Judge calls for changes to law that allows children’s lawyer to also be court expert

Court urges legislator to address anomaly in Child's Advocate conflicting dual role as lawyer for minors and court expert in same cases

A court has urged the legislator to address a legal anomaly in the conflicting dual role of the Child’s Advocate as both lawyer for minors and a court expert in the same cases.

In a judgement handed down on Tuesday Mr Justice Robert Mangion, deciding a Constitutional reference made by the plaintiff in the course of proceedings before the Civil Court (Family Section) found that the plaintiff’s right to a fair hearing had been breached in 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.

The judge also highlighted anomalies in the role of the Child’s Advocate.

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 usually sealed by the Family Court to protect the minors involved.

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

Previously, in October 2018, the mother of the children had filed an application requesting the suspension of the father’s access to, and any contact by any means whatsoever with, the children. A Child’s Advocate was appointed to hear the children and prepare a report for the Court about the findings.

The Court subsequently terminated all contact between the father and the couple’s children. The father was prohibited from having any physical or electronic access to the children.

But because the plaintiff was not aware of the application before the decision, he could not reply to it. To make matters worse, the Family Court had ordered that the report prepared by the Child’s Advocate be sealed and not made available to the parties.

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

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

In his decision on the matter, 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 had been breached.

The judge held that there was a lack of legislative regulation regarding the Child’s Advocate’s dual, often conflicting functions, which needs to be re-evaluated. The Court considered that the Child’s Advocate role at law is that of representing the interests of the parties’ minor children as a lawyer but that in practice, a Child’s Advocate is treated by the Court in a manner more akin to a court expert to the extent that instead of submissions, Child’s Advocates file report that the Family Court more often than not seals to protect the minors. The Court observed that as a consequence of this, the Family Court very often hands down decisions relating to children based on reports which the parties never had an opportunity to evaluate or contest.

The Court considered that in practice Child’s Advocates have found themselves playing conflicting roles, that of a lawyer for the children, and that of a court expert, and held that this situation needs to be remedied with urgency since it is especially prejudicial in cases involving parental alienation, where these two roles become irreconcilable.

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, pointing out that the conflicting roles of the Child’s Advocate become irreconcilable in such cases.

The Court ruled that if the Child’s Advocate is being 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 these findings.

Lawyer Robert Thake appeared for the plaintiff.

Lawyer Jonathan Spiteri appeared for the defendant.

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