Incorrectly issued care order breaches right to fair hearing, argues mother

A mother who is objecting to a care order being issued over her children has filed Constitutional proceedings, arguing that the order was issued incorrectly and therefore, invalid.

In a court application to the First Hall of the Civil Court in its Constitutional jurisdiction, the mother of two children aged 3 and 5, says that her objections to the care order that had been issued in June had been overruled by the Court of Magistrates the month after.

During the course of those proceedings, the woman's lawyers had raised a Constitutional objection, claiming her right to a fair hearing had been breached, but this had been dismissed by the court of Magistrates on August 10th.

The mother's lawyers Charlon Gouder, David Camilleri and Joseph Gatt, are arguing that the law, in article 3 of Legal Notice 49 of 1985, stipulates that care orders can only be issued after the minister or a formally delegated representative of his hears the mother's arguments, but that in this case the delegate was not properly appointed.

The Minister fulfills a quasi-judicial function in this role, argue the lawyers, because the only way of questioning this decision is through court proceedings. This implies that the Minister should guarantee a fair hearing.

“This procedural shortcoming is grave enough to lead to a breach of Article 39 of the Constitution and Article 6 of the European Convention for the protection of Human Rights and Fundamental Freedoms.”