The child's participation in separation proceedings regarding care and custody

Abstract

The child's participation has always been an issue of concern and controversy. The notion of 'children should be seen but not heard' is very much a thing of the past and does not reflect today's reality, as we all know, nowadays children from a very young age are not afraid to express their opinion and their wishes from very basic things to other major decisions concerning their life. One might ask if this is wise to let children decide upon important issues in their life. Giving them the opportunity is the starting point and listening to their opinions will surely benefit all parties involved, especially in circumstances involving the separation of the parents. The child's best interest is an issue which will come up in all judgements regarding care and custody and judges will order actions to protect this. The question is though, how was the child's best interests determined, is it from what the parents stated, or from what witnesses to the parties related? Are we somehow blinded by the fact that actions done by one parent including his or her lifestyle, may jeopardise the possibility that he or she might be the better parent to take care and custody as this will benefit the child the most? Is the child given the possibility to make her/his voice heard and if this is made possible what weight will it have upon the final decision given by the court? In my thesis I will endeavour to give a clearer picture as to where we stand as with regards to the child's right to be heard and other legal issues concerning the care and custody in separation proceedings. As the thesis is focusing on the child's participation in separation proceedings in Maltese courts, one has to say that the research resource is quite limited both in case law and other material related to the subject. Also with the help of a questionnaire that was distributed to parents and their children who underwent separation proceedings in 2005 and 2006, first hand feedback was obtained of what the reality is and what practices are used ininvolving· children 1n decisions concerning their life. The thesis will solely deal with the participation of the child as with regards care and custody in separation proceedings as I felt that it is a very concerning issue, taking into consideration the amount of separations being filed in a particular year. What is more alarming is that married couples are filing for separation after a few years of marriage and therefore the amount of young children being involved in this turmoil, is increasing yearly. Also a reference will be made to some cases which involved care and custody disputes between non-married parents, as this is also a part of today's reality. A comparative overview wili aiso feature in the hope that good practices used by other countries might be implemented into our legal system in a way that the child's best interests is truly observed and practised.