COMMISSIONER FOR CHILDREN ACT

COMMISSIONER FOR CHILDREN

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 .

The short title of this Act is the Commissioner for Children

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 20th November 1989.

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

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

COMMISSIONER FOR CHILDREN

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 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 and signed by the Commissioner shall be received in

evidence and shall, 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), 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 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).

The Commissioner shall have the following functions

(a) to promote and advocate for the rights and interests of

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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 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

COMMISSIONER FOR CHILDREN

(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

(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

M i n i s t e r t o a s s i s t t h e C o m m i s s i o n e r, c o m p o s e d o f t h e

Commissioner who shall be the chairperson and six other members

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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.

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 subarticle (2), 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

COMMISSIONER FOR CHILDREN

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

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.

(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

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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

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

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,

COMMISSIONER FOR CHILDREN

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 subarticle (2) shall be discussed by

the Committee.

Any person who knowingly impedes or obstructs the

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

one thousand and one hundred and sixty-four euro and sixty-nine

cents (1,164.69) 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.

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.