|Posted by Dr. Ann Marie Mangion on January 21, 2018 at 6:05 AM||comments (1)|
"Are minors being properly heard?"
This is a question which begs a multitude of other questions as well as several opinions which at times can be diametrically opposed. The question, 'Are minors being properly heard' implies that minors are already being heard, which in the case of Maltese courts, this is the case. Minors can be heard in camera by the Judge him/herself or through the Child Advocate, who is appointed at the discretion of the Court.
However, are minors properly heard? That is, are minors' voices and thoughts being effectively heard?
One must bear in mind that adults and minors are completely different and need different tools and methods to elicit information from them. Sometimes, adults despite being competent adults, find it difficult to express their thoughts in a coherent manner whilst testify or whilst being cross-examined and this is due to the pressure of being in court. Therefore, if it is difficult for adults, surely it must be doubly difficult for children! One might argue that whereas adults are heard in open court (family courts are private and not open to the public but the hearings take place in front of other lawyers, the deputy registrar, the Judge and court personnel), children are not. If they are heard by the Judge, only the Judge and the deputy registrar will be present and if heard by the Child Advocate only the Child Advocate will be present. No one is doubting the skills of the Court or the Child Advocate but one questions whether one hearing ranging from a few minutes to an hour or so is enough to guage or elicit what the child wants the Court or the Child Advocate to know.
Should hearing be based on more than one hearing and should a minimum time frame be set? Children are not the same, and parents' reactions and impact on children vary from parent to child. Children can also be deeply affected by what is going on through their family thus making the elicitation of information difficult. Sometimes children do not express themselves well saying one thing or agreeing to something when really wanting to say another. Sometimes children are reserved and find it difficult in expressing themselves in unfamiliar environments. Therefore, is the current format serving the purpose of effectively protecting and promoting children's rights to be heard?
There are also people who argue against child involvement in court proceedings equating the hearing of children with child involvement. However, children like adults are already involved. When a family breaks down it does not only affect the adults concerned but it equally affects the children. Adults have a right to be heard so why shouldn't children have a similar right? Indeed, they do and this is enshrined in the Convention on the Rights of the Child. But the Convention's purpose is not to see the application of the right. The application of the right rests with the signatory State. Therefore, the question is, is Malta's application adequate in making sure that children are being properly heard?