Next week, a Court is to determine whether a 10-year-old British girl is to remain with her father and step-mother or return to a mother she barely knows, in a case which raises concerns about whether children’s rights are adequately safeguarded.

The Office of the Commissioner for Children is arguing that the lack of a guaranteed children’s advocate or the ability of children to request one is a particularly serious shortcoming, a concern largely echoed by the Labour Party in opposition. The Family Ministry, meanwhile, stresses that children are already admissible as witnesses, regardless of age, although it also points out that, once implemented, the Draft National Children’s Policy would strengthen their rights in court.

The Ella Bridge case

Ella Bridge is the daughter of Richard and his former wife Nicki Lee, who, according to her ex-husband, walked out on her family and refused attempts to keep in touch with her daughter.

Mr Bridge subsequently began a new relationship with Julia Dyson (now Dyson-Bridge), whose son Elliott is Ella’s age. The couple, now husband and wife, decided to move to Malta in September 2010 after Mr Bridge’s divorce was finalised.

But soon after the move, Ms Lee initiated proceedings against her former husband for taking their daughter outside the UK without her consent. As joint custodian, her consent was required before Mr Bridge left the UK with his daughter under the Hague Convention on parental responsibility and protection of children.

Ms Lee also pressed charges of international child abduction, and obtained a court order making Ella a ward of court. In Malta, the Family Court ruled that Ella should return to the UK, a decision which would, if carried out, effectively place Ella in her mother’s care.

Mr Bridge was prevented from appealing against the judgement after missing the deadline by just two days, and he filed a constitutional application through lawyer Aron Mifsud Bonnici. He also sought and obtained a court order last Monday to allow his daughter to remain in Malta while the court case is pending.

In the constitutional application, Mr Bridge argues that his daughter’s right to a fair hearing, as well as her right to a family and to a family life, had been breached. He also argued that his daughter had not been given an adequate opportunity to express her wishes.

In a Facebook group called “Let Ella Bridge have her day in court,” Ms Dyson-Bridge points out that the Maltese authorities and Ms Lee “have not tried to prepare Ella for any return to the UK; she’s received no counselling, no explanation, no welfare assessment, they literally are trying to turn up and drag this little girl away from her family.

“They call it intervention. I call it emotional child abuse,” she adds.

Legal concerns

Ms Dyson-Bridge’s statement raises concerns about children’s rights in court cases that could ultimately have an enormous impact on their life.

When contacted, a Family Ministry spokesman quotes the Code of Organisation and Civil Procedure to note that people of all ages – including children – are admissible as witnesses as long as they are considered to be of sound mind.

Article 564 of the Code specifically states that “whatever may be the age of a witness whom it is intended to produce, he is admissible as such, provided that he understands that it is wrong to give false testimony”.

The Code also provides for the additional protection of children in judicial proceedings, giving them the right to be represented and to appear in the proceedings as plaintiff or respondent, the spokesman observes. It also provides for a curator ad litem to be appointed to act in the child’s best interests.

But the spokesman also notes that in issues related to parental authority and decisions that affect the best interests of the child, the Civil Court is only bound to hear the children concerned if they have reached the age of 14.

In her own comments to this newspaper, the Opposition’s spokesman for children and the family, family lawyer Justyne Caruana, argues that existing legislation is ultimately scant when it came to allowing children to be heard in court.

“Although sometimes children are heard very briefly, this is not covered by a legal provision but is subject to discretion. There is no automatic right and children have no locus standi in court,” Dr Caruana observes.

According to the MP, by failing to guarantee this right, Malta actually falls short of meeting international obligations.

“The UN Convention (on the Rights of the Child) is very clear about this and if the child is not being heard, her rights are being breached,” she maintains.

“The problem is that unless the convention is part of our legal system, it cannot be invoked in our courts. The convention itself also stipulates a procedure and mechanism whereby breaches of the convention can be brought to trial. However, since locally children have no access to courts, there is a legal impediment.”

Dr Caruana has repeatedly argued that the Children’s Act, which has long been in the pipeline, should be enacted as soon as possible, and she maintains that Ella’s case shows the need for it.

“We go to schools telling children that they have rights and when they need to invoke their rights they cannot – and this is an anti-climax leading to frustration and delusion. Children are suffering from all this and Ella’s case is one in point,” she remarks.

Dr Caruana also notes that the Family Court can appoint a children’s advocate to represent any minor children of the spouses if it deems it appropriate but, once again, only at the court’s discretion. In his court case, Mr Bridge had asked the Court to nominate a child’s advocate for his daughter, but the request was rejected.

The Office of the Commissioner for Children argues that the fact that children are not automatically supported by a children’s advocate and are not able to themselves ask to be represented by one is actually the most serious shortcoming in Maltese law, as far as children’s rights in court are concerned.

The basic principle that should be adhered to, according to the Office, is that “justice should always be child-friendly” by always being “sensitive to the inherent and special vulnerability of children and mindful of the viewpoint of children involved in court cases”.

By and large, the spokesman said, the law courts are designed to respect children’s vulnerability, but some changes could still be made to ensure that this respect is maximised, specifically mentioning the need to raise the age threshold for criminal cases to be heard in the Juvenile Court to 17 along with the need to strengthen legislation on children’s advocates.

“The role of a child advocate is crucial for the protection of the rights and interests of children. More so, children must always be encouraged and empowered to stand up for their rights in any situation, since adults are not always sensitive and aware of what children feel, think and want. This means that all children should be given the right at law to decide independently whether to be represented by a child advocate. At the same time, they should be provided with the necessary practical and psychological support, according to their level of maturity, to make the best possible decision for themselves,” a spokesman for the office told this newspaper.

The spokesman did welcome the fact that the Draft National Children’s Policy “strongly suggests” a move in this direction.

The Family Ministry spokesman also referred to the draft policy, on which consultation was concluded recently, to explain what improvements are expected in the future. These include bestowing the right of children to be heard in matters concerning them to all children, irrespective of age, strengthening the present child advocates structure, and increasing collaboration between Aġenzija Appoġġ and the Court in matters related to the participation of children.

Ella’s day in court

In the meantime, Ella’s family received some good news on Thursday, when Mr Justice Joseph Azzopardi ruled that he would be hearing her personally in his chambers next Wednesday. A judgment is expected the following Friday.

Ahead of Thursday’s ruling, Ella made her wishes clear when her family was interviewed by inewsmalta.com.

“I would like to state to them that I want to live in Malta with my family, because there’s no point in going to England with Nicki. I don’t know her, there’s no point,” she maintained.

Her wish to be able to tell the court just what she wants may have been granted, but only at the discretion of the ruling judge. However, it remains to be seen how long it will be before other children in her situation are guaranteed the ability to speak for themselves.

Father mulls children’s right’s action group in case’s wake

Once the court case is wrapped up, Ella’s father Richard Bridge says he will consider setting up a children’s rights action group with a view to helping other families and children, and to help children gain access to lawyers and fairer treatment from the justice system. Children, he argues, need to have an independent assessment of their welfare, their needs and their wishes from day one of any court proceedings.

Speaking to this newspaper, he explains: “My main concern with children’s rights and the justice system is that in Malta children do not have access to the courts through their own independent advocate. Instead, if they are involved in a process in which they have to ask the Judge to appoint a child advocate. In my case we have asked twice and have been refused twice!

“This is in contradiction to the rights set out in the UNCRC (United Nations Conference on the Rights of the Child), European Charter of Fundamental Rights and various other papers and recommendations from the Council of Europe on Child-Friendly Justice. Why can my daughter not have her own lawyer?

“Another failing of the justice system here is that the welfare/best interests of the child should be paramount. I would have liked to have had Appogg involved from the very beginning of my case so that an independent child-friendly team could have spoken with Ella to find out what she wants, how she is and if there is anything that she needs. Again, I have asked for a welfare report and it has been refused. Why can’t my daughter get help from Social Services?

“It seems that Malta does have ways of ‘allowing’ children their rights that are enshrined in international and European law, but that children don’t have ‘automatic’ access to their rights unless a judge says that the child can have them, unlike in the UK where they are automatic during divorce, domestic abuse, adoption, child abduction and other similar types of cases. In my opinion, this is not fair.

“In my case involving a child, CAFCASS (the Children and Family Court Advisory and Support Service: www.cafcass.gov.uk) would be automatically involved to gauge the wellbeing of any child that might be affected.

“CAFCASS would then assess the situation, make sure that the children had access to all the services that they needed and make recommendations independently to the court on what the best situation for the child would be.

“Also, in the UK, a child can approach a solicitor and ask for help. Public funding is available for cases instigated by children and it means that children have free access to justice. For example, if a child wants to start action against a parent they can go and see a lawyer.

“Malta is a wonderful place to live in but when it comes to children’s rights, it is very much out of date. The worrying thing is that Malta has signed the UNCRC but it doesn’t seem to be to be implementing its measures.

“Once my case with Ella is over, I intend to find out who I need to approach to get the changes made. I am considering starting a children’s rights action group to follow up on my court case and see if I can get changes made for other families and children – not just in ‘abduction’ cases but any case involving a child. Children need access to lawyers, help from agencies like Appogg and access to justice in their own independent right.”