Child protection register welcomed, but questions linger about human rights

The recent introduction of a register to protect children from convicted criminals has been welcomed by family lawyers and professionals involved in childcare. But it has also raised a number of legal and human rights issues that have so far not been satisfactorily answered.

The Protection of Minors (Registration) Act came into force last week, after months of dedicated lobbying by concerned parents.

Their concern was motivated and to a degree exacerbated by a number of recent high-profile paedophilia cases: including the conviction of two priests for sexual offences involving minors, as well as the earlier case of a Malta Football Association groundsman who was initially retained in employment despite a prior conviction for child abuse.

However, the resulting law goes far beyond the original scope of protecting children from sexual offences: leaving the law-courts with full discretion to decide whether any convicted criminal may be entered on the register on the basis that he or she poses a potential (as opposed to actual) risk to children.

Theoretically, the resulting list of real or potential offenders is not available for public scrutiny; but the law obliges employers to perform a background assessment of prospective employees, with similar provisos applying also to the voluntary sector.

Effectively this means that the register is in fact accessible, albeit to a limited number of people under specific circumstances. In a small country like Malta, it is unlikely that the contents, divulged, will remain secret for long.

Considering the existence of a widespread misconception that this is a paedophile register, there arises a risk that other categories of offenders will be publicly mistaken for paedophiles, and as such exposed to risk of vendetta and vigilantism through a process of 'naming and shaming'.

Nonetheless, initial responses have so far been favourable. Children's Commission Helen D'Amato argues that the register would be worthwhile even if it prevents a single repeat offence concerning children.

"It is certainly in the best interest of children to prevent individuals who have been convicted of a crime against children from being in a position to inflict further harm on them in the context of paid or voluntary work, which is what the Protection of Minors (Registration) Act does by providing for the setting up a register of offenders against children," D'Amato said.

"Through this law, we are thus taking no chances that an offence against children might repeat itself by the same offender. Even if this law were to prevent just one repeat offence, then it would be worth its while. This is because children are intrinsically vulnerable and as such have special rights, including rights of protection. Like any other law, this law's concrete effectiveness will need to be constantly monitored in order to test and improve such effectiveness."

Elsewhere, concerns have separately been raised regarding human rights. Questions such as how long registered offenders are expected to retained on the list, or whether they are entitled to a re-assessment at any stage, appear to lack any concrete answers.

While agreeing with the overall aims of the legislation, human rights lawyer Dr Therese Comodini Cachia expresses some doubt regarding whether the rights of suspects have also been fully taken into account.

"Rather than the concept of a register, what may offend human rights could be the manner in which that register is administered and the basis on which persons are registered therein and the length of time for which they remain so registered," she said.

"I believe that the starting point in the debate is that the aim of such a register is to make protection of children as effective as possible. The protection of children may allow the State to interfere with the rights of sexual offenders in so far as this is, in my opinion, reasonably required in a society to ensure effective protection of a category of vulnerable persons. While the concept of a sexual offenders' register is seen as an acceptable measure of providing protection to children, this does not mean that those who were found guilty can consequently be divested of all their rights and protection."

One of the issues that may raise concerns, she warns, is whether persons entered into the register are ever allowed the possibility of review.

"Generally, in criminal justice one speaks of an assessment whether the offender poses a risk to society. This requires the establishment of committees to take such a decision vis-à-vis the individual offender.  Such a system usually allows for review of the position vis-à-vis any offender. The retention of offenders on a register for a previously established time, without considering the risk they pose to society and without the possibility of review, may in the future raise questions which can be answered only by assessing the circumstances of each case."