The launching of the draft National Children’s Policy has been a welcoming step towards a comprehensive document consolidating children’s rights. Albeit ratified, the United Nations Convention on the Rights of the Child has not yet been incorporated in domestic law and, thus, it leaves a seemingly lacuna in our law when we come to fully apply children’s rights.
...the United Nations Convention on the Rights of the Child has not yet been incorporated in domestic law- Ann Marie Mangion
Many believe that the answer lies in a Children’s Act. But what exactly should a Children’s Act consist of? Is it feasible for Malta to have a Children’s Act?
The draft National Children’s Policy states: “It is believed that a comprehensive Children’s Act can be advantageous, in that it creates a legislative framework which collects the legislation dealing with the lives of children.”
It then adds: “It is however noted that one code can present challenges. An all-encompassing law can be difficult to be adopted, mainly because child-related legislation covers a wide breadth of areas. Additionally, there are a number of legal instruments which, while not specifically relating to children, have a significant impact on the rights of the child. Such situation may lead to an Act which is not holistic after all, minimising the effectiveness it was meant to achieve” (p. 50).
First of all, we need to ask ourselves why do we need a Children’s Act.
We already have legal provisions regarding children such as filiation, adoption, provisions regarding separation and divorce, criminal age of responsibility, juveniles, succession and so on and so forth. But is that enough? The answer is no.
Does it mean that we should remove all the “child” provisions from our present legislations to put them into a brand new Children’s Act? The answer is a definite and resounding no.
It does not make sense – legal or otherwise – to remove good and useful provisions from one place to put them into another place. Therefore, the next logical question would be: What would a Children’s Act consist of? We could incorporate the elements of the United Nations Convention on the Rights of the Child in a Children’s Act or within the present Civil Code. We could beef up the existing legal provisions regarding children’s rights such as what we mean by best interests of the child. The courts have made it amply clear what is meant by children’s best interests but why should we leave it up to case law?
One argument against having a Children’s Act is our legal system. The legal system is civil law based, unlike in England and Wales where it is common law based. Our system is a codified one.
For example, the Divorce Bill was incorporated in our Civil Code under the title of Rights and Duties Arising from Marriage and, thus, we did not have a stand-alone Divorce Act. This makes sense and that is the way it should be because our system is civil law based.
For instance, we cannot simply copy the Children’s Act 1989 of England and Wales and the amendments found in the Children’s Act 2004 because in there are many provisions which already exist in our Civil Code and in other legislations.
For example, the Children’s Act 1989 has provisions on parental responsibility. Provisions on parental responsibility are already found in our Civil Code, although entitled parental authority. (However, the word “authority” ought to be replaced because, nowadays, with growing awareness, children are not seen as property of the parents but persons whom the parents ought to be have responsibility over. Therefore, it ought to be renamed parental responsibility.)
Therefore, it does not make sense to remove the existing provisions to put them in another legal document. We can either include a title regarding children under our Civil Code because it includes the laws relating to persons. Otherwise, we can draft a Children’s Act, something which, it seems, we were already in the process of doing years back. Regretfully, it all seemed to disappear into thin air and we are still left with a legal vacuum.
Such piece of legislation should incorporate, but not be limited to, the values as represented in the Convention on the Rights of the Child, such as rights and obligations concerning children, including the right to participate in decision-making, recognition of the evolving capacities of children.
We should have a legal definition of what are the best interests of the child (something which the Civil Court [Family Section- has already done). It should also incorporate other legal provisions that are essential for children, such as the notion of competency. This must be based on a healthy balance between age and maturity and not simply being age-based, as is the case at present, for example, competency to consent to medical treatment and other medical issues, a legal definition of who is a child, and not simply someone who is below 18 years of age, provisions on equality and discrimination concerning children, the recognition of the right to play and to participate freely in cultural life and the arts and a ban on all types of corporal punishment. We can even incorporate within such legislation the much needed guardian ad litem. The list goes on!
Dr Mangion is a lawyer and a published author with a special interest in family and child law.