The Malta Independent 7 December 2022, Wednesday
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A Father’s Day message to parents, public officers and politicians

Sunday, 19 June 2022, 07:58 Last update: about 7 months ago

Dr Lynn Faure Chircop

Let’s TALK about Parental Responsibilities rather than Parental Authority

Let’s LEAD our children by example.

Let’s TEACH our children ‘Two wrongs can never make a right’

Let’s RESOLVE conflicts rather than create them.

Let’s be the CHANGE we want to see in our broken relationships

Let’s RESPECT the fundamental rights of the others

Let’s LOVE our children unconditionally

Let’s FOCUS PRIMARILY on our children’s future and wellbeing

Let’s PROVIDE our children with the proper legal Standing

Let’s ENCOURAGE our government to sustain a child-friendly justice

Let’s SPEND our money to take action to protect our children

Let’s STOP any form of abuse

Let’s ENSURE inclusivity and CELEBRATE diversity

Let’s STAY safe and KEEP our children healthy

Let’s PROTECT our children online

Let’s AGREE to DISAGREE

Let’s SPREAD our democratic values

Let’s MAKE stronger laws that support children in the judicial system

Let’s PRACTISE what we preach

Let’s ENFORCE the rights of children

Let’s SAVE the life of children

Let’s SHARE best practices

Let’s CONVINCE politicians to put their money where their mouth is

LET THE LAW RULE

 

 

 

Human Rights must be enjoyed by “everyone”. I’m sure you heard this kind of rethoric already!

In essence, the protection of the enjoyment of all the fundamental Rights and Freedoms does not only apply to men and women but also to men and women of all ages. The provisions of the Convention have been drafted in a form which requires national judicial systems to interpret and apply them effectively and in a practical manner.  

What does this really mean?

As the daughter of Philip Chircop, a tireless activist for human rights and champion for grandparents, I feel duty bound on Father’s day to advocate in favour of the necessary efforts to protect the family ties between both parents and their children, grandparents and their grandchildren, siblings and the close relations with other family members when these prove to be in the child’s best interests. My father campaigned all his life to numerous causes which politicians and NGOs have taken up thanks to his initiative. In this respect he has set an unprecedented example in our family and thanks to him we all know what it takes to be bound by principles. The least I can say today is a HAPPY FATHER’S DAY TO MY SUPER HERO!

As I continue to practise my passion for human rights, I dedicate most of my time on research in the course of offering legal advice to my fellow humans.

Through case laws of the European Court of Human Rights we learn that a complaint submitted to the European Court of Human Rights must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits.

However, we also learn that the existence of national remedies available must be sufficiently certain not only in theory but in practice.

Surprisingly, the right to family life is not protected under the Constitution of Malta! Indeed, it is placed under the preamble of Chapter IV of the Constitution and considered to be non-justiciable!

On this day dedicated to fatherhood, it is relevant to remind our legislator that everyone’s right for respect to his/her family life must be protected by the Supreme law of Malta, without discrimination.

The European Convention, to which Malta is a state party, offers protection to human beings who have suffered material or moral effects ensuing from a violation of a fundamental human right.

Family life, as protected under Article 8 of the Convention, can be only invoked under an ordinary law, the European Convention Act, Chapter 319 of the Laws of Malta. This means that in Malta, any individual alleging to be a victim of a violation of his/her fundamental human right has double protection at law by virtue of Article 4 of the European Convention Act and Article 46 of the Constitution of Malta, except for the right to respect for family life.

It is an established fact that there is no longer a distinction between marriage-based relationships and other family ties established outside marriage when evidence that the parties are living together and the relationship would have sufficient permanence, is brought to the satisfaction of the Court. The existence or non-existence of family life is essentially a question of fact depending upon the real existence in practice of close personal ties.

Then logic dictates that, coupled with the principle of equality, a thorough assessment must be carried out by all public authorities to ensure that in all activities, the right to respect for family life is mutually enjoyed by parents and their children, irrespective of the process which established the legal recognition of their relationship, especially when the relationship between the parents has broken down.

 

And what about the Convention for the Rights of the Child (CRC)?

Malta has ratified this Convention and by doing so it is committed to undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the CRC. However, to date, the CRC has not been incorporated into domestic law. To this effect, it cannot be invoked before the national judicial system.

Despite that the European Convention does not expressly provide for children’s rights, the Maltese Judicial system is bound not make a distinction between adults and minors when it is concerned with the entitlement of any right falling under its Jurisdiction.

Malta is also bound by the provisions of Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms. The Council of Europe introduced a general prohibition on discrimination, namely, “the enjoyment of any right set forth by law shall be secured without discrimination”.[1] This Protocol has widened the jurisdiction of the European Court of Human Rights to safeguard everyone from discriminatory application of any law.

Malta as a member of the European Union is additionally bound to eliminate any form of discrimination between adults and minors. This translates into the responsibility of the Maltese state to ensure that all decisions, taken by individuals, whether empowered by the private or public institutions legally obliged to care and protect minors, are effectively fulfilling the aim envisaged by the international, regional and national laws enacted to ensure the protection of each child within their jurisdiction without discrimination.

Minors within the European Union are further protected under the article 24 of the Charter of Fundamental Rights of the European Union which expressly provides that “In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration”.

In my advice to fathers seeking to maintain a healthy relationship with their children born in wedlock or out of wedlock is not to give up because every child has the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

I dedicate my last appeal to the Maltese authorities to strengthen its championship in the field of human rights by ratifying the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure which recognises that children have the right to appeal to an international mechanism specific to them when national mechanisms fail to address violations effectively.

You are invited to read more on the national obligations and the recommendations to the national authorities in a Working Paper on the Principle of Equality & the Rights of the Child launched on Father’s Day 2022 to further discuss the implementation of more effective procedures and legal mechanism at national level to safeguard the rights of children and other family members equally. These are available on: https://www.onevoicemalta.com/.  For more information contact Dr Lynn on [email protected]

Any aggrieved individual may first take every possible step to have his human right issue resolved in Malta, first before the First Hall Civil Court, Constitutional Jurisdiction, with a possibility of an appeal before the Constitutional Court. If the remedy sought would not be obtained after exhausting the local remedies, the individual may file an application for the European Court of Human Rights to determine the case and such domestic judicial process would be reviewed by the supra-national European Court of Human Rights.

 

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