Court urges authorities to address anomaly of Child Advocate’s role

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A court has urged competent authorities to address the anomaly and conflict in the dual role of the Child’s Advocate in a judgement handed down on Tuesday.

Mr Justice Robert Mangion urged the competent authorities to take the necessary steps to address the dual function of the Child’s Advocate, who acts as a lawyer to the parties’ minors and is a court expert in the same case.

When deciding on a Constitutional reference made by the plaintiff in the course of proceedings before the Civil Court (Family Section) concerning an ongoing case before the Family Court, which includes a dispute relating to the care and custody and access to the children of the parties’ involved, Mr Justice Mangion found that the plaintiff’s right to a fair hearing was breached. He also noted the anomalies and conflicts which arise in the Child’s Advocate role.

The plaintiff – and father of the children – filed an application before the First Hall of the Civil Court in its Constitutional Jurisdiction protesting that he had suffered a violation to his right to a fair hearing and his right to family life, after the Family Court denied him access to the Child’s Advocate report.

Back in October 2018, the mother of the children had filed an application requesting the suspension of the father’s access and any contact by any means whatsoever with the children. A child advocate was subsequently appointed to hear the children and report to the Court about the findings.

The Court subsequently terminated all access and contact between the father. who is the plaintiff. and their children. The father was barred from having physical or electronic access to their children. The plaintiff was not aware of the application before the decision and could not reply to it. The Family Court ordered that the report prepared by the Child’s Advocate be sealed and not made available to the parties.

The plaintiff only found about this application at the end of October 2018. He then filed an application to object to the request made the mother and request access to the Child’s Advocate report. The Family Court turned down his request.

The man proceeded to file an application before the First Hall of the Civil Court in its Constitutional Jurisdiction. He complained that his right to a fair trial and his right to a family life had been breached.

Mr Justice Robert Mangion noted that the plaintiff’s right to a fair hearing had indeed been breached when the Family Court terminated the father’s access to his children without giving him an opportunity to participate in the proceedings and without him being given the opportunity to analyse the Child’s Advocate report. Furthermore, the Court noted that the decision by the other Court had led to the termination of the plaintiff’s relationship with his children.

The Court noted that by denying the plaintiff access to the Child’s Advocate report and because the Family Court had rejected his request to put questions to the Child’s Advocate, the plaintiff’s right to a fair hearing was again breached.

The Court noted that the institution of the Child’s Advocate had a dual conflicting role and could sometimes lead to situations such as the ones in this case. Mr Justice Mangion held that there is a lack of legislative regulation regarding the dual role and this needs to be re-evaluated.

At law, the Child’s Advocate represents the interests of the parties’ minor children as a lawyer. However, in practice the Child’s Advocate is treated like a court expert. Child’s Advocates are asked to draw up reports. These reports are, more often than not, sealed by the Family Court to protect the minors involved.

The judge observed that the Family Court very often hands down decisions which are based on these reports which the parties’ never have access to in order to evaluate or contest the findings.

Mr Justice Mangion held that the situation should be addressed immediately, especially when dealing with cases of ‘parental alienation’, highlighting that the Child’s Advocate conflicting functions become irreconcilable in such cases.

The Court held that as long as the Child’s Advocate is treated as a court expert who files a report and not submissions on behalf of the minors, then the parties should have an opportunity to evaluate the report exhibited in court by the Child’s Advocate and contest the findings.

Lawyer Robert Thake appeared for the plaintiff.

Lawyer Jonathan Spiteri appeared for the defendant.