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Maltese Laws |
FOSTER CARE ACT
To make special provision for foster care and to make consequential and other amendments.
16th November, 2007
ACT XVII of 2007, as amended by Legal Notice 427 of 2007.
PART I
INTRODUCTION AND DEFINITIONS
"accredited agency" means an organisation which is accredited by the central authority to carry out foster care placements;
"Board of A ppeal" m eans the board est a blished by v i rt ue of article 14 or such other administrative board or tribunal
which the Minister may from time to time designate to carry out all or any of the functions as specified in this Act;
"care plan" means a plan drawn up by a social worker of an accredited agency in collaboration with others involved in the
best interests of the child;
"central authority" means the Authority established by virtue of article 6;
"child" means a person under eighteen years of age; "cross-border foster care" means:
(i) the care provided by a foster carer who is a Maltese citizen, to a child who is not a Maltese citizen and who is resident in
Malta; or
(ii) the care provided by a foster carer who is not a Maltese citizen and whose approval by a foreign authority
is recognised by the central authority, through an accredited agency, to a child who is resident in Malta;
"foster care" means a service for a determinate period whereby a child is placed in the continuous care of a foster carer,
and through which the child is brought up in a family environment according to his best interests;
"foster care a greeme nt" means the agreement entered into in accordance with article 24;
"fo s t e r carer" means on e or more p e rso n s appr oved by the
Fostering Board to foster a child;
"Fostering Board" means th e board established by virtue of article 3;
"Minister" means the Minister responsible for social policy;
Short title. Definitions.
Cap. 468.
Establishment of the Fostering Board.
"social worker" shall have the meaning assigned to it by article 2 of the Social Work Profession Act.
PART II
FOSTERING BOARD
(a) professionals representing different disciplines; and
(b) a person who, in the opinion of the Minister, has adequate knowledge and is proficient in the area of foster care.
(2) The Minister shall endeavour to have a person over the age of eighteen years who was placed in foster care and a person who
is or was a foster carer as part of th e Fostering Board and such persons may be appointed at any time during the term of office
of the Fostering Board.
(3) The members of the Fostering Board shall be appointed by the Minister for a minimum period of two years.
(4) Any member of the Fostering Board may be removed from of fice by the Minister on g r ounds of inabilit y to perform the functions
of their office or of misbehaviour.
(5) In the event that any member of the Fostering Board vacates his of fic e before c o mpleting his term, the member
ap po in ted in h i s st ead sh al l be so app o i n t e d f o r th e un expi red period of the original appointment.
(6) The Minister shall designate a person to act as Secretary to the Fostering Board and such person shall, as part of his duties,
be responsible for the keeping of the relevant records and shall carry out such other work related to the functions of the Fostering
Board as may be instructed by the Chairperson.
(7) Subject to the provisions of this Act and to any regulations m a d e th ereund er, t h e Fostering Board shall regulate its
own procedure:
Provided that any decision of the Fostering Board shall be taken by a majority of votes; however in the case of an equality of votes
the Chairperson shall have and exercise a determining vote. The Secretary to the Board shall not vote.
(8) The Fostering Board shall meet as and when necessary, provided it meets at least once every month. In the case of a
written request by the Minister or by an accredited agency, which request shall be transmitted through the Secretary of the Board,
such Board shall meet by not later than forty eight hours following the request.
(9) The Fostering Board shall have the power to consult pr ofessi on als or o t h e r perso n s h a v i n g rel e van
t kn ow led g e an d experience in the field of foster care.
(10) The members of the Fostering Board, the Secretary to such
Bo ar d and any perso n i nvo lv ed in t h e pr oceed i ng s befo re th e
Fostering Board shall be bound by confidentiality and shall not disclose to any third party any information which may come to their
knowledge during the proceedings. These persons shall also not distribute to any third party any document pertaining to the Fostering
Board or any copies thereof, unless requested or duly authorised to do so by the Minister or by any court of law.
(11) The Fostering Board shall submit to the Minister an annual report of all its activities during the preceding calendar year by
not later than the fifteenth April of each year.
(a) examining Home Study Reports and Review Reports in accordance with Part V drawn up by a social worker of an accredited agency;
(b) determining suitability or otherwise of prospective foster carers;
(c) determining that a foster carer is no longer suitable to act as such;
(d) specifying what type of foster care is suitable to be provided by each foster carer;
(e) keeping an updated register of foster carers;
(f) providing foster carers with official documentation that identifies them as such and an official letter identifying
the children in their care;
(g) reviewing reports compiled by an accredited agency, following a complaint against a foster carer, and taking any action as deemed
fit in the circumstances;
(h) making recommendations to the Minister on the parameters to be established for the organisation of training
programmes, assessments, counselling sessions for prospective foster carers as well as monitoring of, and support
structures for, foster carers;
(i) making recommendations to the Minister for the more effective implementation of the provisions of this Act and any regulations
made thereunder.
(2) The Fostering Board shall have access to all documentation deemed relevant to the foster care procedure a nd it shall be unlawful
for any person to hinder it in the carrying out of any of its functions.
Functions of the
Fostering Board.
5. (1) Any decision in terms of article 4(1)(b), (c) and (d) shall be taken after the Fostering Board has reviewed the Home Study Report, or the Revi ew Report and, or any other releva nt documentation, and after it has heard the prospective foster carer and any other persons, including the children concerned, the Board may deem fit in the circumstances. The decisions and the reasons therefor shall be communicated in writing, within five working days from the date of such decision, by registered mail to the foster c a r er o r th e p r os pec tiv e fos t er ca re r, a s ap plic a b le , an d to the accredited agency involved.
Decisions of the
Fostering Board.
(2) The foster carer or prospective foster carer, as applicable, may appeal from a decision delivered by the Fostering Board, by filing an application in front of the Board of Appeal by not later than eight working days from the date of service of the decision by registered mail.
Establishment of the central authority.
Functions of the central authority.
PART III
CENTRAL AUTHORITY
(a) receiving and acknowledging applications for accreditation;
(b) granting, refusing, or revoking accreditation to organisations in accordance with established criteria;
(c) receiving, acknowledging, investigating and taking any necessary action in relation to any complaints against accredited
agencies or any organisations purporting to act as such;
(d) receiving requests from foreign persons who are approved as foster carers abroad and who, through an accredited agency,
request to be recognised as foster carers in terms of this Act, and after making the investigations it deems fit
and obtaining all the necessary documentation, deciding whether to accept such request after consulting with the Fostering
Board;
(e) receiving applications from agencies which would like to carry out cross-border foster care and deciding whether to
allow such agencies to effect such placements;
(f) taking any measures deemed necessary in the circumstances, if a foster care placement, whether local or cross-border,
is in breach of the provisions of this Act.
Application for the granting of accreditation.
(2) The central authority may at any time during the processing of an application, require an organisation to provide any documents and information deemed necessary in order to ascertain whether accreditation should be granted.
Accreditation of an organisation.
(a) has sufficient experience and expertise in dealing with child and family matters; and
(b) has an adequate number of staff who are trained to
carry out foster care services; and
(c) has the administrative and legal competency to carry out the functions appertaining to foster care services.
(2) The certificate referred to in subarticle (1) may be renewed by the central authority if the accredited agency applies for renewal by not later than two months prior to the expiration of its accreditation and renewal shall only be granted if the accredited agency is still in compliance with articles 8 and 9. The decision of the central authority on the renewal of the accreditation certificate shall be served on the accredited agency, by registered mail, within thirty days from the application for renewal.
Accreditation
Certificate.
(2) The organisation shall have the right to request a reversal of the decision of the central authority by filing an application
before the Board of Appeal within twenty days from the date of service as specified in subarticle (1).
(3) The organisation shall have the right to re-apply to the central authority for accreditation if the reason for the
refusal no longer subsists.
Refusal of an application.
(a) files a request in writing for revocation;
(b) ceases to comply with the criteria of eligibility for accreditation;
(c) is no longer deemed suitable to provide foster care services;
(d) is in breach of the conditions for accreditation in accordance with the provisions of this Act.
(2) The central authority shall serve the agency, by registered mail, with the written revocation together with the reasons therefor
and such revocation shall have effect from date of service.
(3) If the accreditation is revoked on any of the grounds mentioned in subarticle (1)(b), (c) or (d), the agency shall have the rig h t to file an application in fr o n t of the Board of Appeal, requesting a reversal of the decision
of the central authority, within ten days of the service specified in subarticle (2).
(4) If an appeal is filed in accordance with subarticle (3), the agency may request the Board of Appeal to suspend the decision
of the Central Authority until the final decision.
Revocation of accreditation.
(5) If the accreditation of an agency is revoked, the Accreditation Certificate and all the records and documentation relating to foster care services shall become the property of the central au thority. The cent r al aut hority may appoint ano t her acc redite d agency to have cu stody of such records and documentation, continue to monitor the prospective foster carers and the foster carers, con tinue to supp ort and monit o r the placements of the children who were placed in foster care, and to carry ou t all the function s that bel onged t o th e agency who s e accreditation was revoked, according to article 17.
Publication in the
Gazette.
Establishment of
Board of Appeal.
Cap. 12.
(a) a list of all accredited agencies specifying their full name, registered address and other relevant contact details;
(b) a list of agencies whose accreditation has been revoked throughout the previous calendar year; and
(c) any changes in the conditions required for accreditation or renewal.
PART IV
BOARD OF APPEAL
(2) The members of the Board of Appeal shall be appointed by the Minister for a period of three years, and may be removed from
office by the Minister on grounds of proved inability to perform the functions of their office or of proved misbehaviour.
(3) A member of the Board of Appeal may be challenged or m a y abstain fo r any of the re asons fo r w h ich a judge may be challenged
or may abstain in accordance with article 734 of the Code of Organization and Civil Procedure. In any such case, the Minister shall appoint another person to sit as a member on the Board of Appeal in substitution of the said
member for the duration of the appeal in question.
(4) A person shall not be qualified to be appointed or continue to hold office as a member of the Board of Appeal if that person
is a Judge, a M a gistrate, a membe r of the House or of a Local Council, or a candidate for election to t h e Hou s e or a Local
Council.
Jurisdiction and powers of Board of Appeal.
(a) review decisions of the Fostering Board upon an appeal filed in accordance with article 5(2);
(b) review decisions of the central authority upon an appeal filed in accordance with article 11(2);
(c) hear and decide an appeal filed in accordance with the
provisions of this Act and any regulations made thereunder;
(d) undertake any other function as the Minister may designate by regulations made by virtue of this Act.
(2) In order to carry out its duties, the Board of Appeal shall h a ve access to all do cumen t atio n pertaining to the foster
care procedure and it shall be unlawful for any person to hinder it in the carrying out of its functions.
(3) The Board of Appeal shall have such powers as are, by the Code of O rganization an d Civil Pro c edu r e , v ested in the Civi l Court, First Hall.
(4) Without prejudice to subarticle (3), in the exercise of its functions, the Board of Appeal may summon any person to give evi
d en ce and produ ce th e necessary d o cumen t ation . For t h is purpose the Chairperson shall have the power to administer the
oath.
(5) The Board of Appeal shall decide an application for appeal by not later t han fou r m on ths fro m the date o f the fil ing
of th e appl icatio n, unl ess in t h e opini on o f the Ch airp erson a l onger period is necessary for a valid reason which must
be stated and registered in the proceedings of the case.
(6) A decision given by the Fostering Board or by the Central Authority shall have immediate effect unless the Board of Appeal
decides to suspend it until it has given the final judgement.
(7) The decision of the Board of Appeal shall be communicated to the applicants, the Fostering Board and the central authority
by not later than three working days from the date of such decision.
(8) In cases falling under the jurisdiction of the Board of Appeal in accordance with subarticle (1), there shall be a
right of appeal on a point of law. Such ap pe al shal l be m a de by an application to the Court of Appeal constituted in accordance
with article 41(6) of the Code of Organization and Civil Procedure. Such application shall be filed by not later than twelve days from the date of the decision of the Board of Appeal.
PART V
ACCREDITED AGENCIES
(a) provide a service according to the standards, criteria and procedures established by the central authority;
(b) receive and process applications from persons who apply to be registered as foster carers;
(c) provide initial training to prospective foster carers and continuous training to foster carers registered with it, and provide
them with adequate support while they are
Cap. 12.
Cap. 12.
Arrangements for foster care.
Functions of accredited agencies.
carrying out any foster care placement;
(d) match foster carers with children who are to be placed in foster care;
(e) make all reasonable attempts to place siblings with the same foster carer if this is in the best interest of the siblings;
(f) make all reasonable attempts to place a minor parent and his or her child with the same foster carer;
(g) ensure that any foster care placement will be in the best interest of the child;
(h) monitor all foster care placements arranged by it and provide support to foster carers during the foster care placement arranged
by it;
(i) review and propose amendments, if necessary, to foster care agreements;
(j) investigate complaints against any foster carer in accordance with the manual or procedures specified in article 18 and
draw up a report and forward it to the Fostering Board for any necessary action;
(k) investigate any allegations of abuse in any foster care placement, in accordance with the manual or procedures
mentioned in article 18, and report as necessary to the competent authority;
(l) grant the central authority access to any records and documentation dealing with the foster care procedure of any child
and to reports on any foster carer or prospective foster carer;
(m) grant the central authority access to its financial accounts and audits;
(n) report to the central authority at the end of every calendar year on the performance of its functions;
(o) comply with any other duties and obligations as specified by the central authority.
Policies and procedures.
(a) training and assessment procedures;
(b) matching of foster carers with children;
(c) forms of support for foster carers and for children who have been placed in foster care, both before, during and after the foster
care placement;
(d) emergency placements of children in need of care; (e) investigation of complaints against any foster carer; (f) change in circumstances of foster carers;
(g) cases of abuse of children in foster care; and
(h) cases of death of children in foster care.
(a) inform prospective foster carers of its objectives, powers and activities;
(b) make available a copy of its Accreditation Certificate to prospective foster carers as proof of its accreditation;
and
(c) inform prospective foster carers of any legal requirements.
Information to prospective foster carers.
(a) the foster care placements and the type of placements arranged by it;
(b) the prospective foster carers registered with it; (c) the foster carers registered with it; and
(d) the professionals who are monitoring every foster care placement.
Keeping of registers.
(a) provide training to the prospective foster carer;
(b) assess the suitability or otherwise of the prospective foster carer;
(c) draw up a report to be known as the "Home Study Report" on the situation of the prospective foster carer, including
any recommendations and forward it to the Fostering Board, which shall decide whether the prospective foster carer is suitable
to be approved as a foster carer.
(2) For the purposes of drawing up the Home Study Report, the social worker authorised by the accredited agency shall carry out
the necessary home visits. The visits may be unannounced and the prospective foster carer shall not refuse entry, shall co-operate
with the social worker and shall provide correct information to the best of his knowledge.
Access to information.
Training.
Assessment of prospective foster carers.
Foster care agreement.
(2) Any rights and duties pertaining to the foster carer in accordance with the foster care agreement shall not be perceived
to be seen as a permanent right or duty.
(3) The foster care agreement in terms of subarticle (1) shall be i n the best int e rest of the ch ild an d shall prov ide for
d e tailed information related to the rights and duties of the foster carer and it shall specifically include:
(a) the extent to which the foster carer may make decisions with regard to the child in his care;
(b) the frequency of contact of the child with the natural parent or parents;
(c) the child’s care plan;
(d) matters of education, health and maintenance of the child; and
(e) any other matter pertinent to the child in foster care.
(4) The Fostering Board, the accredited agency, the natural mother, the natural father if he has recognised the child, the
foster carer and the Children and Young Persons Advisory Board, where applicable, shall be provided with a copy of the foster care
agreement, and any amendments thereto shall be agreed to by the parties and shall be communicated in writing to all the parties having
a copy of the original agreement.
(5) The foster care agreement, drawn up by the accredited agency, shall be signed by the accredited agency, the foster
carer and the person having care an d cu stod y of t h e chi l d . Thi s agreem ent shall be draw n up after having heard th e child
to be fostered, according to his age and understanding, and any person caring for the child. Any person having parental authority
shall also be heard if such person can be found and is capable of expressing his views.
(6) In the event of disagreement on the amendments to the foster care agreement, every party may refer the matter to the
Civil Court (Voluntary Jurisdiction Section), and the court shall decide in the best interest of the child concerned.
(7) The foster care placement may be terminated by the accredited agency if:
(a) the foster carer does not conform with the foster care agreement; or
(b) the Fostering Board decides that the foster carer is no longer suitable to provide foster care; or
(c) the foster care placement is no longer in the best interest of the child.
Rights of children in foster care.
(2) For the purposes of drawing up the Review Report, the social worker shall carry out the necessary home visits. The
visits may be unannounced and the foster carer shall not refuse entry, shall cooperate with the social worker and shall provide
correct i n format ion to the best of his kn owledge. Th e social worker carrying out the visit shall be entitled to be assisted
by a member of the Polic e Force in c ase of an y hi ndran ce or o bst ru cti on i n th e exercise of such duty.
PART VI
OFFENCES
27. (1) Any person who makes or gives, or agrees or offers to make or give, or receives or agrees to receive, or attempts to obtain
any p a ymen t or ot her reward fo r or in consideratio n of any arra ngements for a fos t er care place me nt shall be guilty of
an offence and shall, on conviction be liable to imprisonment for a term of not less than three months and not exceeding six months
or to a fine (multa) of not less than one thousand and one hundred and sixty-four euro and sixty-nine cents (1,164.69) but not more than two thousand
and three hundred and twenty-nine euro and thirty- seven cents (2,329.37) or to both such fine and imprisonment, in addition to any
order deemed fit in the circumstances in order to protect the child in respect of whom the offence was committed.
(2) For the purposes of this article, the making of any arrangements for the placement of a child in foster care
shall not include any payments made for the maintenance of the child or remuneration to professionals for services rendered by
them.
Monitoring of foster care placement.
Prohibition of payment. Amended by:
L.N. 427 of 2007.
(a) a child may be placed in foster care; (b) a person intends to foster a child; or
(c) a person intends to make arrangements for the placement of a child in foster care.
(2) Without prejudice to any regulations made under this Act, a person shall not, without the approval in writing of an accredited
agency, publish or cause to be published in any newspaper,
Prohibition of publication. Amended by:
L.N. 427 of 2007.
periodical, any other printed matter or by means of broadcasting, television, public exhibition or by any other means or medium:
(a) the name of a foster carer;
(b) the name of a child who is or will be placed in foster care;
(c) the name of a natural parent, curator or tutor of the child who is or will be placed in foster care; or
(d) any matter likely to enable any of the persons mentioned in paragraphs (a), (b) and (c) to be identified.
(3) Any person who acts in breach of this article shall be guilty of an offence and shall, on conviction, be liable to imprisonment
for a term of not less than th ree months and not exceeding six months or to a fine (multa) of not less than one thousand and one hundred and sixty-four euro and sixty-nine cents (1,164.69) but not more than two thousand
and three hundred and twenty-nine euro and thirty-seven cents (2,329.37) or to both such fine and imprisonment, without prejudice
to any payment of damages that are deemed fit in the circumstances.
Use of force.
Amended by:
L.N. 427 of 2007.
Cap. 285.
29. A person shall be guilty of an offence and shall on conviction be liable to imprisonment for a term of not less than three
months and not exceeding six months or to a fine (multa) of not less than one thousand and one hundred and sixty-four euro and sixty-nine cents (1,164.69) but not more than two thousand
and t h ree h und red and t w enty -ni n e euro and thirty-s even cents (2,329.37) or to both such fine and imprisonment, if such
person:
(a) threatens or forces a foster carer, against his will, to give up a child placed in his care;
(b) takes the child away from a foster carer against the child’s will, without the approval in writing of an accredited
agency;
(c) threatens or forces a foster carer, against his will, to give up to any order issued by any court of law or issued by virtue
of the Children and Young Persons (Care Orders) Act;
(d) threatens or forces a foster carer, against his will, to act in breach of the provisions of this Act;
(e) threatens or causes any type of damage to a foster carer; or
(f) forces entry into the residence of a foster carer.
Hindrance.
Amended by:
L.N. 427 of 2007.
30. Any person who in any way hinders or obstructs the Fostering Board, the Board of Appeal, the Central Authority or an accredited
agency in the performance of any of their functions shall b e gui lty of an o f fen ce and shall on co nvi ct ion be l i abl e to
impri so nment fo r a term of not less than six mont hs and n o t exceeding one yea r or to a fine ( mu lta ) o f no t less tha n one thousand and one hundred and sixty-four euro and sixty-nine cents (1,164.69) but not more than two thousand
and three hundred and
twenty-nine euro and thirty-seven cents (2,329.37) or to both such fine and imprisonment.
31. A person or organisation who makes arrangements to place a ch ild in fo ster care wi thout th e authorisati on of the central authority
shall be guilty of an offence and shall on conviction be liable to imprisonment for a term of not less than six months and not exceeding
one year or to a fine (multa) of not less than one thousand and one hundred and sixty-four euro and sixty-nine cents (1,164.69) but not more than two thousand
and three hundred and twenty-nine euro and thirty-seven cents (2,329.37) or to both such fine and imprisonment.
32. Where any person acts in breach of any provision of this Act or any regulations made thereunder, and a specific penalty is not provided
for the offence under this Act or any regulations made thereunder, such person shall, on conviction, be liable to a fine ( mu lta ) of no t less t h an tw o hun dr ed an d t h i r ty -t wo euro an d ninety-four cents (232.94) but not more than two thousand and
three hundred and twenty-nine euro and thirty-seven cents
(2,329.37).
Fostering by unauthorised persons or organisations. Amended by:
L.N. 427 of 2007.
Other offences.
Amended by:
L.N. 427 of 2007.
PART VII
REGULATIONS
(a) for the protection, supervision and control of children placed in foster care;
(b) for the accreditation, monitoring and control of agencies and for the refusal or revocation of such accreditation;
(c) to provide for any rights and duties pertaining to a foster carer, including that which should be established in the foster
care agreement;
(d) to regulate the different types of foster care;
(e) to establish penalties for breach of the provisions of this Act;
(f) to establish the procedure to be followed by the
Fostering Board and the Central Authority;
(g) to lay down the rules on the powers of and the procedures to be followed by the Board of Appeal; and
(h) for any incidental and supplementary matter which the Minister considers expedient to provide for, for the effective implementation
of the provisions of this Act.
PART VIII
TRANSITORY PROVISIONS
Regulations.
Transition period.
agency, within three months of the date of entry into force of this
Act.
(2) Following the communication referred to in subarticle (1), the Fostering Board shall:
(a) direct an accredited agency to include the foster carer in its register of foster carers and such foster carer shall be
assessed by the accredited agency in order to determine whether he should be allowed to continue acting as such; and
(b) issue the official documentation and official letter referred to in article 4(1)(f).
(3) Following the assessment specified in subarticle (2), the foster carer shall enter into a foster care agreement and continue
to be monitored and assessed in accordance with article 26.
(4) All organisations which, prior to the coming into force of this Act were providing foster care services shall, within one month
of the coming into force of this Act apply for accreditation in accordance with article 8 in order to be able to continue providing
foster care services.
(5) All organisations as specified in subarticle (4) which do not apply for accreditation within the specified time limit and which
continue providing foster care services shall be in breach of article
31.
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