Are Minors Being Properly Heard?
This is a question which begs a multitude of other questions as well as several opinions which at times can be diametrically opposed. The question, 'Are minors being properly heard' implies that minors are already being heard, which in the case of Maltese courts, this is the case to a certain extent. Minors can be heard at the discretion of the Court and there is no age limit for children to be heard.
However, are minors properly heard? That is, are minors' voices and thoughts being effectively heard?
Over the years children were heard either by the Judge or the Child Advocate. If they were heard by the Judge, a report would not be given to the parties on what the children said. Therefore, although the children would have been heard, the parties would not know what they said. From one end this is done to protect the children's privacy and confidentiality, but on the other hand, if one takes into consideration custody issues, it is imperative that the parties know what the children would have said. With respect to the Child Advocate, the Child Advocate draws up a report which is available to the parties unless ordered not to be by the Court. Sometimes the Child Advocate speaks to the parents as well - that is where I have an issue with, since the parties are spoken not in the presence of their lawyers and sometimes the stronger party puts forward a stronger case in his/her favour.
However, now, the role of the Child Advocate has been drastically changed by a new amendment which came into force at the end of August 2020. It is very new and is yet to be tested. The role of the Child Advocate seems to be now more akin to that of a guardian ad litem, where the Child Advocate will represent the child in court and where it will put forward submissions in favour of the child. It still seems unclear who will ask for a Child Advocate to be so appointed - whether it is automatic or whether it is on request of one of the parties. Moreover, when it comes to alienated children, such children would be perpetuating the narrative of the alienating parent and the Child Advocate would run the risk of putting forward submissions in favour of the child which would be echoing the submissions of the alienating parent and this to the detriment of the alienated parent. Therefore, caution should be exercised in these cases, making sure that the children are truly heard and one should avoid a situation where the children's voice is used as a corroborative voice to the alienating parent.
Article written by Dr Ann Marie Mangion.