By Dr Graziella Cricchiola - Associate
Malta, as a Member state of the European Union, is bound by international and European treaties to protect, respect and promote the rights of the child. The United Nations Convention on the Rights of the Child (UNCRC) acknowledges the fact that children are not mere i
ndividuals with basic human rights but given their inherent vulnerability, they also require additional protection from the State to ensure that their right to survival, development and well-being is not infringed. Article 19 of the UNCRC states that all children have a right to be protected from ‘all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child’.
The scope behind the domestic Minor Protection (Alternative Care) Act is to further safeguard, protect and give priority to the best interests of the minor and to ensure that, in the least possible time, the care given to minors is more or less stable. It was long been felt by professionals working in this sphere that their work performance was being hindered since the law failed to provide the necessary tools and protection to said professionals in order to provide the essential guidance and support for adequate and informed decisions.
This law, apart from revising the process by which these vulnerable children are protected, introduced the concept of mandatory reporting – a concept which legally obliges any professional who comes in contact with a child to report knowledge or strong suspicions of child maltreatment. Contrastingly, the general public would only have a moral duty (rather than a legal obligation) to report child abuse to the Director responsible for the protection of minors or to the Executive Police.
In fact, the law states that, “any professional who has knowledge of an act causing or which may cause significant harm on a minor as defined in sub-article (4) or which constitutes a criminal offense on a minor, shall immediately report to the Director (Protection of Minors) or the Executive
Police”. This provision came into effect on the 9th of March, 2021.
To further protect professionals, such law stipulates that if the report is lodged in good faith and the abuse does not subsist, there are no legal consequences against the professional in question.
These amendments convey a very clear message: child protection is everyone’s responsibility and professionals are not only bound to refer cases, but also to be trained, to share information and to work hand in hand with child protection services throughout. Any professional who fails to submit a report, and subsequently found gu
ilty of not doing so, may be condemned to imprisonment for a period of not less than three months and not more than nine months or a fine of not more than five thousand euro, or to both such fine and imprisonment.
So, what constitutes significant harm? The law provides that the term ‘significant harm’ includes abuse, neglect, harassment, ill treatment, exploitation, abandonment, exposure, trafficking, fear of violence and female genital mutilation. It also includes domestic violence as defined and provided for in the ‘Gender-based Violence and Domestic Violence Act.’ In other words, the term ‘significant harm’ is a wide and inclusive concept, and very subjective. It all depends on the particular circumstances of the case at hand.
To further protect the minor as well as the professional in question, all reports made and to whomever they might have been made, are deemed as protected by professional secrecy. Moreover, these reports are not accessible to the public, whether in their enti
rety or in part.
What happens after a report has been filed? As soon as the Director (Protection of Minors) receives a report, within five days, he is bound to determine, on the basis of the information provided, whether there are or sufficient reasons to believe that the minor is suffering or is at risk of suffering significant harm or otherwise. If the Director has sufficient reasons to believe that the minor is suffering or is at risk of suffering, investigations and evaluations would commence to determine whether the minor is in need of care and protection. On the other hand, if the Director (Protection of Minors) believes that there are no such reasons, he is duty bound to close the report and provide detailed reasons for his decision. This whole procedure should be concluded within 60 days, which period commences from the date of the decision of the Director (Protection of Minors).
Why was mandator
y report introduced? The primary aim of mandatory reporting is not to prosecute the caregivers, but rather to provide early interventions by the social welfare services to help the vulnerable child and prevent further abuse, neglect, and trauma.
Dr Graziella Cricchiola is an Associate at PROLEGAL Advocates.
Disclaimer: This article is not to be construed as being legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Graziella Cricchiola at graziella@prolegal.mt
.