Should the child’s wishes play a more important role in judicial proceedings concerning care and custody and/or access rights?

Abstract

Child-friendly justice has become a necessity in today’s day and age, and a primary requisite to fully recognise the significance of this latter point, is to incorporate children’s effective participation into judicial proceedings. The concept of child participation has been recognised in various international and European instruments, and these studies and reports are tackled individually and comparatively in this paper.

Though this notion has been well-received in specific jurisdictions, there still are many improvements that are needed in others. The United Nations Convention on the Rights of the Child brought out from the shadows the right of minors to be heard. This paper focuses on the evolution this fundamental principle has undergone throughout the years. The primary aim of this paper is to understand whether the procedures established by our law regarding care and custody and/or access rights are in line with international and European standards.

In Chapter 1, some of the present laws enabling the sphere of child participation are analysed and following this, Chapter 2 presents a literature review of a number of international and European instruments. Lastly, Chapter 3 provides a review of Malta’s position regarding this fundamental principle and recommendations that have been formulated in the past years. It is in this latter Chapter that both local jurisprudence and European case law is considered. Thus, two main arguments are brought to the forefront, the introduction of age limits restricting full recognition of the child’s right to be heard and the right of adequate representation that should be afforded to children in these circumstances. Even though the relationship between spouses in matter of separation and divorce may come to an end, the role of mother and father still prevails.