The voice of the minor in court proceedings : a comparative study of the role of the child advocate

Abstract

Thirty years have elapsed since Malta ratified the United Nations Convention on the Rights of the Child which through Article 12, sets out baseline requirements for children to have a voice in proceedings which they are affected by but not a party to. Child participation in family and protection proceedings may be expedited through the function of a lawyer which has recently become a common practice in different jurisdictions. This study seeks to generate a baseline of the extent to which child legal representation is admitted in Malta when held against the jurisdictions of Ontario, Alberta and NSW. Despite the universal application set out by the United Nations Convention on the Rights of the Child, there are apparent incongruities in the way its principles are applied in practice. The lawyer representing minors is faced with an on-going dilemma of selecting which role to adopt varying from the neutral role of amicus curiae where no position is advocated for but only evidence is presented to the court which is the lawyer's client in this case, or assume a guardian ad litem role and advocate on his or her own standing of the child's best interests, or act on their demands and wishes thereby assuming an instructional advocacy role. In Malta, a Child Advocate acts on obscure grounds of representation and for this reason a rebuttable presumption must be established for an instructional advocacy role to be presumed if the minor has capacity to instruct the children's lawyer and a best interest's role if the child lacks capacity to comprehend. This study seeks to ultimately empower minors to voice their opinions in situations in which they are vulnerable parties and to further promote participation in proceedings as a special and essential component of any child's fundamental rights.