A father was declared to have suffered a breach of rights, after he was abruptly deprived of all contact with his minor children through a decree, based upon a Children’s Advocate report, drawn up before notice of the mother’s request had reached the father.
The issue arose in the course of an acrimonious custody battle between an estranged couple, with a Children’s Advocate being appointed by the Family Court in March 2018 “to speak to the minors and report to the Court about the father’s access.”
Two months later, the Children’s Advocate reported that the minors were to have “free and wide access to the father.”
The Court decreed accordingly, subsequently specifying the dates and times when such access rights were to be exercised.
One week later, the mother filed an urgent application calling for those terms to be varied in line with her work roster, limiting electronic communication to half an hour in the evening.
Two months later, the mother filed another application calling for all contact by the father with the couple’s children to be suspended.
Yet before that request had even been notified to the father, the Children’s Advocate filed a report on the strength of which the Family Court ordered “that the father was to have no form of access to his minor children,” both physical and by electronic means.
The report was then sealed by the Court, making it inaccessible to the parties.
The father’s request for access to the contents of that report as well as for an opportunity to question the Children’s Advocate, was turned down by the Family Court, leaving the applicant with no option but to take his grievance before the constitutional courts.
That reference resulted in a judgment which not only declared that the father’s right to a fair hearing had been breached, but also appealed to competent authorities to address the anomalous and conflicting role of the Children’s Advocate.
The original role of this court-appointed warranted lawyer was to ensure that in judicial proceedings involving minors, the best interests of children would be adequately represented by a lawyer, who was not assisting either parent.
Such representation was to be done in an “objective and independent manner.”
However, the Children’s Advocate eventually also assumed the role of court expert, reporting to the Court on confidential information divulged by the minors.
Hence, the practice of sealing such reports, rendering them inaccessible even to the parents.
The First Hall, Civil Court in its constitutional jurisdiction, presided over by Mr Justice Robert Mangion, observed that in the absence of clear legislative guidance, such dual-role of the Children’s Advocate was giving rise to procedural confusion, made worse when parental alienation was at play.
That was when the various functions of the Children’s Advocate could not be “reconciled,” said the Court, suggesting that rather than file a report, the Advocate ought to make submissions like any other lawyer, bound by client confidentiality.
In this case, the father had not been notified about the mother’s request when all access was stopped indefinitely by the court and there was nothing to indicate that the Court could possibly revise its position at a later stage.
Moreover, the fact that the brief decree lacked “any motivation or explanation as to what led the Court to such a drastic decision,” further breached the man’s rights, said Mr Justice Mangion, adding that such considerations by the court were to be stated clearly, even if not at great length.
The fact that the father could not access the report nor question the person who wrote it, furthered breached his rights, said the Court, observing further that decrees related to the care and custody of minors, pending proceedings before the Family Court, called for greater attention to the principle of fair hearing.
The Court thus referred the case back to the Family Court, pointing out an “urgent need” for the role of Children’s Advocate to be addressed so as to protect the interests of the children, whilst safeguarding the fundamental rights of the parties.
Lawyer Robert Thake assisted the father. Lawyer Jonathan Spiteri assisted the mother.
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