The United Nations Convention on the Rights of the Child is a document that spells out children’s rights. This was achieved after the need was felt for the rights of the child to be declared in a convention. Children are holders of rights and, therefore, need to be further protected and empowered.
For the convention to reach its full potential, it has to be incorporated into the domestic law of the country. If it remains unincorporated, the convention will be very much without any strength in that country. For instance, when an action is filed, it cannot be based solely on a provision found in the convention because the convention is not incorporated into our domestic law. It can only be referred to after basing the action on a Maltese legal provision.
One might argue that for the convention to be optimally used we could do just that: base the action on a Maltese legal provision while referring to the convention. If that were so simple it would be brilliant but, sadly, this is not the case.
Although the children’s best interests are of utmost importance and, in fact, the courts state that children’s rights are paramount and go beyond the rights of the parents, something which is reiterated in the convention, there are several other provisions found in the convention that, sadly, do not feature in our domestic law.
Even more sadly, our domestic law goes against certain provisions found in the convention. A case in point would be the Maltese position on corporal punishment. Maltese civil law does not categorically state that corporal punishment inflicted by parents on their children is not to be tolerated since it goes against the convention. In fact, according to civil law, it is perfectly normal and permissible for a parent to inflict a punishment on a child as long as it is within the parameters of “reasonable chastisement”. This should not be in our law since it goes against the convention.
How can we expound on children’s best interests when the law has a provision that goes directly against children’s best interests? This effectively means that smacking in all shapes and forms is tolerated as long as this is within the parameters of “reasonable chastisement”.
What is “reasonable chastisement”? The law does not define what reasonable chastisement is and, therefore, this is left up to the courts to interpret and decide on what is, in effect, within the parameters of reasonable chastisement.
Another aspect that is not in resonance with the convention is the use of the phrase “parental authority” in the Civil Code. This stems from the idea of years gone by where children were regarded as “ought to be seen but not heard”. In the past, children were under the authority and control of the parents and were very much considered possessions and properties belonging to their parents. However, such mentality has long been discarded because children are individuals in their own rights.
Punishment within the parameters of reasonable chastisement is a sorry legacy of such parental authority, which, alongside parental authority, is still found in this day and age in the Civil Code.
Rebecca Rios-Kohn says that states shall “undertake to adopt all appropriate legislative, administrative and other measures” so that the rights promoted by the convention are reflected in that state’s domestic law (Protecting The World’s Children: Impact Of The Convention On The Rights Of The Child In Diverse Legal Systems, Unicef, 2007, p. 61).
The draft National Children’s Policy echoes and reflects the intentions of the convention. However, for the policy to be given effect, its recommendations need to be implemented in domestic legislation. Rios-Kohn adds that “full conformity between national law and the CRC is a critical step towards implementation. This requires reviewing existing legislation and enacting changes as necessary” (Ibid. p. 63).
The human rights provisions found in our Constitution are not enough to safeguard the rights of the child because children need further rights. This is so because, due to their age, what is deemed acceptable to adults may not be acceptable to children and what is degrading to children may not be degrading to adults. Thus, children run the risk of not being protected. That is why the convention’s provisions need to be incorporated into Maltese domestic law.
Should this be done through a Children’s Act? Or through updating the several provisions in domestic legislation, especially the ones found in the Civil Code, to echo the convention? Or through a new title in the Civil Code? Or should we include a set of children’s rights in our Constitution since it already includes human rights?
A Children’s Act, coupled with the necessary updating of the relevant legal provisions concerning children, would be a major step in the right direction. However, if certain rights are included in the Constitution, that will give constitutional power to these rights. The convention can also be incorporated within the Civil Code under the section dedicated to minors.
There are several options as to how the convention can be implemented into our legal system. This has been expounded in the draft National Children’s Policy.
Dr Mangion is a lawyer and a published author with a special interest in family and child law.