MALTA Law and Practice Contributed by: John Bonello and Elian Scicluna, 8Point Law
tor to act on behalf of the child. This situation is likely to arise if, for example, a minor seeks to initiate pro ‑ ceedings against a parent for maintenance. The court is expected to assess whether the parent’s intentions conflict with the child’s interests, either on the court’s own initiative (ex officio) or based on a request from the minor or any interested party (eg, a social worker). If a parent with parental authority is unable or unwill ‑ ing to represent the child or to grant consent for the child to initiate legal action, the Court of Voluntary Jurisdiction can grant the necessary authority, ena ‑ bling the minor to apply to the court. This power is only granted in circumstances where the court deems it appropriate. Therefore, a child has the right to pursue maintenance from the parent responsible for providing it, particu ‑ larly when the other parent refuses to do so. Although children cannot initiate legal actions independently, there is an option for a child to voice their concerns and advocate for their right to maintenance. The court may allow a third party (such as a curator or tutor) to represent the child – especially when the parents refuse or have conflicting interests – and thereby provide the child with the opportunity to assert their rights. As mentioned earlier, maintenance obligations cease when a child reaches the age of 18. However, if the child continues their studies, these obligations extend until the age of 23. Once the child turns 18 and is legally considered an adult, they can apply for finan ‑ cial provisions independently if a parent fails to fulfil their maintenance responsibilities. 3.3 Other Matters If the parents have conflicting and opposing views regarding specific issues (ie, schooling, medical treat ‑ ment or religion), the parties may seek a court deci ‑ sion. Whenever any individual desires to proceed before the Family Section of the Civil Court in con ‑ nection with disputes between parents concerning the custody and maintenance of or visitation rights to their children (or variation of any agreement in rela ‑ tion to these matters), the claimant must first demand that mediation takes place. If the parties fail to reach
agreement in mediation, the matter will be referred to the courts for decision. Maltese law clearly states that there is no age limitation with regard to the witnesses who will take the stand during legal proceedings, provided that they under ‑ stand that “it is wrong to give false testimony”. Article 131 (4) of the Civil Code of Malta states that, in family matters, the court must hear the parents and the child, if such child has attained the age of 14 years, and then suggest a way forward. If the disagreement between the parents persists, the court can also authorise “the parent whom it considers more suitable to protect the interest of the child in the particular case to decide upon the issue”. Exceptionally, in situations of immi ‑ nent danger, any one of the parents may act and take urgent measures. In cases involving children, the Family Section of the Civil Court may appoint a children’s advocate in accordance with Regulation 3 of Subsidiary Legisla ‑ tion 12.20. Regulation 3 (6A) goes on to outline the role of a children’s advocate, which includes: • keeping the child’s best interest in mind; • providing legal assistance, representation, advice and information to minors; • presenting the views of minors before the court, including through the submission of judicial affida ‑ vits; • explaining to the minors the potential consequenc ‑ es if the court were to align with their expressed wishes; and • providing the minor with any information relevant thereto. Children’s advocates are appointed not only in cases of contentious separation but also in instances of ami ‑ cable separation. The official position of children’s advocate was set up a few years ago, and it is hoped that it will develop into a fully fledged institution for the protection of chil ‑ dren’s rights in family matters. Parental Alienation In IS and Others v Malta , decided by the ECHR in 2021 (Application no 9410/20), the ECHR noted that the
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