The Ministry of Justice and the Ministry for Social Policy and Children's rights launched a Public Consultation on reforms to Maltese Family Courts.1 This consultation includes nine recommendations aimed at addressing issues such as parental alienation, the delays in court proceedings related to separation, care, custody, access and maintenance issues, strengthening the mediation process, reviewing Family Court procedures and enhancing the role of the children's advocate. In response, the Family Law Working Group (FLWG), constituted by family law professionals within the Chamber of Advocates, provided feedback on these proposals.2 In this article, the author reviews and comments on both the government's proposals and the FLWG's reactions.
Proposal One
Establishing a specialised Family Court with its own legal code that consolidates all family law
The reform proposes creating a separate set of rules and regulations for the Family Court by compiling existing laws and proposed amendments into a new code. The FLWG believes that substantive laws are already well consolidated within the Civil Code, and these should not be shifted to a separate code, since legislative provisions regulating family life should not be treated as separate or distinct from other civil law areas. However, the FLWG supports the creation of a procedural code to streamline Family Court procedures. This code can serve to consolidate; time frames for appeal from decrees and special proceedings, warrants which are specific to family proceedings, any laws which are currently found in various legal instruments, and an opportunity to create new laws to address any current lacunas. A Code of Family Court Procedure is a welcomed initiative since it aims to achieve clarity and systemisation of laws but as the FLWG warned, this exercise should not be done in haste.
Proposal Two
Establishing a Family Board to facilitate the judicial process at the beginning and throughout the mediation process
This proposal suggests creating Family Board to support the judicial process, by reviewing cases involving disputes filed during mediation. The Board would consist of a lawyer, psychologist and social worker tasked to review cases from the start of mediation. The parties involved would be required to disclose detailed information on assets, liabilities, debts and proposals for care and custody arrangements. The Board would then present these recommendations to the Court. The FLWG critiques this proposal, arguing that creating a new body would slow down the process and risk failure to the detriment of the parties involved. They recommend instead investing in the judiciary and assigning expert professionals to assist judges directly. As a counterproposal, the FLWG submitted a 'Process of Discovery' in which a judicial assistant appointed at the start of the mediation, gathers relevant documentation from banks, tax authorities, etc.) Should the mediation process fail, this documentation would automatically become part of the court process, saving time. The author believes that this approach strengthens existing procedures, maintains court authority, and eliminates the need to create a new body such as the Family Board. If the Family Board is introduced, its role should be clearly outlined and used only in specific cases when requested by the Court or the parties.
Proposal Three
New timeframes for the mediation process to avoid unnecessary delays
The reform seeks to limit the mediation process to six hearings or a maximum of eight months duration to prevent delays. The FLWG points out that currently the mediation process usually ends within eight sessions, unless the parties are close to reaching a settlement. In the author's view, imposing a strict timeline could add unnecessary stress, potentially compromising careful negotiation. If there is room for an amicable settlement, it should be done diligently, to ensure parties are comfortable with the terms, and without pressure of a deadline.
Proposal Four
Equal rights and responsibilities, co-parenting and taking decisions in the best interests of the child
The scope of this proposal is to implement a structure whereby both parents are given equal rights in care, custody and residence except in cases of abuse, or when it is not in the best interests of the children. The FLWG criticises this approach, as this endorses the mentality that having access to one's children is a right. Conversely, during this process, the focus should be the children's rights and their parents' duty in their regard (not otherwise). While there are instances where equal rights benefit the children, the FLWG stresses that one cannot adopt a 'one size fits all' approach. The legislative framework must steer clear from creating rigid models, and instead preserve the Court's independence, impartiality and discretion.
Proposal Five
Addressing legal disputes related to access and maintenance.
The proposal discusses two main issues: maintenance and access. For maintenance it suggests deducting payments directly from a parent's salary, pension or inheritance with non-payment being treated as a continuous offence, allowing police to collect monthly reports and present them as one case. Regarding access, the reform proposes that parents who fail to follow court-ordered visitation schedules are also reported. These recommendations are beneficial as they emphasise that parenthood comes with legal obligations which if not complied with, carry legal consequences. On the topic of maintenance, the FLWG also flagged the necessity for the creation of guidelines, to outline maintenance payments based on the income of the family. With such guidelines in place, legal professionals would be in a better position to advise clients and ensure consistency in court orders.
Proposal Six
Establishing a Court Support Office, an office of professionals from various disciplines whose role would be to assist individuals involved in Family Court proceedings.
The establishment of a new Court Support Office, within the Courts Service Agency will take on the role of engaging support professionals for both the Family Board and the Family Court. These support professionals would be psychiatrists, psychologists, therapists, social workers and specialists in parental alienation. Coordinators would be engaged to manage communications with these professionals and ensuring their adherence to the Family Board and Family Court's requirements. A list of qualified support professionals will be drawn up to assist the Family Board, mediators and the Court in providing necessary support to families going through the separation process. This proposal is an interesting one and if implemented, employing competent coordinators will be a vital necessity for this Office to reach its full potential.
Proposal Seven
Support for victims of domestic violence
The Reform document proposes that when it is evident that one of the parties is a victim of domestic violence, evidence should be presented to the Court or the Family Board during the first sitting, and the mediation process is discarded. Involving the Family Board in these cases unnecessarily prolongs the process since it lacks decision-making powers. The author believes that while eliminating mediation for domestic violence victims is a positive step, the reform should devise ways to offer psychological, financial and emotional support to victims through a system that ensures professional assistance is provided once domestic violence is identified, potentially in collaboration with the Family Board and the Court Support Office.
Proposal Eight
Strengthening resources available to professionals
The Reform explains its intentions to strengthen the mediation profession by offering mediators specialised training and continuous support in their work, in addition to them falling under the wing of the Malta Mediation Centre. Furthermore, it intends to offer support and specialised training for Children's advocates since the nature of their work would change in the event the structures proposed are implemented.
Proposal Nine
Simplification of the process concerning the dissolution of the community of acquests.
The Reform refers to fast-tracking the process concerning the dissolution of the community of acquests since as things stand, until the Court decides on dissolving the community of acquests, the parties are not allowed to make certain acquisitions without the other party's consent. To achieve this, the reform is suggesting making amendments to the Rules of Court. These amendments are necessary to ensure that the parties can move on with their lives as quickly as possible.
Concluding Remarks
It is encouraging to see various stakeholders in the family law sector offering their feedback on proposed reforms to the Family Court. Clearly, the existing system faces several challenges. The sector is complex, involving heightened emotions, and life changing decisions. Hence it is imperative to find ways to ease the burden and the challenges for all parties involved from a procedural standpoint. As the FLWG suggests, appointing additional members of the judiciary, dedicating more space to Family Courts and providing better support from multi-disciplinary professionals, will significantly improve the process and target key issues such as the prolonged delays in scheduling hearings. With the public consultation now complete, the author looks forward to seeing the Government's final position on the matter.
Footnotes
1 Link to the Family Courts Reform, Public Consultation Document: Riforma-Familja-24_-BookletEN-DIGITAL.pdf
2 Link to the Family Law Working Group Submission on the Public Consultation Document: RIFORMA
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