MALTA Law and Practice Contributed by: John Bonello and Elian Scicluna, 8Point Law
case to decide upon the issue”. Exceptionally, in situations of imminent 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 advo - cate in accordance with Regulation 3 of Subsidi - ary Legislation 12.20. Regulation 3(6)(a) goes on to outline the role of 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 affidavits; and • explaining to the minors the potential conse - quences if the court were to align with their expressed wishes. Children’s advocates are appointed not only in cases of contentious separation but also in instances of amicable separation. The official position of children’s advocate was set up a few years back. One augurs that it will develop into a fully fledged institution for the protection of children’s rights in family matters. Parental Alienation In IS and Others v Malta decided by the ECHR in 2021, the ECHR noted that the State did not abide by its positive obligation to protect the right to family life as established by Article 8 of the European Convention on Human Rights, as
state authorities did not pursue all the necessary actions to reunite the applicant with his children. Aside from this case, the applicant had tried to seek effective redress through local remedies; nonetheless, these failed to implement the required measures to protect consistent contact and the relationship between the applicant and the child. The court must ensure that any decision taken in the context of family matters is in the child’s best interests. When faced with allegations of paren - tal alienation, the court may appoint experts to assess the situation. They will recommend the necessary action to prevent escalation and to rebuild the relationship between the child and the rejected parent. A public agency supports families in these situations. 3.4 ADR The only compulsory ADR in family proceedings in Malta is the mediation process a couple must go through before filing for separation or divorce. If mediation is successful, an agreement is drawn up to regulate the matter being addressed and is presented to the court for approval. Once signed by the parties, it is binding and – unless there is a serious change in circumstances – unlikely to be modified by the court. In the context of financial matters, further infor - mation has been provided in 2.9 Alternative Dis- pute Resolution (ADR) . 3.5 Media Access and Transparency See 2.8 Media Access and Transparency .
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