ACT No. VII of 2003 An Act to provide for the appointment of a Commissioner for Children with power to investigate any breaches or infringements of the rights of children.

I assent.

G UIDO DE M ARCO

(L.S.)

President

25th July, 2003

ACT No. VII of 2003

An Act to provide for the appointment of a Commissioner for Children

with power to investigate any breaches or infringements of the

rights of children.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows>

(1) The short title of this Act is The Commissioner for

Children Act, 2003.

(2) This Act shall come into force on such date as the

Minister may by notice in the Gazette appoint, and different dates may

be so appointed for different provisions and different purposes of this

Act.

In this Act, unless the context otherwise requires –

“Child” means any person who has not attained majority<

“complainant” means any person who reports, 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<

“Commissioner” means the Commissioner for Children

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 responsible 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 20 th November 1989.

(1) There shall be a Commissioner for Children who shall Appointment of

Commissioner.

be appointed by the Prime Minister after 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 retain such office but shall not hold any position which is incompatible

with the correct performance of his or her official duties as

Commissioner for Children or with the impartiality and independence

expected from this office or with public confidence therein.

In the exercise of the functions established under this Act, the Independence of

functions.

Commissioner shall act independently and shall not be subject to the

direction or control of any other person or authority.

Any document purporting to be an instrument made or issued Representation of

and signed by the Commissioner shall be received in evidence and shall, the Commissioner.

until the contrary is proved, be deemed to be an instrument made or

issued by the Commissioner.

(1) Subject to the provisions of subarticle (2) hereof, 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.

A Commissioner may at any time be removed or suspended

from office by the Prime Minister after consultation with the Committee

on the grounds of proved inability to perform the functions of the office

of Commissioner (whether arising from 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 months after the Committee is

constituted and Parliament is in session.

(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 subarticle (2) of article 3 of this Act>–

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 subarticle (2) of article 3 of this

Act.

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.

The Commissioner shall be guided by the following general Guiding principles.

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

responsibility for the promotion of the development and well-being

of children.

In order to promote the welfare of children and to monitor

the conditions under which children develop, the Commissioner shall>

a. provide public education and information designed to

promote an understanding of the rights of children<

b. initiate measures for asserting the rights and promote the

interests of children<

c. collect information and investigate any alleged breaches

of the rights of children including the death of any child if the

Commissioner considers such an investigation to be necessary<

d. set standards to be applied by ministries, departments or

agencies of the Government to help ensure that their internal review

processes are responsive to complaints about decisions concerning

the provision of designated services to children<

e. monitor whether ministries, government departments and

agencies referred to in paragraph (d) are meeting the standards set

under that paragraph<

f. collect data about, conduct or encourage research into,

matters relevant to services for children<

g.

ensure that such services in relation to children are –

i.

accessible,

ii. community-based,

iii.

co-ordinated and integrated,

iv.

inclusive of gender, culture and language, and

v.

responsive to individual needs<

h. provide public education and information designed to

promote an understanding of, and to invite public comment on,

the work of the Commissioner<

i. monitor and assess the policies and practices of social

welfare services affecting children<

j. ensure that legislation relating to the protection of

children’s interests is observed<

k. act as a spokesperson for the rights, needs and interests

of children and put forward proposals for measures which can solve

or prevent conflicts between children and society<

l. advise the Government and propose to the Government

such measures as may be required in order for the rights and

interests of children to be provided for.

(1) There shall be a Council for Children appointed by the Council for

Children.

Minister to assist the Commissioner, composed 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 of this Act.

The Commissioner, the Council members and every member

of the staff of the Commissioner’s Office shall maintain secrecy in

respect of all personal matters that come to their knowledge in the

exercise of their powers and the carrying out of their duties and functions

under this Act, and shall not divulge any matter coming to their

knowledge as aforesaid 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.

(1) Saving what is provided in sub-article (2) of this article,

the Commissioner may carry out an investigation for any purpose

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.

(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 within 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 Commissioner shall notify the complainant of the decision to

investigate and shall notify any department, agency or entity 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.

(1) For the purpose of an investigation the Commissioner Access to

Information.

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 sub-

articles, 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.

(1) The Commissioner may make recommendations for

action to be taken by other persons or body as may be necessary or

expedient and may publish such recommendations, if the Commissioner

deems fit, without revealing the identity of the 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 the recommendations and the Commissioner

shall send a copy of such report to any person or body to whom the

recommendations are directed.

(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

accordance with the preceding 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 intends not to comply with it, they shall furnish the

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.

(1) Whenever it appears necessary or expedient, the Child

Statement.

Commissioner may 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

(1) The Commissioner shall, not later than six weeks after Annual Report.

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 the Table of the

House of Representatives.

(3) The report mentioned in sub-article (2) of this article

shall be discussed by the Committee.

Any person who knowingly impedes or obstructs the Offences.

Commissioner in performing or exercising powers or functions given

under this Act< or refuses to give any information required by the

Commissioner or knowingly provides false or misleading information

as required under this Act, shall be guilty of an offence and shall on

conviction be liable to a fine (multa) not exceeding five hundred liri

provided that when the act committed by an offender constitutes a more

serious offence under any other law, the provisions of that other law

shall apply in respect of that act.

A

Provisions of this

The provisions of articles 3, 6, 7 and 9 of this Act shall be in

Act not to derogate

addition to and shall not derogate from the provisions of the Constitution

from provisions of

the Constitution.

with regard to the appointment, discipline and removal of public officers.

Passed by the House of Representatives at Sitting No. 28 of 21st July, 2003.

A NTON T ABONE

Speaker

R ICHARD J. C AUCHI

Clerk to the House of Representatives

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press