can be reproduced when necessary.

This is because when a child takes the witness stand s/he may undergo psychological trauma and the duration of the proceedings causes double damage as it delays the healing process while rendering the child's recollection of the incident in question obscure. Dr Mifsud Bonnici explained that there are currently no set guidelines as to how a child should give evidence.

There is no set rule as to age either. As long as the child understands that lying under oath is wrong s/he is allowed to testify.

He added that although the Chief Justice may issue guidelines for dealing with a child witness, he personally was somewhat "queasy" about such guidelines. "Each child is a different child and each case is a different case. You can't place them in the same compartment."

Speaking about the request by the Commissioner for Children, Sonia Camilleri, for the appointment of a second judge in the Family Court, he said the Chief Justice has taken the necessary steps so that another judge would help Mr Justice Ray Pace in the Family Court. This was because statistics show that a disproportionate amount of cases were assigned to Mr Justice Pace when compared to other judges.

Last year 451 cases were assigned to Mr Justice Pace when the highest number of cases assigned to another judge was 170.

Nevertheless, last year Mr Justice Pace decided the same amount of cases as in previous years. He decided 435 cases and handed down 620 rulings in separation cases. The highest number of cases decided by another judge was 270.

Dr Mifsud Bonnici let it be known that even when Mr Justice Pace was unwell, work in the Family Court did not come to a halt as the hardworking judge continued operating despite his health condition.

A second Family Court judge, he said, would not be permanently based there as there are certain disadvantages to having many people working in the Family Court.

In cases of a family nature it is important to have someone to concentrate and specialise on the subject.

The same concept applied to the Family Court's criminal section, set up last September, where one magistrate was appointed to hear cases of a criminal nature and, some time later, another magistrate was appointed to hear child abuse cases.

Dr Mifsud Bonnici understood Ms Camilleri's worries and explained that her concerns were being looked into. "For us, children are a priority but we must be careful as how to integrate children in the Family Court and in the legal system.

"We must be careful because although most of the time child witnesses are honest, we cannot encourage a legal mechanism were, no matter what a child says, it is always taken as the truth."

Each case has to be looked at objectively and a balanced mechanism found, Dr Mifsud Bonnici said.

He added that the government was lending an ear to the existing problems. "We must take care to move forward and make decisions that can be built upon. Because it is one thing coming up with a solution just for the sake of keeping people happy and it's another thing finding the right solution, the benefits of which can be reaped by time."

The word of the Commissioner for Children

The word of the Commissioner for Children:

In the annual report, the Commissioner for Children, Sonia Camilleri, said that the setting up of the Family Court was undoubtedly a positive step in the right direction.

Naturally, she said, once only a year had passed since the court was set up there were certain issues that still had to be addressed. Mrs Camilleri pointed out the need for a second judge in the Family Court adding that the judge is in urgent need of a trained back-up team.

Such shortcomings, she said, resulted in delays in separation cases. Her report also showed that, out of 82 requests for help made to her office last year, 38 dealt with court delays or related problems.

Mrs Camilleri added that, among other things, the public was not aware of the services offered through child's advocates.

She also described the appointment of a magistrate to hear child abuse cases as "great progress".

The word of a former child advocate

When the Family Court was set up three child advocates were appointed to safeguard the interests of children. The number is now down to two as one of them has regretfully stepped down from the post after a year as she increasingly felt it called for full-time attention.

Former children's advocate Simone Inguanez explained that children's advocates were introduced to give children a voice, without their necessarily having to go through court sessions.

"The appointing of the advocates in the Family Court was a great step in the right direction. It is a real pity however that, so far, the post is only offered on a part-time basis. This means that children's advocates have to juggle their time between the Family Court and their full-time job, which they cannot afford to lose," Dr Inguanez said.

She explained that by being present in a fixed office at the Family Court during normal office hours, children's advocates would be far more accessible to anyone in need of the service. It would allow them time to be present more often for mediation sessions and court sittings and to focus on the important tasks they are assigned.

The role of the advocate is to listen to what the children have to say and safeguard their interests as may be required by the court - which may include attending mediation sessions, filing minutes and compiling reports for the attention of the court.

The advocates are not normally expected or asked to be present during court sittings throughout the case, except when specifically required by the court.

Dr Inguanez explained that most children would not want to hurt anyone of their parents, which may in turn give way to manipulation by the parents. This is why Dr Inguanez believes it is important that when compiling a report the advocate speaks to the child separately, first of all, and then be also alert to any signs of direction coming from both parents in the necessary exchanges - noting the way interaction takes place.

The manipulation of children by parents is not an uncommon occurrence in the Family Court.

Children are often vulnerable as they do not know what to expect out of a lawyer and some parents abuse the position by telling them things like that the lawyer can send them to jail.

To make use of the services of a children's advocate under the current system the child practically requires to be referred through the legal system.

The request for an advocate might come from one or both of the parents or by the mediator or it might be the judge or magistrate who deems it necessary.

Dr Inguanez said that one of the problems lies in that, being still under the authority of both parents, the children would normally need the consent of the parents. Now, the subject matter of their consultation would be the family itself and a parent may have 101 objections to withholding such consent.

She added that the relationship between the child advocate and the child comes with a paradox. "An awkward situation is created since you are taking on a position of trust where the children are required to share their most trying experiences with the children's advocate which then need to feature in the report submitted to court and which is also available to both parents."

Dr Inguanez clarified that children's advocates focus on the interest of the child, which is to be differentiated from the child's desires, as the children might not always be in the best position to make decisions on what their best interests are.

The word of a lawyer

Joseph Brincat has seen the way child witnesses have been dealt with and handled before various magistrates and judges and, through his experience, has formed the opinion that it depends on the character of the presiding adjudicator.

There are no strict rules as to how the child should give evidence or be dealt with as a witness.

It is usually up to the judge or magistrate as some listen to children in the courtroom while others prefer to speak to them in chambers for a more casual environment. The problem is that at times during informal talk what they say is not recorded in the court documents.

Moreover, the approach adopted by the individual judge or magistrate makes all the difference on how a child feels in a courtroom.

Dr Brincat, who is also a labour MP and a former Minister of Justice, recalled an episode when a magistrate asked a child witness to sit next to him on the bench and, sometime later, the magistrate asked his deputy registrar if she had any sweets to give to the child. For some reason the case had to be put off to later that same day and when the child returned in the courtroom and sat next to the magistrate he asked the magistrate if he wanted a sweet as he had just bought some.

Dr Brincat has been working in the law courts since 1966, when he was a deputy court registrar. He has been a practising lawyer since 1970.

He has learnt that the courts generally loath calling children as witnesses, however there are times when their testimony is vital to a case.

He explained that children can be important witnesses especially in the case of violence - one of the worst situations a child can face as her/his castle is threatened from the inside, shattering the feeling of protection.

In separation cases, when it comes to custody, the children are not usually heard. Children experiencing separation proceedings will be going through a period of insecurity and do not always know what is best for them. In fact, every so often in the best interest of minors, the court, even when there is a separation contract and the parties would have agreed, can change a decision and send the child to the other parent or alter the visiting hours.

Dr Brincat said that the law says that the court must decide in the best interest of the child in a case of separation and noted that, in his experience, he has come to believe that the judge's philosophy of life, family background and idea of marriage have a weight on the decision.

When children come in contact with court it is often a trauma for them although some are determined to get through it.

Although their testimony is usually the truth, children may feel they are letting one of their parents down.

Dr Brincat noted that when a child takes the witness stand it is fundamental who interrogates the child first because they are easily conditioned and can come to believe an idea implanted into their minds.

So how does a sombrely dressed adult approach a child?

Dr Brincat explained that children speak "a different language" and so they understand a different language.

"They accept small bites of questions and give small bites in answers. You must be very careful as otherwise they tend to answer the last part of a long question.

"You have always to respect a witness, unless he is utterly not worth of credit. With children you have to accept their childhood," he said.

From a personal diary

The memory is still clear. I first stepped into court when I had just turned 16. I was summoned as a witness against a Paceville bar which was allowing minors in.

I remember waiting on a large, brown bench in a wide, high-ceilinged corridor with my parents. Then, someone called out my name and I was asked to take the stand.

The small courtroom was full and a magistrate commanded me to "look at the crucifix and tell the truth". I had not planned to do otherwise.

A man started asking me questions about where I was on a particular evening and, having been brought up in a English speaking school, I shamefully struggled to reply in Maltese.

I somehow explained where I was - in the bar with my friends - but could not remember what time it was. I was asked several times: "Could it have been later than 10 p.m.?" But I had no idea and the harsh tone used was not helping.

When I stepped down, my parents were waiting for me outside. I remember bursting into tears. What had I done wrong? Why were they scolding me in there?

I soon got over it but remained somewhat weary about the law courts labelling them as "cold". The irony is that today I go there practically every day for work purposes and have come to see the courts in a different light.

Of course there is room for improvement in certain matters but now I know that there are some people there who put their heart and soul into making the law courts the best environment it can be.

The Family Court

The Family Court, a Lm500,000 project, was officially inaugurated in December 2003.

In an attempt to deal with court cases in a more humane manner the mediation process was introduced. This mandatory process aims primarily at reconciliation and, eventually, a separation by contract and not through litigation.

Children's advocates were also appointed to safeguard children's interests.

In September 2004 the jurisdiction of the Family Court was extended to a criminal nature.

Magistrate Anthony Vella was appointed to hear criminal cases of a contraventional nature involving one family member against another.

Such contraventions include: parents failing to pay maintenance or failing to look after their children; adults failing to help parents in need; the breach of a separation contract and threats; assault and slight injury.

Then, in November Magistrate Jacqueline Padovani Grima was appointed to hear cases involving child abuse in the Criminal Court.