The protection of children under the right to private and family life in the light of the Constitution and the Convention

Abstract

This research deals with the right to respect for private and family life in the Maltese Constitution and the European Convention. The objective of this study is to analyse the protection of children under this right. An examination of Article 32 of the Constitution, holding the right to private and family life, reveals that it is not enforceable in court. Therefore, the protection given by the Constitution is restricted. From 1987, the European Convention Act brought the European Convention articles enforceable, as part of Maltese Law and so, allegations on violations of human rights set out in the European Convention could now be brought before the Civil Court, First Hall. Therefore, victims seeking redress under the right to private and family life could now file their action under Article 8 of the Convention. This study also examines the ‘Best Interests of the Child’ principle, as a separate concept and in relation with Article 8, where it appears that despite, they have an important coexistence, there is a conflict between them. This research delves into the constituent elements of private life and family life, and finds that both concepts, separately, hold other rights forming part of Article 8. It also makes an in-depth analysis of the child’s right to personal identity and the child’s right to be cared for by the parents through legislation and jurisprudence, both local and foreign. With regards to the former right, domestic legislation does not hold a specific provision for children to discover their roots. While local courts adjudicate in favour of legal certainty of family ties, the European Court adjudicates in support of the biological reality. With regards to the latter right, legislation offers a wide protection to children but national authorities’ measures are being found in violation of Article 8, hindering the protection of children.