The Protection of Minors Bill, currently open for consultation, appears to be on the home stretch after a sinuous journey that has already taken five years. The current bill is the third version – and arguably the best yet – providing clout to frontline social workers and clarity to foster carers.
An attempt has been made to create a holistic and unified legal blueprint for the protection of abused children. But the law-to-be requires an apparatus that will take much effort before social workers will be able to wield the conferred powers effectively and efficiently.
The great news is that social workers will finally get the clout they have long sought. A refrain within Aġenzija Appoġġ has been that their ability to intervene in instances of child abuse has been limited, and their range of actions has been narrow.
This law will dramatically change that: the director (of protection of minors) will be empowered to intervene muscularly, to enter any household and conduct investigations, and to impose ‘social contracts’ or treatment programmes. These care plans are a powerful home-based remedy – parents can even be ordered to undertake psychological counselling, parental skills lessons or treatment for substance abuse, and children can be offered psychological therapy. And they can innovatively involve the extended family.
Another innovation is ‘mandatory reporting’: the obligation of professionals in contact with children (doctors, teachers, psychologists, and so on) to report any child abuse that they become aware of. These professionals are liable to a fine and imprisonment if they omit to make reports.
This obligation is somewhat controversial, and according to Daniela Azzopardi Bonanno, a lawyer who specialises in family and child law and drafted an earlier version of the bill, the bar of guilt of omission of reporting has been raised. The latest version suggests that a professional would only be guilty of omission to report if the occurrence of child abuse constituted a criminal offence.
I agree with Dr Azzopardi Bonanno on decoupling abuse and criminal offence, and reinstating an earlier version of this clause: that reporting has to be an obligation in the event that a professional becomes cognisant of a child being ‘at risk of significant harm’ through abuse, irrespective of whether the form and seriousness of abuse ‘constitutes a criminal offence’. That’s because not all abuse bears a criminal liability – certain grades of ‘neglect’ are not criminal; alcoholic consumption during pregnancy is also not necessarily criminal despite the ‘significant harm’ to foetus.
The onus should not be on professionals to figure out which forms and grades of abuse pass the threshold into criminality. It would be better to cast the net wider and then let Aġenzija Appoġġ decide what constitutes abuse of ‘significant harm’. And although this might lead to rife reporting initially, over-reporting would serve the educational component of the law.
For a law of this kind is a blueprint that has the potential to take protection from abuse to the next level, and mandatory reporting will involve professionals who come into contact with children in the community as part of the wider effort to eliminate abuse. In this sense, mandatory reporting in a wider form, as suggested by Dr Azzopardi Bonanno (who did her thesis on mandatory reporting), will serve to foster debate and awareness of child abuse in all its forms and graduations.
The reach of the bill as drafted, although largely a good piece of legislation… depends on other legal tweakings and much capacity building
Of course, training is essential, especially when it comes to the pernicious, impalpable forms of abuse, particularly psychological abuse. The under-appreciation of psychological abuse can be exemplified by a case I know of in which a headmaster, upon being told of a case where social workers and psychologists maintained that a child was being psychologically abused, responded by saying that that was not necessarily a bad thing because it might serve to make the child a stronger person in adulthood.
The headmaster’s take resonates in wider society: psychological abuse is underappreciated at every strata, including the courts.
The obligation to get the court to endorse the issuance of protection orders might turn out to be another weak point. This is because magistrates generally are untrained in the area of child abuse, which is a vast and ever-growing specialisation of science and law, and resorting to the duty magistrate is like asking builders to design and construct a house – they can get the job done, but all of us would rather have an architect design the house.
Protection orders should ideally be decided by the Juvenile Court, where the serving magistrate has accrued expertise in matters of child abuse, but this is where the limitations of institutional capacity fall short of the ambitions of the law: the Juvenile Court should be staffed with two magistrates so that one can be on call at any one time. These shortcomings are even more glaring in Gozo, which is already something of a blind spot when it comes to coverage by Aġenzija Appoġġ, and where magistrates in the Family Court are not as well trained as their counterparts in Malta.
Another potential complication is how the provisions of the protection of minors law will interact with proceedings of marital separations in the family courts. On the one hand the law-to-be offers an alternative instrument of redress to parents genuinely concerned that their children are being abused by the other parent; on the other hand it provides another temptation for a parent who wants to bandy false or exaggerated allegations of abuse.
And in such cases, if Aġenzija Appoġġ issues a treatment or care plan, how would that play out in the custody battle? Would it be brought as evidence against the faulty parent, hence intensifying the court battle and serving as a disincentive to cooperative, post-separation parenting? Would the child be assigned to the other parent, and which court will make that decision – the Juvenile Court, the Family Court or the generic court?
There is no mention, much less clarity, about these potential complications. And in this sense the promulgation of the protection of minors act makes an update of the marital separation law a necessity.
At the very least, treatment orders or care plans should also be concurrently enshrined in the separation law, thus bringing the two laws in consonance and clearly demarcating the authority for imposition of care plans. (Moreover, false allegations of abuse should be discouraged by introducing specific sanctions in the separation law.)
All of this shows that the reach of the bill as drafted, although largely a good piece of legislation that will bring us up to par with the more advanced countries in the EU, depends on other legal tweakings and much capacity building. Much investment will be required, and the perennial shortage of experienced, qualified social workers has to be addressed more holistically.
In fact, the task of institutional capacity building should begin even before the bill is made into law.
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