That relational breakdown may affect minor children adversely is quite a given. Too often the main players in any such breakdown fail to appreciate the manner in which their dealings and ultimate decisions affect minor children in their care.

There is similarly little room to deny that children do make up their own opinions. Fortunately, our law affords a voice to minor children in the figure of the Children’s Advocate.

The Children’s Advocate is principally tasked to provide legal advice and assistance to children, to establish and present the views of the child before any court of law or any administrative authority, and to provide explanations to the child concerning the possible consequences in the case of compliance with his or her views.

This figure allows a minor to ascertain his/her wishes and feelings, thereby giving a court the opportunity to take into account a child’s voice without, perhaps, placing the child too close to the conflict.

Article 12 of the United Nations Conventions on the Rights of the Child states that the parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

It is also stated that, for this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

The manner in which the Civil Court (Family Section) dealt with one such report by a Children’s Advocate was the highlight of the judgment delivered by the Constitutional Court on February 28. Due to the sensitivity of the matter and in respect of the litigants’ privacy, the parties’ names are not being reported.

The facts of the case were as follows.

The spouses had signed a contract of consensual personal separation which saw their minor daughter residing with her mother, while visitation rights were afforded to the father. Some time after, the mother initiated mediation proceedings based on the premise that what had previously been agreed on the contract with respect to their minor daughter was, in effect, harming same.

The interests of the minor were to be kept supreme and consequently previal

By means of a specific application to the Civil Court (Family Section), the mother, alleging that her daughter was complaining that the father was exerting physical violence on the minor, requested the latter court to appoint a Children’s Advocate to the minor and to, pending the advocate’s report, reduce the father’s visitation hours, which visitiation had to take place, the mother pleaded, under supervision.

Acceeding to this request, the Civil Court (Family Section) appointed a Children’s Advocate. After accessing the report prepared by the latter, the court immediately ordered that the report be sealed, thereby rendering it inaccessible to the parents. It then proceeded to decree that the father’s visitation rights were to be reduced to once a week, for one-and-a-half hours, under the supervision of Aġenzija Appoġġ.

Unhappy with the situation, the father requested the Civil Court (Family Section) to refer the matter of the First Hall of the Civil Court in its Constitutional Jurisdiction, claiming that the fact he could not gain access to the Children’s Advocate report constituted a breach of his right to a fair hearing/trial as protected under the Constitution as well as under the TheEuropean Convention on Human Rights.

With the First Hall of the Civil Court in its Constitutional Jurisdiction finding aginst the father, the matter was referred, on appeal, to the Constitutional Court. In it’s judgment of February 28, the Constitutional Court found that it was not the Civil Court’s (Family Section) order to have the report sealed that amounted to the complained breach, but rather the fact that the Civil Court (Family Section) pronounced its decree without due motivation and based said decree on the Children’s Advocate report without giving the parties due explanation for its decision not to disclose the content of said report.

In its judgment, the Constituional Court emphasised the general principle that litigants were to be made aware of any information being considered by a court when said information is pertinent to the exercise of their rights; where the interests of minors are at play, the court was also to consider whether such disclosure may give rise to any undue harm to a minor.

The court was then to weigh up the interests of a minor against the interests of said minor’s parents, seeking always the best balance. Where such balance is unattainable, the interests of the minor were to be kept supreme and consequently previal. The Constitutional Court also placed significant emphasis on the need for decrees to be well motivated, citing the litigants’ right to be informed of the basis of any such interim decisions.

The Constitional Court concluded that the litigants’ deprivation of access to the Children’s Advocate report, together with the lack of motivation of the decree delivered by the Civil Court (Family Section), indeed constituted a breach, thereby upholding the father’s appeal and declaring breach of the father’s rights as protected by Article 6 of the European Convention on Human Rights – the right to a fair trial.

The Civil Court (Family Section) was ordered to place the litigants in the same situation as that obtaining immediately after the order to have the Children’s Advocate report sealed.

Keith Borg is a partner at Azzo­pardi, Borg & Abela Advocates.