The state's duties when exercising parental authority on children under care orders

Abstract

Since children are such a valuable yet, vulnerable group of society, the law imposes upon the parents the duty to take care of and protect their children. Additionally, in order to ensure the safety of the child, the law, under the Children and Young Persons (Care Orders) Act, requires the State to intervene in family matters by removing children who are being neglected or abused from the care of their parents and placing them under a care order. Consequently, the Minister for Social Policy, acting on behalf of the State, acquires parental responsibility for these children. This thesis will be focusing on what care orders are and the reasons why they are issued. Once the grounds for the issuance of a care order are established, the thesis will analyze what care the Minister is meant to provide children under a care order with. The minimum standard of care parents or carers should provide for their children prior to the child being considered at risk and thus put under a care order, was established by analysing a random sample of care order files. The State, when exercising parental authority should ensure that this minimum standard of care is reached. Yet, as can be seen in this thesis, even the State, with all its powers, breached this important parental relationship it has with the child. Due to various reasons, all of which are related to lack of finance, the State failed to look after the children under a care order. The system of care orders, as well as the role of the Minister as the person who acquires parental responsibility is examined in this thesis. At present in Malta, care orders are issued by the Minister and reviewed by the Children and Young Persons Advisory Board. Since the Children and Young Persons Advisory Board falls under the power of the Minister, there is no separation of power. Thus, this thesis suggests that the Minister issues the care orders, the Court becomes the body that reviews the care order files and the Commissioner for Children ensures that both sectors are functioning well. In this manner, any decision related to care orders can be reviewed by an independent and impartial body.