The case of M.D. and others v. Malta, decided by the European Court of Human Rights on July 17 is a landmark case and a very welcome one because it will hopefully be the catalyst for legal amendments in this area.

The facts of the case are very clear and straightforward and very much typical of children who are put under a care order.

The applicants – M.D. and her two children, R.D. and A.D. – “alleged that they did not have access to court to contest the care order following a change of circumstances” (application number 64791/10, p. 1). This is so because, once a care order is issued, the parent has 21 days from the receipt of the registered letter informing them of such order to contest it. Once the 21 days pass, then the parent has no other recourse to revoke the care order. The care order can only be removed at the discretion of the minister responsible for the sector.

This is unjust, even prima facie, because discretion can be wide and may also be unfair. Care orders are not simply issued when a child is found guilty of a criminal offence. The court must also be convinced that there are no other alternative and suitable methods available and the child is in need of care or control, which s/he is unlikely to receive unless a care order is issued in his/her regard. Once the time limit for an appeal to be filed has passed, such a care order can only be removed by the court on application by the minister. This applies to children who were given a conviction.

What about other cases where the children are not convicted delinquents but are simply removed from their parent/s because they are in need of care, protection and control? Such care orders can be issued if the minister deems it is necessary after hearing the parties involved.

If a care order is issued, the parent/s will have 21 days to lodge any objections to it. Such objections can also be made verbally. When the objections have been registered, the Juvenile Court will assess whether the care order is to be revoked or confirmed. If confirmed, the care order will remain in place until the child becomes of age, unless the original reasons for which it was issued have ceased to remain in place and this solely at the discretion of the minister. Discretion is a powerful tool because it gives the minister wide powers to decide whether a care order is to be revoked or otherwise.

However, care orders are not like court judgments, which are subject to appeal. Care orders are issued because certain facts exist at the time, which facts are subject to change as time passes by. Parents can improve their environment and parenting skills and, thus, they would eventually be able to provide their children with adequate care, protection or control and shield them from moral dangers. However, notwithstanding these positive changes in circumstances, the parents would still be powerless to contest the care and custody of their children. This is unfair because even if the parents improve their situation they would still be unable to challenge the care order if the minister insists not to revoke the care order on the basis of discretion.

In contrast, although a different scenario altogether, when an asylum seeker files an application with the Office of the Refugee Commissioner to be assessed for refugee status, s/he will have the right to appeal the commissioner’s decisions.

In addition, if an asylum seeker has new information that is material to the application for asylum, and which the applicant could not have been possibly aware of or which s/he could not have submitted such material earlier, an asylum seeker will have a further chance by filing another application to the Office of the Refugee Commissioner, even after the previous decision has become final.

Thus, an asylum seeker has another opportunity to present his/her case once again if new material is provided and which could not have been presented before and rightly so.

In the case of care orders, the parent does not have an opportunity to present the case once again if there is a change of circumstances.

In the case of M.D and others v. Malta, M.D. had also her parental responsibilities removed due to her criminal conviction of ill-treatment and neglect of her children and the ECHR found that she did not have a remedy against such deprivation. It is interesting to note that, in its submissions, the Court stated that “the government considered that deprivation of parental authority emanated from the issuance of the care order, which, once in place, transfers the exercise of powers with respect to care and custody to the minister. It was, therefore not the judgment of the Criminal Court that caused the interference” (Ibid, para 67, p. 17).

However, the Court found that the removal emanates from criminal law and “the removal of parental rights, which was automatic upon the criminal courts’ finding of guilt, constitutes an interference with the first applicant’s family life” (Ibid, para 73, p. 18).

The Court added, that, it “is automatic and (it)... escapes scrutiny by the domestic courts in relation to whether it is in the best interests of the child to apply such a measure at the date of conviction” (Ibid, para 77, p. 19) and the Court concluded that “it follows that the measure at issue, insofar as it was automatically applied, perpetual and not subject to any periodic revision or, at least, to subsequent assessments following a request in that regard, was not ‘necessary in a democratic society’ for the aforesaid aim” (Ibid, para 79, p. 20).

This is a truly remarkable judgment that should lead the way so that the best interests of the child and the right to family life are better protected.

Dr Mangion is a lawyer and a published author with a special interest in family and child law.