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Commissioner for Children Act (Cap. 462) Consolidated

CHAPTER 462

COMMISSIONER FOR CHILDREN ACT

To provide for the appointment of a Commissioner for Children with power to investigate any breaches or infringements of the rights of children.

5th December, 2003

ACT VII of 2003, as amended by Legal Notice 427 of 2007.

1. The short title of this Act is the Commissioner for Children

Act.

2. In this Act, unless the context otherwise requires -

''child'' means any person who has not attained majority;
' ' complainant'' m e ans any person who report s , in writing or verbally, an alleged breach of the rights of any child provided that a verbal complaint should always be subsequently put in writing;
''Commissio n er'' mean s t h e Commissi oner for Ch ildren appointed under article 3 and includes any officer assigned to assist the Commissioner and authorised by him in that behalf;
''Committee'' means the Social Affairs Committee of the House of Representatives or any other committee substituting the same.
'' Minister'' means the Minister respons i ble for children and family affairs;
''rights of children'' include the rights of children enunciated in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.

3. (1) There shall be a Commissioner for Children who shall be appointe d by the Prime Mini ster afte r consultation with the Committee.

(2) A person shall not be qualified to hold office as
Commissioner if such person:
(a) is a Minister, Parliamentary Secretary, or a Member of the House of Representatives, or
(b) is serving as a judge or magistrate; or
(c) is legally incapacitated; or
(d) has been declared bankrupt or has made a composition or arrangement with his creditors; or
(e) has been convicted of a crime affecting public trust or theft or fraud, or of knowingly receiving property obtained by theft or fraud, a crime affecting the good order of families, or of an offence against this Act.
(3) Where the person appointed Commissioner is prior to such appointment already a public officer, such person shall continue to r e t a i n su ch of f i ce but shall no t h o ld any posi tio n w h ich is incompatible with the correct performance of his or her official

Short title. Interpretation.

Appointment of

Commissioner.

independence expected from this office or with public confidence therein.

Independence of functions.

Representation of the Commissioner.

4. In the exercise of the functions established under this Act, the Commissioner shall act independently and shall not be subject to the direction or control of any other person or authority.

5. Any document purporting to be an instrument made or is sued and signed by the Commis sioner shall be received in evidence and shall, until the contrary is proved, be deemed to be an instrument made or issued by the Commissioner.

Tenure of office. 6. (1) Subject to the provisions of subarticle (2), the Commissioner shall hold office for a term of three years and shall be eligible for reappointment on the expiration of such term of office.

(2) Unless the office sooner becomes vacant, a person appointed as Commissioner shall hold office until a successor is appointed.
(3) The Commissioner may at any time resign from office by writing addressed to the Minister.

Removal or suspension from office.

7. A Commissioner may at any time be removed or suspended from offic e by the Prime Minister aft e r co n s ul ta ti on w i th t h e Commit tee on the gro unds o f prov ed inabilit y to perform th e functions of the office of Commission er (whether arising fr om infirmity of body or mind or any other cause) or proved misbehaviour:

Provided that if the Committee is not constituted or if Parliament is not in session, the Commissioner may be suspended from office by the Prime Minister, acting in accordance with his own discretion, for inability to perform the functions of the office or misbehaviour proved to the satisfaction of the Prime Minister, but any such suspension shall not continue in force beyond two m on ths af ter th e Co mm it tee i s const itu ted and Par li amen t i s in session.

Temporary appointment of Commissioner for Children.

8. (1) The Prime Minister may, at any time during the illness or absence of the Commissioner or for any other temporary purpose where the Commissioner considers it necessary to do so, appoint a person to act in the office of Commissioner in accordance with this article, until the resumption of office of the Commissioner.

(2) A person shall not be qualified to be appointed under this article if such person is disqualified to be appointed to the Office of Commissioner under article 3(2):
Provided that a person appointed under this article may exercise any activity for profit or reward which is not in any way incompatible with the provisions of article 3(2).

Functions of the

Commissioner.

9. The Commissioner shall have the following functions:

(a) to promote and advocate for the rights and interests of children;
(b) to ensure that children are being given the opportunity to express their opinions and that these are in fact considered;
(c) to promote the protection of family unity;
(d) to advocate for adequate support to parents for the up- bringing of their children;
(e) to foster the development of alternative care to children who need such care with special reference to fostering and adoption;
(f) to seek to ensure that the rights and interests of children are properly taken into account by government departments, local authorities, other public bodies and voluntary and public organisations when decisions on policies affecting children are taken;
(g) to promote the protection of children from physical or mental harm and neglect, including sexual abuse or exploitation;
(h) to promote the highest standards of health and social services for women during pregnancy and to promote special care and protection, including adequate legal protection, for children both before and after birth;
(i) to promote the highest standards of health, and education and social services for children;
(j) to promote the highest standards of leisure, play and recreational facilities for children;
(k) to ensure that all possible measures are taken by the relevant authorities to prevent and remedy poverty and social exclusion among children;
(l) to promote compliance with the United Nations Convention on the Rights of the Child as ratified by Malta and with such other international treaties, conventions or agreements relating to children as are or may be ratified or otherwise acceded to by Malta.

10. The Commissioner shall be guided by the following general principles:

(a) that the best interests of children and the family are paramount;
(b) that all children are to be treated with dignity, respect and fairness;
(c) disabled children and children with disadvantaged family or social circumstances should enjoy the same quality of life like all other children;
(d) that children and their families are to be provided with opportunities to participate in decisions that affect them and in defining, planning and evaluating services to children; and
(e) that government, families and communities share the

Guiding principles.

and well-being of children.

Promoting the best interests of children.

11. In order to promote the welfare of children and to monitor the conditions under which children develop, the Commissioner shall:

Council for

Children.

Minister to assist the Comm issioner , com p osed of the Commissioner who shall be the chairperson and six other members as follows:
(a) one person appointed by the Minister;
(b) one person appointed by the Minister responsible for
Health;
(c) one person appointed by the Minister responsible for
Education;
(d) one person appointed by the Minister responsible for
Home Affairs;
(e) one person appointed by the Minister responsible for
Justice; and
(f) the Chairperson of the Committee.
(2) The Council shall have the right to co-opt up to seven other persons who, in the opinion of the Council, best represent children and the rights of children. These persons shall, as far as possible, be children and people involved in the promotion of children’s rights.
(3) The Council shall not act unless the chairperson and two other members are present.
(4) The Council shall meet at least once every three months and shall be convened by the chairperson. The chairperson shall also convene a meeting of the Council when requested to do so by at least two members thereof.
(5) The Council shall, subject to the foregoing provisions regulate its own procedures.
(6) The functions of the Council shall be:
(a) to monitor compliance with the United Nations Convention on the Rights of the Child as ratified by Malta and with all such other international treaties, conventions or agreements relating to children as are or may be ratified or otherwise acceded to by Malta;
(b) generally to advise and assist the Commissioner in the performance of the functions of the Commissioner as listed in this Act;
(c) to advise and assist the Commissioner in the promotion of the welfare of children as specified in article 11.

13. The Commissioner, the Council members and every member of the staff of the Commissioner ’s office shall maintain s e crecy in respect of all person al mat t er s th at co me to th eir knowledge in the exercise of their powers and the carrying out of their duties and functions under this Act, and shall not divulge any ma tter c o ming to the i r knowle d ge a s a f oresaid except for the purpose of an investigation, or prosecutions for an offence against this Act or any other offence against the person of a child.

14. (1) Saving what is provided in subarticle (2), the Co mmissi on er may car r y ou t an in vest ig at io n fo r an y pu rp ose connected with the execution of the Commissioner ’s duties either on a written complaint made to the Commissioner by any person or on the Commissioner ’s own motion.

Confidentiality.

Investigations.

(2) The Commissioner shall not carry out investigations concerning specific, individual conflicts between a child and its parents or guardians, or between the parents or guardians including matters concerning the exercise of parental responsibility and any other matter that falls with in the competence of any court or tribunal established by law and in any such case the Commissioner shall submit to the complainant, the reason for the refusal.
(3) A rejection by the Commissioner to carry out an investigation shall be final.
(4) Upon rendering a decision to investigate a complaint, the Co mm issi oner sh all n o tify t h e com p lain an t of th e decision to investig ate and sh all not ify any depar tmen t , agen cy or enti ty involved of the intention to investigate.
(5) The Commissioner may advise a complainant to pursue all administrative or judicial remedies or channels of complaint open to the complainant before or in lieu of pursuing a complaint with the Commissioner.
(6) If the Commissioner finds in the course of an investigation that an individual’s action is or may be in violation of any law of a penal nature, the Commissioner shall immediately report that fact to the Attorney General.
(7) The Commissioner shall prepare and publish a report of the findings in any formal investigation and shall include in it such recommendations as appear to be necessary or expedient.

Access to information.

15. (1) For the purpose of an investigation the Commissioner may require any person who possesses documents or information relevant to the investigation to:

(a) produce such documents; and, or
(b) furnish the information in writing; and, or
(c) attend at a specified time and place and give oral information on oath.
(2) The Commissioner shall have the power to summon witnesses and to administer an oath to any person concerned in the investigation and require them to give the relevant information.
(3) Notwithstanding the provisions of the preceding two subarticles, no person shall be compelled to give information or produce documents which such person could not be compelled to give or produce in civil or criminal proceedings before a Court.

Recommendations. 16. (1) The Commissioner may make recommendations for action to be taken by other persons or body as may be necessary or expedient and may pub lish su ch recommendations, i f t h e Co mmi ssio n er deems fit , wi th ou t reveali n g t h e id en ti ty o f th e person to whom the report refers.

(2) In those cases where the Commissioner decides to make recommendations, a report shall be drawn up by the Commissioner explaining the reasons for th e recommendations and the Commissioner shall send a copy of such report to any person or body to whom the recommendations are directed.

17. (1) If it appears to the Commissioner that a particular person or body is not complying with the provisions of the United Nations Convention on the Rights of the Child as ratified by Malta, then the Commissioner may make recommendations in the form of a compliance notice, which shall state the Commissioner ’s opinion as to the way in which the provisions of the Convention are not being complied with and what action should be taken to comply.

(2) Any person or body receiving a recommendation in ac corda n ce with the prec eding sub-article, shall consider the recommendation and notify the Commissioner within such time as the Commissioner may stipulate in the compliance notice, of the action which has been taken or it is intended to take in response to the recommendation.
(3) Where any person or body to whom a recommendation is directed int e nd s n o t to com p ly wi th it, they shall f u rnish t h e Commissioner with reasons for not doing so, and the Commissioner may, if deemed fit, publish these reasons.
(4) The Commissioner may require a person or body to whom a recommendation has been directed to furnish such information as may be reasonably required to verify whether the recommendation has been complied with or not.
(5) The Commissioner shall establish and maintain a Register of Compliance Notices and the register may be inspected by any person.

Compliance with the UN Convention on the Rights of the Child.

18. (1) Whenever it appears necessary or expedient, the Comm issioner m ay carry out or cause to be carried out a Child Impact Statement relating to any decision or proposal on policy which affects children.

(2) Any Child Impact Statement shall set out the probable impact on children of the decision or proposal on policy.
(3) The Commissioner may publish the Child Impact Statement

Child Impact

Statement.

19. (1) The Commissioner shall, not later than six weeks after the end of each calendar year make and transmit to the Minister, an annual report which shall include:

(a) a report of the Commissioner ’s activities during the year;
(b) a general description of the circumstances of children in Malta and a survey of the developments which have affected them;
(c) any recommendations regarding the need for legislation or change in rules or policies; and
(d) any responses made to the Commissioner in accordance with this Act.
(2) The Minister shall, at the earliest opportunity and not later than eight weeks after he has received a copy of every such report, or if at any time during that period the House of Representatives is not in session, within eight weeks from the beginning of the next following session cause a copy of every such report to be laid on

Annual report.

the Table of the House of Representatives.
(3) The report mentioned in subarticle (2) shall be discussed by the Committee.

Offences.

Amended by:

L.N. 427 of 2007.

Provisions of this Act not to derogate from provisions of the Constitution.

20. Any person who knowingly impedes or obstructs the Com missioner in p erforming or exercising powers or functio ns given under this Act; or refuses to give any information required by the Commi ssi oner o r k nowing l y prov ides false o r misl e adi n g information as required under this Act, shall be guilty of an offence and shall on conviction be liable to a fine (multa) not exceeding one thousand and one hundred and sixty-four euro and sixty-nine cent s (1,16 4 .69 ) pr ovid e d th at wh en the act commit ted b y an offender constitutes a more serious offence under any other law, the provisions of that other law shall apply in respect of that act.
21. The provisions of articles 3, 6, 7 and 9 shall be in addition to and shall not derogate from the provisions of the Constitution with regard to the appointment, discipline and removal of public officers.