The children’s advocate – The children’s voice

In an article, “Children in separation cases ‘crying out’ to be heard’” published in The Times of 4 July, the Commissioner for Children Sonia Camilleri was reported as saying that children are crying out to be heard in separation cases since they do not appear to have any voice pending the separation process of their parents. Furthermore, children are hardly ever asked which parent they wish to reside with, or if they wish to have access to the non-custodian parent.

These statements form part of the many piercing calls that made me realise that many professionals and non-professionals are not aware about the existence of an advocate for children, and the benefits that are being derived from such an appointment.

Way back in May 2001, the White Paper on Family Division – Civil Court recommended the appointment of a lawyer to represent the interests of minors in separation cases (Paragraph 4.34 under the heading ‘Legal Representation of Children’) which recommendation was also accepted in the government report. The White Paper emphasised that “in these cases the lawyer is representing minors who may either not be able to express themselves or are even afraid to do so. The lawyer may also be put in a position where his ‘clients’ express a wish that he conscientiously believes to be wrong for them. These are not easy situations to resolve and the person involved has to be as much a counsellor as a lawyer.”

This recommendation was one giant step forward to make the child’s voice heard.

This recommendation was later formally acknowledged with the implementation of Legal Notice 397 of 2003 the ‘Civil Court (Family Section) The Civil Court (General Jurisdiction Sections) and the Court of Magistrates (Gozo) (Superior Jurisdiction) (Family Section) Regulations 2003. Precisely, article 4 (1) stipulates that a children’s advocate is to represent the interests of any minor children of the parties. This children’s advocate is to be appointed by the court whenever it deems it expedient to do so: a) either of its own motion; b) on the request of the mediator; or c) of either of the spouses. Such appointment can take place both in a consensual or judicial separation, in other words, both during the mediation stage and/or during court proceedings.

After being appointed, the children’s advocate begins by reviewing the court’s file. The advocate may need to contact the lawyers representing the child/ren’s parents, or any psychologists, social workers and psychiatrists who could be already involved in the case, in order to obtain background information and also be aware of the current situation. The next step is to meet with the child/ren engaged in the custody dispute.

The children’s lawyer has several goals to achieve when meeting the child/ren s/he is appointed to represent. These include, among others, getting to know and gaining the confidence of the child/ren; establishing the past and present environment of the child/ren; assessing the child/ren’s needs and preferences; gauging the child/ren’s competence in understanding their situation, maturity, and ability to communicate verbally; explaining the court processes and alternatives; answering questions the child/ren may have; and picking up clues that will help the lawyer understand the child/ren’s wishes and issues that might not have been raised between the parents. At this stage it is extremely important that the children’s advocate recognises the child’s emotional state and feelings towards his parents as this might affect his approach and reactions to his parents. In certain cases, meeting with the child leads to the disclosure of abuse or neglect by a parent that had not been previously reported.

After hearing the children’s wishes, the lawyer draws up a report in which the best interests and wishes of the child/ren in caption are delineated. Afterwards it is up to the children’s lawyer to represent these conclusions either in the meditation proceedings or in court.

At present, there are three advocates designated as children’s advocates in Malta. These lawyers manage to take care of all the cases whenever they are asked to represent the children in custody disputes. This has already been taking place for two years, and in my experience I can safely say that parties today are seeking the help of children’s advocates more often in order to safeguard their children’s wishes and interests.

Unlike some other countries where both a children’s advocate (to represent the wishes of the child) and a guardian ad litem exist (to represent the best interests of the child), the children’s advocates in Malta represent both the best interests of the minor children and their wishes. A balance is then drawn between these two interests in such a manner that both such positions are made known to the parties, mediator or court, as the case may be.

A children’s advocate represents only minors, that is children who are under 18 years of age. Where a lawyer for the children is appointed in cases where the child is of a tender age, the children’s advocate tends to listen to the parents. In such cases it is highly important for the lawyer to hear the parents’ views so as to be able to identify who is most fit to have custody of the child/ren.

For the better function of this office, the Ministry of Justice and Home Affairs has allocated a room in the Family Court building in Valletta where children’s advocates can meet privately with children of parents undergoing custody disputes to listen to their wishes.

One should not forget that the children’s advocate is a lawyer bound by professional secrecy and by confidentiality. It is the duty of the lawyer to point out this fact to the child. Consequently, the children’s advocate cannot divulge any information that the children represented do not want disclosed even to their own parents. Such information would only be relevant to the children’s lawyer in order for him/her to understand who is the fittest parent to be granted the custody of the child/ren.

Today I can state that although some changes have still to be made to the children’s advocate office, it is fully functional, well operated and more sought between the parties in a separation, mediators and by the court itself than during the early stages when the legal notice mentioned earlier came into force. One can safely state that people involved in custody disputes, are becoming more aware of the benefits that can be derived when a lawyer is specifically appointed to represent the interest of child/ren in such cases. However, on the other hand, one is surprised by the number of people, even professionals, who are still ignorant about the existence of this office.

For this reason, it is highly important that professionals and non-professionals are conscious of the benefits gained when a children’s lawyer is appointed. It is through their lawyer that children become active participants in proceedings in which they ought to be the primary concern.

Doctor Tatiane Cassar BA, LL.D, ATEM, is currently one of the three children’s advocates in Malta. She was appointed in 2003.