The role of the child advocate in family court proceedings : a comparative outlook

Abstract

The notion of children being active participants in proceedings, as distinct from the absent but intended beneficiaries of it, may excite people in two ways. Some may think that such involvement is essential if children's rights are to be respected. Others might think that such involvement is quite inappropriate and is inconsistent with the whole idea of childhood. The first reaction suggests a 'children's liberation' view of children's rights which, at its simplest and most extreme, simply means that the law should treat children as if they were adults: if there is anything that adults can do that children cannot do, it is ipso facto a denial of children's rights. The second suggests that children should be neither seen nor heard, and that adults' responsibility for children is inconsistent with listening to what they say. In my opinion, each of these reactions is a bit extreme. The Maltese Civil Code provides for parents to have powers and responsibilities in relation to children. In this it reflects widely held social values, in our community and many others: children start off rather helpless, and parents need to help them grow up. This involves a multitude of tasks and decisions, most obviously grabbing a child who is about to run onto a busy road. There is no room for debate about the extent of these powers, and how they should be exercised, and how they diminish and change as the children grow; but the social and legal existence of some such parental responsibilities is as uncontroversial as any such matter can be. What happens in family breakup is that the parents cannot agree on decisions affecting the children, and something must be done. But the children are still children. Thus whatever system is to deal with the problem, it has the problem the parents had, namely to determine the appropriate balance in dealing with the particular children, of making decisions about the child and doing things for the child, and helping the child become more autonomous. For this reason, if one compares the provisions relating to children in the middle of family disputes and finds that they do not have the same autonomy as adults do, this is not surprising, and does not necessarily indicate that children are being treated as property. Perhaps they are indeed being ignored, treated as playthings, or property; or perhaps they are being treated appropriate as children. To discover which is true, further inquiry is necessary: the lack of adult autonomy rights in children does not of itself indicate any deficiency in the system. First, providing children with information about what is going on has much to commend it. Children, after all, have to live with the result of whatever is decided, and only if they know what is going on can they make informed decisions about what sort of involvement they want to have. It seems likely in many cases that children will have gathered that something is going on, from such events as arguments, or a parent leaving home or surprisingly sleeping in another room. And often parents will have sought support or sympathy from the children, or sought to recruit them to their side. In many cases, keeping the children out of the conflict is not an option, because they are already in it; but making them better informed might well be an option. Next, and for similar reasons, it seems generally desirable for children to know about the process of resolving the matter: what the court does, or how the parents are helped to work it out The children should know what options they have. After all, at present one of those options is to be a party to the proceedings: it seems obviously unfair and inconsistent if they are not to know what options they have. Further, it is quite easy to underestimate the importance for children of giving them a chance, if they wish, to make their views and feelings known; to the parents, to the court, and perhaps to others. This seems quite different from putting on them the responsibility for making the decision, the usual rationale for ignoring children. Many children, surely, would appreciate the chance to make their views and feelings known, while realizing perfectly well that the decision was up to the adults. These are the guidelines, which in my opinion a new Family Court must observe so as to ensure a fair and equitable process to all the parties to the suit, as well as the children involved, the latter having the right to express their wishes through a mechanism which makes their true best interests as the paramount consideration. Therefore, on the basis of the above submissions, it is my intent to highlight the importance of children being made parties to the proceedings in the Family Court arena thereby first explaining some preliminary points, secondly outlining the appointment and duties of the child advocate in certain countries and divergent opinions on the matter, thirdly I shall expand on these functions while commenting on the practice of the advocate in these countries. All the chapters in these thesis inter-relate in one another. This is because the fulcrum of this whole exercise is what type of representation is the one ideal for children; must they be treated completely as adults thereby granting them their rights and they can freely exercise them at their discretion or should they be given these rights but at the same time there will be someone who will guide them to exercise them in the proper manner? It will become evident throughout the thesis that the second type of representation is the one which I preferred as the basis of my argument. Finally, at the end of the thesis I shall be proposing a piece of legislation intended to regulate the work of the child advocate. My proposal is that this legislation will be incorporated in the Family Court Act under a separate heading dedicated to children.