The Malta Independent 4 October 2022, Tuesday
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What exactly constitutes the best interests of a child?

Sunday, 23 February 2020, 09:11 Last update: about 4 years ago

Lynn Faure Chircop

A claim by an adult alleging to have fallen victim to domestic violence has a direct impact on the children of the claimant. 

When such children are under the age of 18, they are considered as minors to all intents and purposes of the law, which means that legal and protective measures are automatically set in motion, generally instituted ex officio by the competent authorities in cases where the safety and well-being of the minor/s are being threatened. 

The constitution of a threat has been broadly debated by members of the public in general, whose opinions on social media may have raised readers’ eyebrows or instigated further discussion. It has not yet, however, provided a remedy for the parties concerned – such as the accused parent, who was declared innocent before the criminal court awaiting the conclusion of prolonged pending civil proceedings – nor answers to the queries that follow: 

1) If the Police fail to provide the required evidence in court, is the Judiciary expected to act creatively and issue an order based on a risk assessment that is biased and a mere reflection of the statements given by the alleged victim?

2) If no legal evidence is presented to the Judiciary presiding in a criminal setting, who would have interpreted the disputed act as a mere dissent or disapproval of the accused parent towards his partner as a consequence of the alleged victim’s persistent drinking habit in the presence of their children, is it lawful to file another application – this time before the Civil Court (Family Section) on the basis of the same allegations which were dismissed by the Judge in the criminal court due to a lack of evidence? 

3) Is an allegation of domestic violence enough to evict the accused parent from his/her own house, for months if not years, until he/she is proven innocent?

4) Why is a protection order interpreted by some NGOs and organisations as giving the alleged victim a green card to expose the children of the accused parent on social media as victims of domestic violence? 

5) What proof of fault on the part of a parent in relation to the children would be required to keep a parent away from his/her own children while the other parent – playing the victim card – is still living in the jointly-owned house?

6) Why is an alleged victim of domestic violence allowed to change partners and bring strangers to the house co-owned by the accused parent while the children are still in the custody of the alleged victim and the prolonged legal proceedings would have been instituted merely on the basis of a statement by the alleged victim?

7) As a consequence, are the children not being unreasonably separated from the accused parent, especially when reports by experts in the social field are drawn to confirm such an injustice and discrimination on the part of the accused parent? 

8) What kind of assessments are being carried out by organisations, including NGOs, to conclude that the person reaching out is, in fact, a victim and not a person seeking attention for ulterior motives?

9) How do the authorities protect the children of the parties in a dispute, who struggle to understand the kind of help they require and, when they do, an effective remedy in the best interests of their children does not seem to be the solution? 

I can relate to the frustration of some professionals working in the social field when they are faced with similar queries, especially when they have exhausted all available means and, in the process, their common-sense has been challenged by the system and the mentality adopted to provide a solution.

What strikes me is the kind of feedback given to the accused parent by those who do not understand the ambiguity of the matter or, rather, are comfortable being stuck in a system that does not address the reality and the best interests of minors caught in the unfortunate position of having to choose between the lesser of two injurious scenarios: on the one hand having an alleged victim/parent and on the other an accused parent claiming ‘not guilty’ in an unresolved dispute.

The system does not seem to care that today’s children will be the next parent generation and the burden to care for all children concerned will fall upon the Government yet again.

In the light of recent incidents, many professionals and public officers – along with the general public – have been motivated to express their opinion about this vicious cycle of unresolved claims of domestic violence.

It is about time that competence meets the required change in mentality and the necessary decisions are taken in a timely manner for the principle of ‘the best interests of the child’ to be given primary consideration at all times and in practical terms. 

 

Dr Lynn Faure Chircop specialises in child protection and is an advocate for children's rights

 

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