The draft national children’s policy is a much-needed policy because domestic legislation does not contain anything that brings children’s rights and needs in one single document. The policy will help to facilitate the notion of children’s rights and raise awareness about it.
The right of children to participate needs to be put into practice and not simply abandoned in documents- Ann Marie Mangion
Children are already mentioned in several key provisions of law. For example, they are mentioned in the Civil Code where separation, divorce, filiation and so on are tackled. They are also mentioned in the Juvenile Court Act and in other key pieces of legislation but, and this is very important, children are mentioned in these provisions solely because they are directly involved in the equation. For example, there cannot be provisions regarding separation or adoption without children being mentioned. That simply would not make any sense.
However, what is missing in our legal provisions are children’s rights. In chapter IV of the Constitution, we have the fundamental human rights that are applicable to children as well because children are human beings. However, it does not necessarily mean they are all suitable for children. For example, article 36 of the Constitution states that human beings should not be subjected to inhuman or degrading punishment or treatment. But, what is degrading to a child is not degrading to an adult and vice versa.
The protection from cruel treatment and punishment is of specific importance to children – this is omitted in article 36. Isolation as a punishment might not amount to inhuman and/or degrading treatment if served to an adult but it will definitely be cruel punishment to a child.
The European Convention on Human Rights is of fundamental importance with regard to human rights and is equally applicable to children. At the same time, it is simply not enough to safeguard children. That is why the United Nations felt the need to have the United Nations Convention on the Rights of the Child, a set of rights that give added protection to children.
However, and this is very unfortunate indeed, the United Nations Convention on the Rights of the Child, although signed and ratified by Malta, is not incorporated in its domestic law. This has been of concern to the Committee of the Rights of the Child, which even urged the Maltese state to take the necessary action for its incorporation.
Hopefully, as a result of the draft national children’s policy, this mindset is set to change and should lead to the UN Convention on the Rights of the Child being incorporated in Maltese legislation. First of all, in the draft policy, the Convention on the Rights of the Child was quoted to a great extent and referred to as a source of children’s rights. Therefore, the need and importance of such a convention is being effectively recognised and given its due importance.
The draft policy states that children are not lesser human beings but that they are human beings in their own right and have rights pertaining to them – one of the most basic rights being the right of expression.
What is important is the kind of participation children are given. The draft policy states: “A difference needs to be made between consultation and participation. Whereas participation implies that children are actively engaged in designing programmes and in decision-making, taking into account their age, abilities and cultural diversity, the former (that is, consultation) means that children’s views are sought but not necessarily put into practice. In such exercises, very often younger children are not given the opportunity to participate. This signifies a danger, since it should be acknowledged that children of all ages have the right to be heard and be actively involved. Alternatively, society must explore different methodologies whereby participation is facilitated for all age groups.”
This, I believe, is the crux of the policy because if children are not heard and are not allowed to participate then we are effectively deeming children as not good enough, not competent enough, in other words, a lesser human being.
I dare say that all other rights are ancillary to or a by-product of the right to participate. In fact, in research I had carried out, children were asked how they felt when going to the medical practitioner and the single aspect that bothered them most was the fact that some medical practitioners ignore the fact that the children themselves are sick and they speak to the parents while ignoring the children present. Children would have liked it better if medical practitioners included and acknowledged them in the conversation and not just simply ignored them.
In fact, allowing children to actively participate in the decision-making process will not only acknowledge children as having rights in their own right but will also help children evolve their capacities as they grow.
This is easier said than done. The right of children to participate needs to be put into practice and not simply abandoned in documents.
As stated in the draft policy, “children participate in a number of activities in their daily lives, ranging from play, joining in conversations, to attending school. Yet, in the context of the United Nations Convention on the Rights of the Child, participation is more than simplistically being involved in conventional activities. It involves being engaged in decisions rather than merely taking part”.
Dr Mangion is a lawyer and a published author with a special interest in family and child law.