Constitutional Court is not for appeals but to ensure fair hearings

In a judgement delivered on 8 August 2013 in the First Hall of the Civil Court, in its Constitutional jurisdiction, Mr Justice Tonio Mallia, in Charmaine Farrugia and Jimmy Sacco v. The Minister for Family Affairs and Social Solidarity and the Director of the Department of Social Welfare and the Attorney General, decided that a constitutional action should not be used to appeal a judicial and administrative decision.

Farrugia is the mother of two children, and Sacco is the father of one of them. On 8 March 2013, a care order for both children was issued. This followed an accident in which one of the children fell from his bed and suffered serious head injuries.

Farrugia and Sacco formally objected to these care orders, and on 9 April 2013 they were examined by the Magistrates' Court. The Magistrate ruled in favour of the care orders, however the applicants claimed that the Magistrate had offered no reason and that, in essence, there was no need for the care orders. They alleged that the orders breached their fundamental human rights for private and family life, as enshrined in the Article 8 of the European Convention on the Protection of Human Rights. They also complained that the orders breached Article 6(1) of the Convention, which allows for an impartial and independent revision of the minister's order. The applicants asked the court to order the removal of the care orders on the grounds of anti-constitutionality.

The Respondents replied that this action was filed before, the Minister could review the care orders and that the fact that the applicants did not agree with the care orders, the constitutional court was not the correct forum. The Government entities held that the Children and Young Persons (Care Orders) Act and its subsidiary legislation allows for an adequate procedure for one to object to care orders. Once a care order is issued frequent case reviews not only on the children but also on the parents.

The Court kicked off with its motivation for the judgment, saying that the Constitutional Court cannot be used for an appeal. It is not competent to review the merits of the care orders, but to examine whether the applicants had a fair hearing. The care orders themselves had been examined by the competent court. The court stated that the applicants could not expect the care orders to be re-examined until someone agreed that the orders were unjust. What the law allows is for the competent court to examine claims impartially and independently and for a just procedure. The court pointed out that in the case of care orders, there is an effective remedy for those involved. This is what Article 13 of the European Convention on the Protection of Human Rights requires. In this particular case, when the parents of the children objected verbally, it was brought before the competent court with urgency. The Magistrates' Court has wide powers to give a remedy, if such remedy is required. Therefore, it is clear there was no breach of Article 13.

In the future, if the applicants were to ask for a review of the care orders every six months before a Consultative Board on Children and Youths, they would be invited to attend the board meetings. Farrugia and Sacco also have supervised access to their children in foster care. The whole procedure is not intended to deprive the children of their parents, but to protect them. The care orders are issued in the children's interest. The procedure allows the parents to reintegrate as parents to their children.

Furthermore, there is a judicial remedy to challenge the minister's decision, and this is found in Article 469A of the Code of Organisation and Civil Procedure. It provides for a judicial review, where the court may investigate an administrative decision. The court will not substitute the minister's discretion, however it will examine the circumstances under which that decision was taken and may revoke it. Therefore, there exists an effective remedy for the applicants.

The court rejected the claim that the applicants did not have a fair hearing, as protected in Article 6 of the Convention. The court pointed out that the Magistrates' Court had held a three-hour sitting, which the applicants had attended (assisted by a lawyer). Their witnesses were heard and submissions were presented.

The court then rejected the parents' application.

Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates