Children as parties in civil proceedings : a comparative analysis and an analysis from a children advocate's point of view

Abstract

Following the introduction of the Children's Advocate in the Maltese Legal System, Maltese children have acquired a new right in mediation and/or court proceedings, which is the right to legal representation. Nevertheless, the development of children's representation has been tempered by an as yet unresolved controversary concerning the role and responsibilities of the Maltese children's lawyer. Having assumed a dual capacity, that is of representing both children's 'wishes' and 'best interests', a Maltese children's lawyer has limited means of intervention in judicial proceedings. Consequently, children's voices remain partially silent. This study seeks to create an awareness that the Maltese child representation system should gravitate beyond a 'best interests' and a 'child's wishes' paradigm and assume a more traditional lawyer-client model. This is not a new concept in Child Law. In fact, many foreign jurisdictions have moved in that direction. To continue this progression, a greater understanding of the child's right to representation is required, including the child's role and interest in the proceedings, and the child's right to be involved as a participant in the litigation. This new path should reinforce the child's legal role and status as a full party to the proceedings.