CASE OF M.D. AND OTHERS v. MALTA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award
David Scicluna;David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
6. The first applicant, M.D., is the mother of two minor children, the second and third applicants, R.D. and A.D. 7. Following reports to the Aġenzija Appoġġ (which forms part of the Foundation for Social Welfare Services and has as its aim the enhancement of the lives of people in need, through the provision and availability of professional care and support), an investigation by specialised social workers was undertaken in respect of the family. Meetings took place between the parents, social workers, professionals (doctors, police and lawyers) and the directors of the relevant agency. Finally, on the recommendation of the Director of Social Welfare, on 14 July 2005 the Social Policy Minister issued a care order under Article 4 (1) of the Children and Young Persons (Care Orders) Act (“the Act”) placing the two minors, R.D. and A.D., in an institution run by nuns. By a decision of 17 August 2005, after having heard the first applicant’s objections, the Juvenile Court confirmed the care order. It further solicited the social services to complete the fostering assessment of the maternal grandparents to enable the children to reside with them if it was found to be in their best interest. 8. At the same time, criminal proceedings were brought against the first applicant and her partner, X., who is the alleged father of the minor children. 9. By a judgment of 16 March 2006 the Court of Magistrates as a court of criminal judicature found X. guilty of cruelty towards the two children and failure to protect them, causing them slight injuries, and of excessive correction of the two minors (under twelve years of age). X. was sentenced to two years’ imprisonment. His appeal having been withdrawn, the judgment became final. 10. By the same judgment, M.D. was found guilty of cruelty towards the two children and failure to protect them, and excessive correction of the two minors (under twelve years of age). She was sentenced to one year’s imprisonment, suspended for two years. M.D. appealed. 11. By a judgment of 4 August 2006 the Court of Criminal Appeal upheld the first-instance judgment. Having assessed the evidence the court found that M.D. had been present when X. repeatedly beat the children, aged three and five, and, possibly because of his threats, had not had the courage to report him or ask the relevant authorities for assistance, with the result that the children were severely bruised. They also suffered from bald patches and lice-infested hair, symptoms of serious neglect on the part of the mother. She had also repeatedly behaved roughly towards her children. She was therefore guilty of the first charge by acts of commission and omission (in so far as she had not taken the requisite steps to protect her children). The court also confirmed her guilt regarding the charge of excessive correction of the two minors. Considering it appropriate, in the event that the children were ever returned to her, the court confirmed the sentence handed down by the first-instance court. 12. Under Maltese law the provisions of Article 197 (4) of the Criminal Code were applicable to a conviction for an offence under Article 247 A (see “Relevant domestic law” below). 13. At the start of the criminal proceedings the relationship between M.D. and X. ended. While the care order was in place, M.D. was given supervised contact with her children for one hour a week and eventually three hours a week. Later, in 2009, the children spent weekends and public holidays with her. 14. Attempts to persuade the Minister to revoke the care order failed. 15. On 19 April 2007 the first applicant, in her own name and on behalf of her children, instituted constitutional redress proceedings. She relied on Articles 6 § 1, 8 and 13 of the Convention, particularly on the basis that there existed no remedy under the Act providing for re-examination by an independent and impartial tribunal of an issued care order, since such a revision depended solely on the discretion of the Minister who had issued the order. The circumstances having changed, she requested the court to revoke the order and grant any other necessary remedy. 16. On 12 July 2007, the Civil Court (First Hall) rejected a plea of non-exhaustion of ordinary remedies by the State (namely, in reference to that provided in Subsidiary Legislation 285.01) since no proof had been submitted in corroboration at that early stage of the proceedings. It therefore decided to examine the case. 17. By a judgment of 2 April 2009 the Civil Court (First Hall) held that M.D. could only act in her own name, and did not have a right to act on behalf of her minor children. Indeed, according to Articles 8 and 9 of the Act, when a care order was issued the relevant parent was deprived of the right to represent his or her children or to sue on their behalf, and care and custody of the children concerned were entrusted to the Minister. It noted that in the proceedings nobody had requested the court to provide the children with a representative ad litem (Article 783 of the Code of Organisation and Civil Procedure (COCP)). 18. In respect of M.D., the court found a violation of Articles 6 and 13 of the Convention in that the law did not provide access to court to challenge the care order, but no violation of Article 8. It observed that the care order issued was a permanent one (valid until the minors reached 18 years of age). The Act provided for an objection to the care order to be lodged within twenty-one days of the order being issued, and that such an objection would be dealt with by the Juvenile Court. However, the applicant complained that it was not possible for an individual to request a revision of the order subsequently. The court considered that termination of custody fell under the concept of civil rights, particularly because a care order did not imply the end of natural ties between children and their parents. Consequently, a parent’s right of access to court and to the possibility to regain custody of his or her children was a living right. The court considered that the remedy relied on by the State, namely judicial review proceedings, would not be appropriate in the circumstances. Judicial review was concerned with assessing the decision-making process, but not the merits of a decision itself, as the court would not act as a court of appeal from the body involved. In the event that an administrative decision was quashed the court could only remit the case to the authority for reconsideration, at most requesting the authority to bear in mind the reasons for the quashing. Moreover, the Children and Young Persons Advisory Board (Article 11 of the Act) was simply an advisory board subject to the authority and discretion of the Minister. Therefore, it could not be considered an impartial and independent tribunal. It followed, from an analysis of Maltese law, that there was no remedy granting access to court for the applicant or anyone in her position seeking re-examination of the merits of a care order. This constituted a violation of Article 6 § 1, which absorbed Article 13. 19. Under Article 8 it held that the care order had been in accordance with the law and pursued a legitimate aim. While bearing in mind that M.D. had made improvements and was changing her life, it considered that the grounds on which the care order was based had not disappeared and in view of the frequent reviews of the situation by the social services it could not be said that her rights under Article 8 had been breached. 20. The court rejected the claim for the revocation of the care order but, in accordance with Article 242 of Chapter 12 of the Laws of Malta, it ordered that a copy of the judgment be sent to the Speaker of the House of Representatives for consideration by parliament in respect of a possible amendment to the law, as the only remedy that could provide redress to the applicant was a legislative change providing for access to court in such a situation. 21. Both parties appealed. 22. By a judgment of 14 May 2010 the Constitutional Court observed that on the day when the care order was issued M.D. had lost care and custody of her children in favour of the Minister, and therefore it confirmed that in the absence of an appointment by the court, M.D. could not represent her children in the proceedings. Moreover, following her conviction, M.D. had lost all authority and rights over her children in view of the automatic application of Article 197 (4) of the Criminal Code and therefore, in the absence of any request to the court for representation of the minors, she could not act on their behalf according to Maltese law (see “Relevant domestic law” below), notwithstanding any different procedure which might be applicable before the European Court of Human Rights. In this light, in relation to the merits of the complaints under Articles 6 and 13, the court considered that in the present case, M.D. having lost all her parental rights as a result of her conviction, could not exercise any right in respect of which she was deprived of access to court. It followed therefore that no violation of Article 6 could ensue. The situation would have been different had the applicant been affected only by the care order (which solely took away the rights relating to care and custody) and not the subsequent conviction. Neither could it be said that any rights under Article 8 came into play, since the applicant had regular contact with her children. However, the first-instance judgment in relation to whether the Act contravened the applicant’s Article 8 rights had become final, as no appeal had been lodged in this connection. 23. The relevant articles of the Children and Young Persons (Care Orders) Act, Chapter 285 of the Laws of Malta, read as follows: Article 4 “(1) If, on representations made to him in writing by the Director of the Department responsible for social welfare and after giving the parents and the guardian, if any, of the child or young person an opportunity to express their views, and after hearing any other person he may deem likely to assist him, the Minister is satisfied that that child or young person is in need of care, protection or control, it shall be the duty of the Minister by an order in writing under his hand to take such child or young person into his care. (2) A copy of any order made by the Minister under subarticle (1) shall forthwith be sent by registered letter to the person exercising paternal authority over the child or young person, or to his guardian, if any, who shall be asked to state to the Director of the Department responsible for social welfare within twenty-one days from the date of receipt of the said letter, whether he objects to the said order. (3) If the person to whom the registered letter is sent under subarticle (2) shall, within the time therein prescribed, signify, even verbally, his objection to the order, the Director of the Department responsible for social welfare shall, not later than seven days from the date on which he shall have become aware of the objection, refer the case to the Juvenile Court in such manner as shall be prescribed by regulations made under article 13. (4) Where a case is referred to the Juvenile Court under subarticle (3), the said court shall, in such manner and within such time as shall be prescribed by regulations made under article 13, review the whole case and decide whether the child or young person is in need of care, protection or control and shall accordingly confirm or revoke the order made under subarticle (1). (5) An order made under subarticle (1) shall, unless it has ceased to have effect earlier, cease to have effect on the date on which the child or young person in respect of whom the order is made attains the age of eighteen years.” Article 8 “ The Minister shall, with respect to any child or young person committed to his care by an order made under article 3 or taken into his care by an order made under article 4(1), under article 5 or under article 6(1), have the same powers and duties with regard to his care and custody as the parents or guardian of such child or young person would, but for the order, have, and the Minister may, subject to any regulations made in pursuance of article 13, restrict the liberty of such child or young person to such extent as the Minister may consider appropriate (...)” Article 9 “Where a child or young person is in the care of the Minister in pursuance of this Act, it shall be the duty of the Minister to exercise his powers with respect to the care and custody of such child or young person so as to further his best interests and to afford him an opportunity for the proper development of his character and abilities (...)” 24. The relevant articles of the Criminal Code, Chapter 9 of the Laws of Malta, in so far as relevant, read as follows: Article 247A “(1) Whosoever, having the responsibility of any child under twelve years of age, by means of persistent acts of commission or omission ill-treats the child or causes or allows the ill-treatment by similar means of the child shall, unless the fact constitutes a more serious offence under any other provision of this Code, be liable on conviction to imprisonment for a term not exceeding two years. (...) (3) The provisions of article 197(4) shall also apply in the case of an offence under this article, when the offence is committed by any ascendant or tutor.” Article 197(4) “(4) A conviction under this article shall entail the forfeiture of every authority and right granted to the offender over the person or property of the husband or wife or of the descendant to whose prejudice the offence shall have been committed, and, in the case of the tutor, his removal from the tutorship and his perpetual disability from holding the office of tutor.” Article 30 “(1) Without prejudice to the provisions of any other law imposing or authorising the suspension or cancellation of, or disqualification from holding or obtaining, any warrant, licence, permit or other authority held from the Government or any other public authority, where any person is convicted, whether as a principal or an accomplice, of a criminal offence which has been committed - (a) in or in connection with the exercise of any profession, art, trade, calling or other occupation for which a warrant, licence, permit or authority has been or may be issued to him by the Government or any other public authority; or (b) in the use or by means of any instrument, vehicle, substance or other thing whatsoever for the carrying, keeping or using of which a licence, permit or authority has been or may be issued to him, the court may, in addition to sentencing the person convicted as aforesaid to any punishment provided by law for the offence, order such person to be disqualified from holding or obtaining, for such time as the court deems fit, such warrant, licence, permit or authority. Provided that, where an application under this subarticle is refused, a further application thereunder shall not be entertained if made within three months after the date of the refusal. ” Article 28 A “(5) A suspended sentence which has not taken effect shall for all intents and purposes of law be deemed, except as provided in subarticle (1), to be a sentence awarding punishment and nothing in this article shall be deemed to effect - (a) the applicability of any other punishment which may be awarded, or any suspension, cancellation, disqualification, forfeiture, loss or removal which may be ordered, together with the punishment of imprisonment so suspended;” 25. Article 783 of the Code of Organisation and Civil Procedure, in so far as relevant, reads as follows: “(1) In the cases referred to in this sub-title, the curator ad litem may be appointed by the same court before which the action has been brought, or is about to be brought, upon the application of any person interested. (2) The application for the appointment of a curator to represent a minor who desires to sue, may be made by any person.”