Custody rights of grandparents over their children : the position of the minor protection (Alternative Care) Act (2020)

Abstract

Locally, the protection of minors is primarily afforded by the Minor Protection (Alternative Care) Act, Chapter 602, of the Laws of Malta, however, it falls short from granting custodial and access rights to close family members, particularly grandparents, for those minors who are deprived or risk of being deprived of parental authority. Having clear provisions laid down in the legal framework would ease and protect the grandparents-grandchildren relationship. In the absence of clear legal provisions on grandparent rights, custody and access to grandchildren is to be based on “the best interest of the child”, a concept first introduced by the United Nations Convention on the Rights of the Child (UNCRC). In this context, several local and foreign court judgments, will show that in the absence of clear legal provisions, custody and access rights are determined on a case-by-case basis, however, this always in the best interest of the child and they will impose the necessary protective measures accordingly. This research highlights amongst others, the role of grandparents, the best interest of the child, and child participation in court proceedings. It evaluates and discusses provisions laid down in Chapter 602 of the Laws of Malta and Bill No. 36 amending the latter Act and also assesses the extent to which grandparents have right of access to their grandchildren, the rights and obligations of grandparents and comparing them with those established and implemented in foreign jurisdictions. Finally, the study proposes way forwards on how the situation can be improved.