A comparative analysis between the interpretation of ‘in loco parentis’ under English law and that under Maltese law

Abstract

It is understood, and for the most part, accepted, that nowadays there is not just one type of family. The traditional family unit is considered to be the nuclear family. However, over time, ‘blended’ families, ie when an individual takes on the role of a non-biological parent, have become increasingly common. The status of these persons is governed by the in loco parentis doctrine, which traditionally applied to educators. This being said, the current position of these individuals under Maltese law remains rather ambiguous. It is therefore the aim of this study to attempt to find an answer for all these grey areas in local legislation, by means of a comparative analysis with England. This exercise shall be conducted in three steps. Firstly, the author attempts to identify the individuals most likely to be acting in loco parentis, mainly through an analysis of very limited Maltese jurisprudence and parliamentary debates. Secondly, it attempts to clarify how the status of being in loco parentis is conveyed unto these individuals, both in England and Malta, and whether there is any procedure which facilitates this. Lastly, the first two facets are brought together in an examination of the nature and extent of the rights and obligations of the individuals acting in loco parentis. Each of these aspects shall be thoroughly examined in the main body of the work. This shall then be followed by a set of recommendations, favouring mainly foreign legislation, intended to cater for all the flaws and unanswered questions which are currently present under Maltese law, insofar as the status and rights and responsibilities of an individual acting in loco parentis in Malta are concerned.