While many parents undergoing separation proceedings are able to rise above the emotion, anger and resentment that could have developed over the course of the relationship and put the best interests and needs of the children ahead of their own needs, there are an equal number of parents who, unfortunately, cannot see past their own needs.

More often than not, these parents end up using their children as pawns in separation proceedings to hurt the other parent or gain an advantage in the litigation.

The role of the child advocate guarantees representation of the child in court. This way, the child’s best interests are safeguarded by an independent person, whose mandate is concerned with the child, not the parents.

The process undertaken by the child advocate is quite straightforward. The child advocate will normally hold one meeting with the child and he or she would then prepare a report, which is accessible to the judge but not to the parents or their lawyers.

This oddity is many times questioned on the basis of the allegation that there is a fundamental human right breach. The argument is that the Civil Court (Family Section) would take important family decisions, such as those on custody and visitation issues, on the basis of the child advocate’s report – a report which the parties to the suit cannot read. This means that the parties would be faced with the decision of the court that refers to a report and conclusion which they cannot see.

In a way, in practice, it could be said that the child advocate has a dual role − on one hand, advocating and protecting the child, giving them a voice in the proceedings and promote their best interest, and on the other hand, as a court expert of substantial influence on the case at hand. This conflicting dual role is more often than not causing more complications rather than solutions, especially when dealing with cases of parental aliena­tion. If the child’s preference has been unduly influenced by others, especially a parent, the child is unable to reflect on his own judgement.

The role and functions of the child advocate were dealt with and considered in great detail in a decision delivered by Mr Justice Robert G. Mangion in the constitutional reference ‘AB vs CD’, decided on June 30.

If the child’s preference has been unduly influenced by others, especially a parent, the child is unable to reflect on his own judgement

The facts of the case are as follows:

In 2018, the mother of the children filed an application in the Civil Court (Family Section) requesting the suspension of the father’s visitation rights to the children. Without ordering that the application is to be served to the father, so that he could reply, the court appointed a child advocate to prepare a report. Based on the report prepared by the child advocate, the court ordered the termination of the father’s visitation rights to his children.

In this regard it was emphasised that the father was never aware that the mother had made such a request to the Civil Court (Family Section). Additionally, it was stated that the report of the child advocate was sealed and the parties did not have the opportunity to read it.

Soon after, the father filed an application to contest the decree that terminated his visi­tation rights and requested to be given a copy of the report prepared by the child advocate.

The Civil Court (Family Section) denied his request.

The father proceeded to request the Civil Court (Family Section) to refer the matter to the First Hall, Civil Court, in its constitutional jurisdiction, complaining that due to the procedure adopted by the Civil Court (Family Section), by which his visitation rights were suspended, his rights to a fair trial and right to family life had been breached.

In its decision, the Civil Court, First Hall, in its constitutional jurisdiction, went into great detail to explain the function and role of the child advocate.

It was explained that the legis­lator’s intention on the creation of the role of the child advocate in judicial proceedings was to safeguard the interest of the children. The legislator thought that such interests of the children would be better safeguarded if a lawyer represented the said children – a lawyer not representing the father or the mother – but as the name itself suggest, a lawyer safeguarding solely the interest and the rights of the children.

The court, however, criticised the dual role that the child advocate is being expected to serve in separation proceedings where, on the one hand, he is expected to act as a court expert and, on the other hand, he is to represent the minor’s interest in an objective and independent manner before the Civil Court (Family Section).

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The court concluded that the father’s rights to a fair hearing were indeed breached when the Civil Court (Family Section) terminated his access to his children without giving him an opportunity to participate in the proceedings and without even giving him the opportunity to analyse the report prepared by the child advocate.

The court held that as long as the child advocate is treated as a court expert and as long as he prepares reports and files them in court, then all parties to the case should have an opportunity to see and evaluate the report exhibited in court by the child advocate and to contest the findings.

Both parties to the suit may appeal from this decision.

The names of the parties have been removed in order to protect their identity and the identity of the minors involved.

Graziella Cricchiola is a junior associate at Azzopardi, Borg & Abela Advocates.

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