MT
MINOR PROTECTION (ALTERNATIVE CARE) ACT
Table of Provisions (103)
Statutory Text (103 Articles)
CHAPTER 602
MINOR PROTECTION (ALTERNATIVE CARE) ACT
AN ACT to substitute the Child Protection (Alternative Care) Act, Cap. 569,
to provide for protection orders for minors, for alternative care and for suitable
protection for those minors deprived of parental care or in the risk of being so
deprived, and for matters that are ancillary or incidental thereto or connected
therewith.
1st July, 2020 *
9th March, 2021 †
1st January, 2022 ‡
ACT XXIII of 2019. as amended by Acts XXXVII of 2020 and XXIII of
2021., XI of 2023 and XXIX of 2024.
(1)
The short title of this Act is the Minor Protection
(Alternative Care) Act.
(2)
The scope of this Act is to safeguard, protect and give priority
to the best interest of minors and to ensure, in the least possible time, the
permanence of the care given to minors.
In this Act, unless the context otherwise requires
"accredited agency" means any agency, as accredited by
the Central Authority in accordance with this Act and so
accredited for the organisation of training and for the
certification of persons deemed adequate to act as foster carers;
"alternative care" means the placement of a minor under
the care of a person or entity, not being a parent of the minor, as
ordered by the Court or as a result of an administrative decision,
*All provisions of the Act are in force expect articles 9 (2), (3), (4), 15, 26 to 30.
†Articles 9(2),(3) and (4) came into force.
‡Article 15 came into force.
MINOR PROTECTION (ALTERNATIVE CARE)
and the expression "alternative carer" shall be construed in like
manner;
"alternative permanency plan" means a concrete, timely
and systematic plan for any minor living in alternative care and,
or is protected by a care order, with the aim of promoting
stability and continuity in the care and alternative care of the
minor;
"Board of Appeal" means the Board of Appeal
established under article 64;
"care and protection" means such care and protection
which is reasonably expected from a parent towards his minor
for the purpose of promoting the full potential of that minor,
while taking into consideration the capabilities, natural
inclinations and the aspirations of that minor;
"care order" means an order issued in accordance with
article 19(1)(a);
"care plan" means a plan drawn up in accordance with
article 13 to promote the development and well-being of the
minor;
"Central Authority" means that entity which on the day
of coming into force of this Act was responsible for fulfilling
the functions mentioned in article 41;
"Children’s Advocate" means a lawyer appointed in
terms of regulation 3 of the Civil Court (Family Section), the
First Hall of the Civil Court and the Court of Magistrates
(Gozo) (Superior Jurisdiction) (Family Section) Regulations,
who shall exercise the functions given to him in accordance
with article 25;
"Court" means the Juvenile Court established under the
Juvenile Court Act but consisting solely of the Magistrate
without the two assistants appointed according to article 4(2) et
seq. of the same Act;
"cross-border foster care" means
(a)
the care provided by a foster carer who is
a Maltese citizen, to a minor who is not a Maltese citizen
and who is resident in Malta; or
(b)
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
the Director Alternative Care (Children and Youths), to a
minor who is resident in Malta;
"Director (Child Protection)" means the Director (Child
Protection) who investigates reports concerning children and
takes necessary action in accordance with this Act in the
children’s best interest;
"Directorate Alternative Care (Children and Youth)"
means the Directorate Alternative Care (Children and Youth)
which gathers within it services offered to children in
alternative care, adoption services and youth services;
"emergency order" means an order issued in accordance
with article 20;
"foster care" means the placement of a minor under the
care of a person, not being a parent of the minor, and which is
chosen, qualified, approved and supervised to provide care for a
period and in accordance with a care plan;
"foster carer" means one or more persons approved by
the Fostering Board to foster a minor;
"foster care agreement" means the agreement reached in
accordance with article 51;
"Fostering Board" means the board established by article
38;
"key social worker" means the social worker appointed
by the Director (Child Protection) to investigate a report, or the
social worker appointed by the Director Alternative Care
(Children and Youths), to follow the development and well-
being of a minor in alternative care and to co-ordinate and
follow up the progress of a care plan in relation to that minor;
"Minister" means the Minister responsible for the rights
of minors;
"minor" means a child under eighteen years of age;
"parent" means the biological mother or the father of the
minor or any other person who, by an express provision of the
law, has parental responsibility for such minor;
"parental responsibility guidelines" means directions
given to the parent or parents of the minor on what is
considered as constituting significant harm, on better methods
in parenting and, or disciplining minors and on what is
considered as desirable or undesirable parenting skills or
behaviour exhibited by the parents in the presence of the
minors;
"permanency which is relational, physical and legal"
MINOR PROTECTION (ALTERNATIVE CARE)
includes that the minor feels loved, protected, safe and
supported by the persons with whom he lives, that there be
stability in the physical surroundings in which he lives and in
his connections with the community, as well as those legal
arrangements related to his permanency and especially those
relating to his care and custody;
"protection order" means one or more orders issued in
accordance with article 19;
"registered social worker" or "social worker" shall have
the same meaning given to it by article 2 of the Social Work
Profession Act;
"Regulation (EU) 2016/679" means Regulation (EU)
2016/679 of the European Parliament and of the Council of 27
April 2016 on the protection of natural persons with regard to
the processing of personal data and on the free movement of
such data, and repealing Directive 95/46/EC (General Data
Protection Regulation);
"removal order" means an order issued in accordance
with article 19(1)(d);
"Review Board " means the Minors Care Review Board,
established in accordance with article 31;
"Social Care Standards Authority" means the authority
established by the Social Care Standards Authority Act;
"social contract" means the written agreement reached in
accordance with article 12, between the Director or any other
entity which the Minister may order by notice in the Gazette,
and the parents of a minor or any other person interested in the
well-being of the minor;
"supervision order" means an order issued in accordance
with article 19(1)(b);
"Therapeutic and Secure Centre" means the centre
established in accordance with article 26;
"treatment order" means an order issued in accordance
with article 19(1)(c);
"unaccompanied minor" means a minor who arrives in
Malta unaccompanied by an adult who by law or custom is
responsible for him, and for as long as the minor is not
effectively taken into the care of such an adult and includes any
minor who is left unaccompanied after he has entered Malta.
By virtue of this article, whenever according to this Act it is to
be determined whether a minor has sufficient understanding or not, or
whenever in a procedure according to this Act anyone is to consider and
determine whether such sufficient understanding is present or is not, and
notwithstanding any wording used for such a discretionary exercise,
those determining whether there is or there is not said sufficient
understanding shall presume that the minor has such a sufficient
understanding unless the contrary becomes evident.
PART I
OF THE PROTECTION OF MINORS
TITLE I
Sub-title I
OF THE DIRECTOR RESPONSIBLE FOR
THE PROTECTION OF MINORS
(1)
There shall be a Director responsible for protecting
minors at risk, who shall be known as Director (Child Protection) and
who shall be appointed following a public call from amongst persons
having at least five years experience in services related to minors and
competence in management.
(2)
The Director (Child Protection) shall be an officer of the
Foundation for Social Welfare Services and shall exercise his functions
through it
Provided that the Director (Child Protection) shall at all times
act in an impartial manner in the exercise of his functions.
(3)
There shall also be other officers of the Director (Child
Protection) who shall exercise and perform all such powers, functions
and responsibilities as may be delegated or assigned to them by the
Director (Child Protection).
(4)
In the exercise and performance of the powers, functions and
responsibilities delegated or assigned to them as aforesaid, the officers of
the Director (Child Protection) shall, save as otherwise apparent, have
the same powers, functions and responsibilities as are by law imposed on
or given to the Director (Child Protection).
(5)
In the exercise and performance of their powers, functions and
responsibilities, the Director (Child Protection) and the officers referred
to in sub-article (3) may request the assistance of the Executive Police in
accordance with thePolice Act, whenever they deem it required.
(6)
When the circumstances of a specific case require it, all
powers given to the Director (Child Protection) under this Act may be
exercised by the Chief Executive Officer of the Foundation for Social
Welfare Services.
(1)
Without prejudice to the functions as may be given to
him by this Act, or by another law, the function of the Director (Child
Protection) is that of ex officio investigating any harm or risk thereof in
relation to a minor, on which he holds a reasonable suspicion or on which
he was informed, and of taking any action as may be deemed appropriate
for the protection of the minor
Provided that the Director (Child Protection) may intervene
according to this article and this Act after having received a report from
a professional that a pregnant woman has a dependency on an illicit drug
or has another type of dependency which in the opinion of said
professional causes serious prejudice to the health of that woman.
(2)
In the exercise of his functions, the Director (Child Protection)
shall
(a)
act in the best interests of the minor at risk, even if
such minor is not a citizen of Malta;
(b)
ascertain the views and wishes of the minor at risk;
(c)
collaborate with all those involved in the protection
of the minor at risk;
(d)
investigate whether any action taken in relation to
the minor at risk is appropriate;
(e)
provide guidance to the parents and family of the
minor at risk;
(f)
from time to time issue guidelines as to what may
be deemed as significant harm or a risk of significant harm;
(g)
retain and update the Register for the protection
of minors in terms of the Protection of Minors (Registration)
Act; and
(h)
process requests for and issue Certificates of
Clean Conduct in relation to Abuse of Minors according to the
information retained in the Register established in the
Protection of Minors (Registration) Act.
(1)
The Director (Child Protection) shall hold regular
meetings at suitable intervals with representatives of the Education
Department, the Department of Health, the Police, and with any such
other person or entity which the Director (Child Protection) deems as
having responsibility for the protection of minors, or of a minor in
particular, for the purpose of discussing any matter which falls within
such responsibility and to set policies and protocols which are to be
adopted, as well as serving as a committee for joint investigations
amongst all entities having responsibility for the protection of minors or
of a minor in particular.
(2)
Minutes of the meetings mentioned in sub-article (1) shall be
kept and the progress made between one meeting and another shall be
monitored by the Director (Child Protection).
(3)
Where a meeting is held to discuss the case of a particular
minor the Director (Child Protection) may require any person or entity
attending the meeting to report on the progress of the minor and a copy of
such report shall be attached to the records held by the Director (Child
Protection) in relation to that minor.
(4)
Every person or entity attending a meeting shall be bound by
confidentiality and may not disclose to third parties any information or
provide documents or extracts thereof which may have come to their
knowledge or in their possession during such meeting or as a result
thereof
Provided that such disclosure or provision may be made
following an authorisation, request or order by a court.
(5)
The heads of department or entities mentioned or identified by
the Director (Child Protection) according to sub-article (1) shall ensure
that they appoint a representative to attend each and every meeting of the
committee for joint investigations.
(6)
The committee for joint investigations shall regulate its own
proceedings.
(7)
From time to time the Minister responsible for the well-being
of minors shall launch a national strategy on the protection and rights of
children together with the Director (Child Protection) and those entities
or departments having responsibility for the protection, safeguarding and
care of minors.
The performance of the functions of the Director (Child
Protection), inclusive of anything that may be required for their
execution and for administrative control, shall be the responsibility of the
Director (Child Protection).
The legal and judicial representation of the office of the
Director (Child Protection) shall vest in the Director (Child Protection)
Provided that the Director (Child Protection) may delegate the
exercise of said representation to other officers.
The functions of the Director (Child Protection) as Registrar
in terms of the Protection of Minors (Registration) Act, shall include
the following
(a)
to securely maintain and keep up-to-date the
Register in terms of the Protection of Minors (Registration)
Act;
(b)
to update the Register following orders issued by
the Courts and Tribunals of Malta or by any other competent
court;
(c)
to process requests for the issue of Certificates of
Clean Conduct in relation to Abuse of Minors;
(d)
to take all those necessary measures to keep the
Register secure in terms of the Data Protection Act;
(e)
to request information from entities in relation to
the maintenance of the Register established in the Protection of
Minors (Registration) Act;
to request information from relevant entities and
(f)
other employers regarding the nature of work that will be
expected from an applicant;
(g)
to liaise with any relevant entity to take the
necessary action under the Protection of Minors (Registration)
Act when information regarding an individual was not brought
to the attention of the entity by the said individual, which
information requires action by the relevant entity
Provided that this communication shall be limited to the
information provided and shall not constitute a breach of the
provisions under the Professional Secrecy Act and, or the Data
Protection Act.
Sub-Title II
OF THE PROTECTION OF MINORS
(1)
Any person who has reason to believe that a minor is
suffering, or is at risk of suffering, significant harm, may report the
circumstances according to which it holds such reason to the Director
(Child Protection) or the Executive Police
Provided that any reports received by the Executive Police
shall be forwarded to the Director (Child Protection) without delay.
(2)
Without prejudice to any other provision of any law and to his
professional obligations which hold true notwithstanding this article, any
professional who has knowledge of an act causing or which may cause
significant harm on a minor as defined in sub-article (4) or which
constitutes a criminal offense on a minor, or has knowledge that a
minor is in need of care and protection shall immediately report to the
Director (Child Protection) or the Executive Police and no such reporting
made in bona fide may constitute a criminal offence or give rise to any
right of action under any law whatsoever
Provided that if a report is made to an entity or institution
other than the Director (Child Protection) or the Executive Police, such
entity or institution shall register such report in writing and shall, without
delay, and in any case not later than twenty-four hours from the receipt of
the report, refer the report to the Director (Child Protection) or the
Executive Police.
(3)
Where a report concerns a pregnant minor who is in need of
care and protection, all efforts shall be made to keep mother and child
together after birth, unless this is manifestly contrary to the safety and
well-being of the baby.
(4)
Any professional fails to take any action including the filing of
a report when necessary as mentioned in sub-article (2) shall be guilty of
an offence and upon being found guilty shall be subject to imprisonment
for a period of not less than three months and not more than nine months,
or a to a fine (multa) of not more than five thousand euro (€5,000), or to
both such fine and imprisonment.
(5)
For the purposes of this article and other provisions of this
Act, "significant harm" includes abuse, neglect, harassment, ill treatment,
exploitation, abandonment, exposure, trafficking, fear of violence and
female genital mutilation as defined and provided for in Book First of
the Criminal Code. It also includes being a victim of domestic violence
as defined and provided for in Gender-based Violence and Domestic
Violence Act.
(6)
All reports made according to this article and to whomever
they might have been made, shall be deemed as if protected by
professional secrecy, if not already so protected by any law, and
notwithstanding any other provision of any law said reports shall not be
made accessible to the public, whether in their entirety or in part.
(1)
The Director (Child Protection) shall keep a register
recording therein all reports which he receives in terms of article 9.
(2)
The Director (Child Protection) shall, as soon as possible and
not later than five (5) days from the receipt of a report, determine, on the
basis of the information provided, whether there are or are not sufficient
reasons to believe that the minor is suffering, or is at risk of suffering,
significant harm or is in need of care and protection.
(3)
If the Director (Child Protection) believes that there are
sufficient reasons as referred in sub-article (2), he shall proceed to such
investigations and evaluations as he considers necessary to determine
whether the minor is in need of care and protection, and if he decides that
there are no such reasons he shall close the report and provide detailed
reasons for his decision.
(4)
The Director (Child Protection) shall conclude the
investigations and evaluations referred to in sub-article (3) within sixty
working days and such period shall start running from the date of the
decision of the Director (Child Protection) that the minor is suffering, or
is at risk of suffering, significant harm
Provided that said period may, for good reason and due to
the particular circumstances of the case, be extended by the Director
(Child Protection) for an additional period of sixty (60) working days.
(5)
When the Director (Child Protection) decides that the minor
needs care and protection he shall take all necessary measures to protect
that minor, which, without prejudice to any other action which the
Director (Child Protection) deems appropriate to take, may include one
or more of the hereunder
(a) recommending the provision of support services for
the minor while considering the particular needs of the same and
ensuring that such recommendations are applied;
(b)
recommending the provision of support services for
the parents of the minor or for any other person which seems to
have responsibility for that minor, and ensuring that such
recommendations are applied;
(c)
issuing of parental responsibility guidelines;
(d)
applying to the Court for it to decree an emergency
order;
(e)
applying to the Court so that it may decree an
appropriate protection order for the minor;
(f)
identifying the provision of out-of-home care
including if a next-of-kin placement is available unless this is
manifestly against the best interest of the minor. All efforts should
be made to keep a minor mother and her child together and to
keep siblings together
Provided that in order to place a minor with a
next-of-kin, the Director (Child Protection) shall have the
authority to request the criminal conduct of that next-of-kin and
of any other adults residing with him or her, immediately from
the competent authority.
(g)
inform the Executive Police of a report so that
further investigations are undertaken in any case involving the
abuse or abandonment of a minor; or
(h)
inform the Executive Police of any criminal offence
for which the Executive Police may ex officio initiate criminal
proceedings according to law.
In the exercise of his functions according to article 10, the
Director (Child Protection) shall have the power to
(a)
enter and inspect the premises where the minor is
being kept;
(b)
speak with the minor;
(c)
request any relevant information from any person
as may be strictly required for the purpose of the investigation;
(d)
enquire with any person who appears to him to be
involved in the care of the minor on any matter relating to the
investigation;
(e)
obtain photographs, films and any other sort of
recording as evidence; and
(f)
obtain any other sort of document, as defined in the
Interpretation Act, as evidence.
(1) The Director (Child Protection) shall be entitled to
request and receive the name, address and, or contact number of a
subscriber or registered user from a service provider of publicly
available electronic communication services or of a public
communications network where this information is strictly necessary
for the purpose of enabling the Director (Child Protection) to exercise
his functions and responsibilities pursuant to the Act.
(2)
The requests made by the Director (Child Protection)
pursuant to sub-article (1) shall be duly documented and reasoned. The
data protection officer shall be consulted and involved in a timely
manner in order to monitor compliance with Regulation (EU) 2016/
679. (3)
The Director (Child Protection) shall implement appropriate
technical and organisational measures and procedures to ensure a high
level of confidentiality and data security in relation to the processing
of personal data pertaining to natural persons.
(1)
When considering what action to take the Director
(Child Protection) shall have regard to the possibility of agreeing to a
social contract to resolve a matter concerning a minor’s need for care and
protection without having to make an application to the Court to make a
MINOR PROTECTION (ALTERNATIVE CARE)
protection order.
(2)
The social contract mentioned in the foregoing sub-article
shall be signed by the parties and shall take effect upon their signature.
(3)
The Director (Child Protection) may agree to those terms and
conditions as he may think fit and, in particular, the Director (Child
Protection) may agree to terms and conditions on
(a)
treatment for substance abuse and other vices
during the operative period of the social contract;
(b)
treatment for a person with problems of abusive
behaviour;
(c)
therapeutic interventions or treatment of
a
psychological nature or any other form of medical treatment;
(d)
substance abuse testing;
(e)
courses aimed at improving the parental skills of
the parents of the minor;
(f)
the provision
of
support
and
therapeutic
interventions for the minor;
(g)
the provision of medical and educational assistance
to the minor;
(ga)
if necessary, the temporary placement of the
minor in alternative care in accordance with article 68(12) of
this Act;
(h)
the method of monitoring compliance with the
social contract;
(i)
the involvement and obligation of professionals in
preparing the care plan, as would be in the best interest of the
minor; and
(j)
the involvement of the extended family, and of
other important persons in the life of the family, in the planning
and implementation of the care plan, as in the best interest of the
minor
Provided that the social contract shall specify the
period during which it will be in force and also the circumstances
in which the Director (Child Protection) may file an application
for any one or more of the orders mentioned in article 19
Provided further that the social contract shall not
provide for the assignment of parental responsibilities for a minor.
(4)
Upon signature, the Director (Child Protection) may appoint a
key social worker and shall notify the Director Alternative Care
(Children and Youths) so that the latter appoints a key social worker to
follow the development and interests of the minor in accordance with the
social contract and for such purpose the key social worker shall monitor
the compliance of the parties with the social contract.
(5)
The Director (Child Protection) may also notify other entities
so that these provide the parents with support according to the social
contract.
(6)
The social contract shall remain in force for the period
specified therein unless the Director (Child Protection) terminates it
before the expiry of such period by notifying the other parties
accordingly.
(7)
When the Director (Child Protection) seeks to amend the
social contract, the Director (Child Protection) may change any condition
of the social contract by agreement in writing with all the parties.
(8)
The Director (Child Protection) shall always consider the
views of the minor if considered to have sufficient understanding.
(1)
For the purpose of drawing up a care plan according to
the provisions of this Act the Director (Child Protection) shall hold a
conference among those professionals following the parents and, or the
minor and any other person involved in the care and protection of the
said minor so as to establish a care plan.
(2)
The care plan may include the following
(a)
the relevant identification particulars of the minor;
(b)
the reasons for requesting a protection order;
(c)
the aims of the care plan, and, if applicable, those
of the placement of the minor in alternative care;
(d)
the treatment and assistance that the parents should
receive with a view to mitigate or revoke the effects of the
minor’s protection order;
(e)
the place and frequency of contact of the minor
with his family;
(f)
if applicable, the place where the minor will reside;
(g)
matters relating to the education,
health,
maintenance and well-being of the minor; and
(h)
a copy of any relevant decision given by the Court.
(3)
A care plan shall in all cases be drawn up with the
participation of the minor, if considered to have sufficient understanding,
and with the participation of any other person or entity as the Director
(Child Protection) may deem appropriate in the circumstances of the
case
Provided that the officers and professionals who shall draw up
the care plan shall, if the minor is considered as having sufficient
understanding, indicate the methodology used to establish the views and
wishes of the minor and their recommendations thereon.
(4)
A care plan shall be filed by a note in the acts of the
proceedings for the case relating to a protection order.
(5)
Where a care plan is in effect and the consent of a parent is
required for something necessary to avoid significant harm to the health
or education of the minor, and such parent withholds said consent
without good reason, the Director (Child Protection) or any other entity
which the Minister may order by notice in the Gazette may act without
such parental consent and take any decision in the best interest of the
minor.
(6)
Any interested party may, by application to the Court, request
that any decision taken in accordance with sub-article (5) be cancelled,
revoked or changed and the Court shall hear and decide the application
without delay.
(7)
The care plan shall be subject to reviews by the Review Board
in accordance with the provisions of this Act.
TITLE II
OF THE JUVENILE COURT
Sub-title I
OF PROCEEDINGS BEFORE THE JUVENILE COURT
The Court shall have competence to hear and decide all
cases which according to this Act are not within the competence of any
other organ established under it and for such purpose, the Juvenile
Court shall be deemed to be a Court of Magistrates with civil
competence and shall be deemed to have civil jurisdiction with regard
to taking cognizance of proceedings relating to children and young
persons in terms of this Act
Provided that in any case heard by the Court, the Director
(Child Protection) shall have the right to file notes on matters relevant to
a given proceeding, which notes may also include notes of submissions
or for the filing of relevant evidence.
(1)
The Court shall hear all cases brought before it by
virtue of this Act in those premises as are prescribed by the Minister,
through regulations, to serve as the building or buildings where the
Juvenile Court shall sit in Malta and in Gozo.
(2)
The Court shall appoint the date and time in which the
minor shall give evidence and for such purpose it shall convene to hear
the minor in those premises as are prescribed by the Minister, through
regulations, to serve as Children’s House.
(3)
Without prejudice to the provisions of this Act, the Minister
may also by regulations prescribe the procedure to be adopted in all cases
heard in a Children’s House.
Save for the Director (Child Protection), parties to Court
proceedings as well as their advocates or legal procurators who shall
have free and full access to the acts and documents of the proceedings,
the acts of the proceedings and documents thereof shall not be accessible
to third parties without the permission of the Court, which may provide
such relevant parts of the acts of the proceedings according to the
circumstances of the case and if in the best interest of the minor.
(1)
Before taking a decision in proceedings affecting a
minor and if the Court considers the minor to be of sufficient
understanding, it shall, always acting according to his best interests, take
into consideration the wishes and views of the minor, as well as all the
circumstances of the case, so as to
(a)
ensure that the minor has received all relevant
information, including but not limited to information in relation to
procedures which have been, or may be, taken with respect to the
minor and the reasons therefor;
(b)
consult with the minor in a manner appropriate to
his understanding, unless the Court deems it reasonably clear that
this is contrary to the best interests of the minor;
(c)
give the minor the opportunity to express his views
and consider them
Provided that the Court shall, if it did not do so on the day
appointed for the hearing of the case, hear the minor by not later than the
second sitting in the hearing of the case.
(2)
Where the Court does not itself consult the minor it shall
ensure that the person consulting the minor has received appropriate
training to make such consultations, and in the case of unaccompanied
minors the Court shall also ensure that the person consulting such minors
has the appropriate linguistic and cultural sensitivity.
(3)
The person performing the consultation in accordance with the
foregoing sub-article shall prepare a report on the same consultation and
shall file it in the acts of the proceedings in such manner and within such
time as the Court may order.
(4)
The views of the minor which can be determined or, when
such views cannot be determined, the reasons therefor, shall be noted in
the acts of the proceedings by the Court.
(5)
The views of the minor shall be determined with sensitivity
and in a manner which does not cause harm to the minor.
(6)
In any proceedings before the Court, the Court shall consider
(a)
the views of the minor, if the minor is considered to
have sufficient understanding;
(b)
the physical, emotional and educational needs of
the minor and the capability of the parents, or of other appropriate
persons, to contribute towards those needs;
(c)
the effect that any change in circumstances may
have on the minor;
(d)
the age, background and characteristics of the
minor that the Court deems relevant;
(e)
the harm that the minor has suffered or may suffer;
and
(f)
any other relevant matter.
(7)
The Court shall appoint the time in which the minor shall give
his evidence in accordance with sub-article (8) and for such purpose it
shall hear the minor in premises prescribed in accordance with article 15.
(8)
Evidence from the minor shall be recorded by experts who
shall be nominated by the Minister so as to form part of a list of experts
to be appointed by the Court in cases of such a nature, and such evidence
shall, as much as possible, be recorded in one sitting while also ensuring
that the rights of all the parties involved are safeguarded.
(9)
For the cross-examination of the minor by the lawyers of the
parties, the questions to the minor shall be made to the experts mentioned
in sub-article (8) in front of the Court and the Court shall ensure that the
evidence required is gathered according to sub-article (8) and the law on
evidence
Provided that in exceptional cases only, a party to the
proceedings may require that the Court hears the minor again for the
purposes of an additional cross-examination and for such purposes the
Court shall proceed to such hearing in the same manner as provided in
this sub-article.
(10) The Minister may, by regulations, prescribe the procedure for
the appointment of experts referred to in sub-article (8).
In all proceedings before the Court, the Court shall ensure
that all parties are duly represented before proceeding to hear the
parties and, or their evidence and shall proceed to appoint curators to
represent parties that cannot be traced, located, found and notified or
are incapable of standing as parties in the proceedings, and this as
provided in the proviso to article 24(4) of this Act.
Sub-title II
OF PROTECTION ORDERS FOR MINORS
(1)
The Director (Child Protection) may, by application,
request that the Court issue a protection order for a minor in accordance
with what is provided in article 19.
(2)
The application referred to in sub-article (1) shall, besides the
relevant particulars identifying the minor and, as applicable, the parents
of the minor, include
(a)
facts relevant to the case and requests as included in
the application;
(b)
a report containing the conclusions of the relevant
investigations and evaluations;
(c)
when possible, an indication of another available
form of care;
(d)
those other documents necessary for sustaining the
requests;
(e)
a request for the issuing of a protection order; and
(f)
when required, a request to the Court for the
provision of immediate care for the minor as he deems
appropriate according to the circumstances of the case.
(3)
The Court shall issue any provisional measure relevant to the
application in the shortest time possible and such period shall in no
case exceed that of forty-eight hours and shall order the notification of
the application on the parent or parents depending on the
circumstances of the case, who shall have until the date of the first
sitting to file a reply.
(4)
Upon receiving an application according to this article, the
Court shall appoint a Children’s Advocate and it shall immediately
thereafter appoint the application to be heard within ten working days,
while also ordering the immediate notification of the date of the hearing
to the Director (Child Protection), to the parent or parents of the minor
depending on the circumstances of the case, to the Children’s
Advocate as appointed by it, and, if applicable, to the tutor and, or
curator.
Provided that the service mentioned in sub-article (4)
shall take place immediately by court executive officers in
accordance with article 67 of the Code of Organization and Civil
Procedure
Provided further that the Court in the first hearing shall appoint
curators in accordance with article 930 of the Code of Organization
and Civil Procedure to represent the parent or parents of the minor
depending on the circumstances of the case, when such parent or
parents have not been served by the date of the hearing, given that the
Court would have before it a negative certificate of service in
accordance with article 188 of the Code of Organization and Civil
Procedure and the parent or parents can be traced, located or found and
notified. The Court shall also proceed to appoint curators without the
need for an attempt of notification when from the circumstances of the
case, it is not possible for the parent or parents to be traced, located or
found or are incapable of being parties to the proceedings. The
procedure of issue of banns as required by article 931 of the Code of
Organization and Civil Procedure shall not hinder the hearing as set by
article 18(4). Any person appearing to the banns may be confirmed as
curator of the parents by the Court in accordance with article 933 of
the Code of Organization and Civil Procedure.
(5)
In the first sitting, the Court shall see that all parties have
been notified or are represented in terms of article 18(4) and shall issue
provisional measures in relation to the residence, care and custody and
aspects relating to the minor.
(6)
In the first sitting or in the second if a curator is appointed in
terms of sub-article (4), the Court shall hear the requests of the
Director (Child Protection), the evidence sustaining such requests, and
if it deems appropriate, the parent or parents of the minor depending
on the circumstances of the case, the Children’s Advocate and, if
applicable, the tutor and, or curator
Provided that when the parent or parents of the minor
depending on the circumstances of the case or their curator ad litem
believe that they may counter the allegations in their regard by
bringing forward witnesses and providing submissions, they shall be
allowed to summon such witnesses and submit any type of relevant
proof or submission
Provided further that all reasonable efforts shall be made for
the Court to hear all the evidence in that sitting however for good
reason, the Court can continue to hear the evidence in subsequent
sittings.
(7)
When the Court has heard all necessary evidence, and when
necessary the oral submissions of the parties and is satisfied that the
requests are justified, the Court shall adjourn the case to another date
which is not later than two (2) months from the date of that hearing,
and the Director (Child Protection) shall, in the meantime, till such
date, prepare a care plan
Provided that when the application is for a care order, the
Court may summon and consult with the Director Alternative Care
(Children and Youths) to determine the premises in which the minor
shall reside while the care plan is being prepared
(8)
When the care plan is filed in terms of article 13(4), it shall
be immediately notified to the parent or parents of the minor
depending on the circumstances of the case or to the curator
representing them, who shall have till the date of the hearing set by the
Court to file a reply.
(9)
When the Court is satisfied that the care plan is appropriate for
the circumstances of the case, the Court shall give its final decision on
the application referred to in sub-article (1) within two (2) months from
the last sitting by authorising and imposing the relevant orders, and this
without prejudice to any other conditions which the Court deems
appropriate to impose and this inclusive of entrusting the care and
custody of the minor to third parties
Provided that when the court authorises an order or orders as
recommended by the Director (Child Protection) in accordance with this
article, a copy of the final decision shall be notified to the parties
and the case shall be referred to the Review Board by not later than five
(5) working days.
(10) When the Court issues a welfare care order of a minor in
accordance with this Act, the Police shall be informed by the Director
(Child Protection), so that the minor protected by the same welfare
care order shall be listed on the Schengen Information System (SIS)
and said minor shall be allowed to travel out of Malta and back to
Malta only with the written consent of the person or entity vested with
his care and custody, in accordance with Article 32 of Regulation (EU)
2018/1862 of the European Parliament and of the Council of 28
November 2018 on the establishment, operation and use of the
Schengen Information System (SIS) in the field of police cooperation
and judicial cooperation in criminal matters, amending and repealing
Council Decision 2007/533/JHA, and repealing Regulation (EC) No
MINOR PROTECTION (ALTERNATIVE CARE)
1986/2006 of the European Parliament and of the Council and
Commission Decision 2010/261/EU.
(1)
In those cases in which the Director (Child Protection)
acts for the issuing of a protection order for a minor, the Court may
authorise any one or more of the following orders
(a)
(i)
a welfare care order entrusting the care and
custody of the minor to such person or entity that operates in
social welfare which the Court deems appropriate when such
minor has been deemed to have suffered or have been at risk of
suffering significant harm or has been deemed to be in need of
care and protection or has been deemed to be in need of
permanency as provided for in this Act;
(ii)
a correctional care order when the minor exhibits
very challenging behaviour that is or has been harmful to self or
others or is in need of protection and control which the minor is
unlikely to receive otherwise
Provided that when the minor’s need for
protection and control necessitates that the minor’s freedom of
movement is restricted, the Court shall review the
circumstances and progress of the minor at least once a month,
shall hear the professionals working with the minor and,or
review their report, and may vary the conditions imposed as it
deems appropriate.
(b)
a supervision order placing the minor under the
supervision of the entity identified by the Director (Child
Protection) for a period specified by the order and according to
those conditions which the Court deems appropriate to impose,
including the granting of parental responsibility or aspects thereof
to such person or persons as the Court deems appropriate;
(c)
a treatment order by which the parent or parents of
the minor or the person caring for the minor or the minor are
ordered to
(i)
receive treatment for the abuse of substances
or alcohol abuse; or
(ii)
follow programmes to address domestic
violence; or
(iii) follow parenting skills training; or
(iv) receive inter-relational therapy; or
(v)
receive psychiatric or psychological care; or
(vi) receive any other treatment or assistance
which the Court deems appropriate after
having heard experts in the fields; or;
(d)
a removal order against the author of significant
harm to the minor from the place of residence of
the minor and, without prejudice to any other
provision of any other law, such order may also
provide for the protection of the minor.
(2)
Before giving its decision, the Court shall consider, in so far as
possible
(a)
the views of the minor, when deemed to have
sufficient understanding;
(b)
the views of the parent or parents of the minor
depending on the circumstances of the case;
(c)
the views of the tutor and, or curator;
(d)
the capability of the parents to safeguard the well-
being and harmonious development of the minor;
(e)
the nature and quality of the attachment between
the minor and his family;
(f)
the harm that was suffered, that is being suffered or
which may be suffered by the minor;
(g)
the length of time during which the family of the
minor has been receiving support and treatment services;
(h)
the degree of vulnerability of the minor;
(i)
the cultural, linguistic and religious background of
the minor; and
(j)
the relationships of the minor with his siblings.
(3)
For the purposes of sub-article (1)(a), the Court shall consider
(a)
whether there are deficiencies in the everyday care
of the minor or deficiencies in terms of the personal contact and
security needed by a minor of his age and development;
(b)
whether the minor who is ill, has a disability or in
need of special assistance is receiving the treatment or specialised
care which he requires;
(c)
whether the minor is at risk of being abandoned;
and
(d)
whether, generally, the minor is at risk of suffering
significant harm.
(4)
In all cases where provision is made for the assignment of any
parental responsibilities to any person other than the parents of the minor,
the Court shall give preference to the family of the minor, unless the
Court holds that it is reasonably clear that it would be against the best
interests of the minor.
(1)
When the Director (Child Protection) has reasonable
information which leads him to be convinced that the minor is suffering
significant harm or when no legal guardian is present to care for the
minor, the Director (Child Protection) may, with the assistance of the
Executive Police, immediately proceed towards the removal of the minor
from the place in which such significant harm is being occasioned, and
this without any need of any form of authorisation.
(2)
Without delay, and in any case not later than forty-eight (48)
hours of having taken action according to sub-article (1), the Director
(Child Protection) shall file an application with the duty Magistrate for
the provisional validation or revocation of the removal of the minor as
therein referred
Provided that the duty Magistrate shall appoint a Children’s
advocate upon receiving the application so that he may follow the
proceedings thereof.
(3) The provisional decree given by the Magistrate according to
this article shall be immediately notified to the Director (Child
Protection), the Executive Police, the appointed Children’s Advocate,
the Director Alternative Care (Children and Youths), the parent or
parents of the minor depending on the circumstances of the case, and,
if applicable, to the tutor and, or curator
Provided that when at the time of the removal of the minor
there is only one parent known to or traced by the Director (Child
Protection), the proceedings shall be filed against that known parent
and the duty Magistrate shall appoint curators in terms of article 930 of
the Code of Organization and Civil Procedure to represent the other
parent. The procedure by issue of banns as required by article 931 of
the Code of Organization and Civil Procedure shall not hinder the
hearing as set by sub-article (6) of article 20
Provided further that in instances where both parents are
incapable of being traced, located or found or are incapable of being
parties to the proceedings, the duty Magistrate shall appoint curators in
terms of article 930 of the Code of Organization and Civil Procedure
to represent both parents. The procedure of issue of banns as required
by article 931 of the Code of Organization and Civil Procedure shall
not hinder the hearing as set by sub-article (6) of article 20.
(4)
The application referred to in sub-article (2) shall include a
short but clear summary of the facts of the case and a request to the Court
to confirm the decision of the Director (Child Protection).
(5)
Following the provisional decree given in accordance with
sub-article (2), the acts of the proceedings are to be immediately sent to
the Court so that it may proceed with the case.
(6)
The Court shall appoint the hearing of the application within
ten working days from when it received the acts of the proceedings.
(7)
The Court may order the Director (Child Protection) to make
the required investigations so as to determine which action should be
taken to safeguard the well-being of the minor.
(8)
Immediately upon being informed by the Director (Child
Protection) of the need to remove a minor from a location of risk in
accordance with this article, the Director Alternative Care (Children and
Youths) shall place the minor in alternative care for such period as other
investigations in accordance with article 10 are pending.
(9)
Any investigation according to this article shall be concluded
within thirty working days from the date of the first hearing
Provided that for a good reason and upon the filing of an
application, such period may be extended by the Court for an additional
period of ten working days.
(10) Upon concluding an investigation, the Director (Child
Protection) shall file a report to the Court in which he explains which
action he believes is necessary in relation to the minor and the reasons
therefor.
(11) In addition to the report mentioned in sub-article (10), the
Director (Child Protection) shall prepare and file a care plan which
includes recommendations on which protection order he deems to be as
being in the best interests of the minor.
(12) The Court shall, as soon as it receives the report and the care
plan mentioned in sub-articles (10) and (11), set a date for the hearing of
the Director (Child Protection), the parent or parents of the minor
depending on the circumstances of the case, the Children’s Advocate, the
tutor and, or curator if applicable, and any other person or persons which
the Court deems appropriate, which date shall not be later than ten (10)
working days from the filing of the report and the care plan
Provided that the care plan shall be immediately notified to
the parent or parents of the minor depending on the circumstances of
the case or to the curators representing them, who shall have till the
date of the hearing set by the Court to file their reply.
(12A) When the parent or parents of the minor, depending on the
circumstances of the case, or their curator ad litem, believe that they may
counter the allegations in their regard by bringing forward witnesses and
providing submissions, they shall be allowed to summon such witnesses
and submit any type of relevant proof or submission in a sitting held for
such purpose
Provided that all reasonable efforts shall be made for the
Court to hear all the evidence in that sitting, however for good reason,
the Court may continue to hear the evidence in subsequent sittings.
(13) After having considered the report, the care plan , all the
evidence and when necessary the submissions of the parties, the Court
shall authorize or reject the order or orders recommended by the Director
(Child Protection) in the care plan, and also decide on the allocation of
parental responsibilities to any person as it may deem appropriate
Provided that if necessary, the Court may adjourn the case to
another date within two (2) months from the date of that hearing to
give such decision
Provided further that when the Court decides on the order or
orders recommended by the Director (Child Protection) in accordance
with this article, a copy of the final decision shall be notified to the
parties and the case shall be referred to the Review Board by not later
than five (5) working days.
(1)
Any person who comes in contact with any person
who claims to be an unaccompanied minor shall refer that minor to the
Principal Immigration Officer who shall thereupon notify the Director
(Child Protection) so that the latter registers such minor and issues an
identification document for such minor within seventy-two (72) hours
Provided that in the exercise of his functions in relation to
unaccompanied minors according to this Act, the Director (Child
Protection) shall require the co-operation of the Chief Executive
Officer of the Agency for the Welfare of Asylum Seekers established
according to regulation 3 of the Agency for the Welfare of Asylum
Seekers Regulations
Provided further that such co-operation shall take place in
accordance with an agreement which may be reached between the
Director (Child Protection) and said Chief Executive Officer, which
agreement may include a delegation of responsibilities and powers
given to the Director (Child Protection) under this Act.
(2)
Immediately after the registration of the minor and the
issuing of appropriate identification documents, the Director (Child
Protection)) shall request the Court to provide any provisional measure
in terms of article 18(3) in regards to the care and custody of the minor
according to the circumstances of the case and in the best interests of
the minor and shall appoint a representative to assist the minor in the
procedures undertaken in terms of the International Protection Act.
(3)
The person or entity that is entrusted with the care and
custody of the minor and the Court appointed representative shall be
responsible for assisting and supporting the unaccompanied minor and
in particular they shall
(a)
identify the persons or entities which may be
involved in the care, custody and protection of the minor;
(b)
coordinate the efforts of such persons or entities
as identified by them;
(c)
ensure that the minor is offered care,
accommodation, education and medical care, as appropriate and
without delay and whenever possible the minor shall not be
placed in detention or in accommodation with persons who are
not minors;
(d)
ensure that the minor has suitable legal and
judicial representation and assistance with regards to his
residence status, his request for asylum, or for any other legal or
administrative procedures, including those for the
administration of his estate;
(e)
ensure that all decisions in relation to the minor
are taken in his best interests;
(f)
submit the views of the minor in any court or
before any administrative authority;
(g)
provide explanations to the minor on the
procedures that would be underway and to provide the minor
with any other relevant information; and
(h)
accompany and, or represent the minor during the
age assessment process done by the Agency for the Welfare of
Asylum Seekers and any other investigations and evaluations
carried out in terms of sub-article (4).
(4)
The Director (Child Protection) shall refer the
unaccompanied minor to the competent authorities so that the latter
may undertake those investigations and evaluations as they deem
appropriate to determine whether the minor is in fact an
unaccompanied minor and to trace his family, should this be in the best
interests of the minor and is not prejudicial to the fundamental rights
of the same unaccompanied minor.
(5)
Upon receiving the conclusions of the investigations and
evaluations from the competent authorities and these establish that the
applicant is in fact an unaccompanied minor, the Director (Child
Protection) shall, by application, request the Court to issue a protection
order according to this Act and shall prepare a care plan that shall be
filed with the said application
Provided that when the investigations and evaluations from
the competent authorities establish that the applicant is not an
unaccompanied minor, the Director (Child Protection) shall, by
application, request the Court to revoke its first decree and to provide
according to the circumstances of the case.
(6)
If the Court is satisfied that the indicated minor is in fact an
unaccompanied minor and is satisfied that the care plan is appropriate
in the minor’s circumstances, the Court shall authorise a protection
order and may impose other conditions which the Court may deem
appropriate including entrusting the minor in the care and custody of
the Chief Executive Officer of the Agency for the Welfare of Asylum
Seekers or such other competent authority or entity which the Court
deems appropriate and this without the need to appoint a hearing.
(7)
If the Court is not satisfied that the indicated minor is in fact
an unaccompanied minor or is not satisfied that the care plan is
appropriate, it shall appoint the hearing of the application within ten
(10) working days and in that same decree, the Court shall appoint
curators in terms of article 930 of the Code of Organization and Civil
Procedure to represent both parents. The procedure of issue of banns
as required by article 931 of the Code of Organization and Civil
Procedure shall not hinder the hearing
Provided that in that hearing the Court shall hear the
application, the evidence in support of such application, the person or
entity entrusted with the care and custody of the minor and the
appointed representative, the curators ad litem and any other person or
persons which the Court deems appropriate and shall then pass on to
give a final decision on the protection order and may impose any other
conditions which the Court may deem appropriate including entrusting
the minor in the care and custody of the Chief Executive Officer of the
Agency for the Welfare of Asylum Seekers or such other competent
authority or entity which the Court deems appropriate.
(8)
Upon issuing a protection order as mentioned in sub-article
(7), the Court shall thereupon refer the case to the Review Board for
revision according to the provisions of this Act unless the care plan
filed with the application provides for the relocation of the minor
within the first four (4) months from the authorisation of the protection
order
Provided that when the care plan provides for the relocation
of the minor, the Director (Child Protection) shall, by not later than
four (4) months from the authorisation of the protection order, file an
application in court to request the Court either to revoke the protection
order and authorize the relocation or else to refer the case to the
Review Board for revisions according to the provisions of this Act
Provided further that when the case is referred to the
Review Board according to the first proviso, the Review Board shall
appoint the case for its first revision by not later than ten (10) working
days.
(1)
A protection order shall remain in force until the minor
reaches the age of eighteen years or is revoked by the Court.
(2)
The Court may revoke a protection order upon receiving a
recommendation to do so, given by the Review Board in accordance with
article 33(5) or as provided by other provisions of this Act.
(3)
Before revoking an order in accordance with the foregoing
sub-article, the Court shall consider, as applicable
(a)
the recommendation by the Review Board and the
reasons given for it;
(b)
the views of the minor if considered to have
sufficient understanding;
(c)
the views of the Children’s Advocate;
(d)
the views of the the parent or parents depending
on the circumstances of the case of the minor;
(e)
the views of the key social worker;
(f)
the views of the alternative carer;
(g)
the views of the tutor and, or curator; and
(h)
the views of any other person which the Court
deems appropriate.
(4)
When the Court determines that there are sufficient reasons to
revoke a protection order, it shall refer the case to the Review Board in
order to prepare a reintegration plan, and for such purpose the provisions
of article 35 shall apply mutatis mutandis.
(5)
When the Court determines that there are insufficient reasons
to revoke a protection order, it shall order that the revisions by the
Review Board shall continue and it shall give the reasons why.
(6)
For the purposes of sub-articles (4) and (5), the Court shall
consider
(a)
the age of the minor;
(b)
the wishes of the minor and the consideration it
should give to such wishes in accordance with the level of
maturity of the minor;
(c)
the length of time the minor has been under the care
of his current alternative carers;
(d)
the bond of the minor with his parents and his
current alternative carers;
(e)
the capability of the parent or parents depending
on the circumstances of the case of the minor to provide for an
adequate level care for the minor and if they can provide
stability, predictability and permanency to the minor which is
relational, physical and legal; and;
(f)
the risk of psychological harm which the minor
may suffer if his current care arrangements are changed or
revoked.
(1)
The Court may, by decree and given the circumstances
of the case, order that an alternative permanency plan is in the best
interest of the minor.
(2)
The alternative permanency plan shall be aimed towards
reducing or revoking the effects of the minor’s protection order and it
shall provide for a permanency which is relational, physical and legal.
(3)
The Court, when from the circumstances of the case it is
clear that there are no reasonable prospects for the re-integration or re-
unification of the minor with his parent or parents, may issue a decree
as mentioned in sub-article (1) upon an application by the Director
(Child Protection) which is made concurrently with a request for a
protection order, and with such an application the Director (Child
Protection) shall also file an alternative permanency plan for the
authorisation of the Court
Provided that the Court may also issue a decree as mentioned
in sub-article (1) upon a recommendation of the Review Board in
accordance with article 33(7) and in such case, the alternative
permanency plan shall be prepared by the Director Alternative Care
(Children and Youths) and filed for the authorization of the Court with
the recommendation of the Review Board.
(4)
Before issuing a decree according to this article the Court shall
consider the views and wishes of the minor if he is deemed to have
sufficient understanding, as well as the views of any other person or
entity which the Court deems relevant to safeguard the views and wishes
of the minor.
(5)
When the Court issues a decree as mentioned in sub-article
(1), it shall order that a copy of the decree be notified to all the parties,
including the Directorates, the Children’s Advocate, the parent or
parents of the minor depending on the circumstances of the case, the
tutor and, or curator if applicable and the Review Board.
(6)
Any revision of the alternative permanency plan shall be made
at least once a year through a report by the key social worker that is to be
filed with the Review Board.
(7)
For the purposes of the foregoing sub-article, the Review
Board shall, whenever it deems it appropriate to do so, call upon any
person or entity to appear before it and to submit any document it may
require
Provided that the Review Board shall have the power to hear
the minor at any time in which the alternative permanency plan is in
force in order to verify the well-being of the minor.
(1)
In accordance with the provisions of this article and
upon an application by the Director Alternative Care (Children and
Youths) or any other person having an interest, the Court may issue a
decree ordering that a minor subject to a protection order may be freed
up for adoption and it may do so even without the consent of his
parents
Provided that notwithstanding any other provision of any
other law, an adoption following an order in accordance with this article
may be open and without age restrictions.
(2)
Together with the relevant particulars identifying the minor
and, if applicable, the parents of the minor, the application mentioned in
the foregoing sub-article shall also include the reasons for the request
and, if the Director Alternative Care (Children and Youths) has
identified them, the particulars identifying the prospective adoptive
parents
Provided that if the alternative carers are amongst the persons
identified as prospective adoptive parents, the Directorate of Alternative
Care (Children and Youths) shall, if this is in accordance with the best
interest of the minor, give preference to such carers.
(3)
Together with the application, the Director Alternative Care
(Children and Youths) shall file an updated care plan providing
recommendations for the continued care of the minor either with the
prospective adoptive parents or with alternative carers until other
carers are identified according to the care plan and the transition into
their care when these have been identified, in terms of the provisions
of this Act or of any other law regulating adoption.
(4)
The application mentioned in this article shall be notified to
the parent or parents of the minor depending on the circumstances of
the case who shall have twenty days from such notification to file their
reply
Provided that when the Court has three negative certificates
of service in accordance with article 187 and 188 of the Code of
Organization and Civil Procedure and, or it is not possible for the
parent or parents, depending on the circumstances of the case, to be
traced, located or found or are incapable of being parties to the
proceedings, the Court shall proceed to appoint curators in accordance
with article 930 of the Code of Organization and Civil Procedure to
represent the interests of the parent or parents of the minor depending
on the circumstances of the case. The procedure of issue of banns as
required by article 931 of the Code of Organization and Civil
Procedure shall not hinder the hearing.
(5)
Following the filing of the reply mentioned in sub-article (4)
or the failure to file such reply within the term therein given, the parties
shall be notified with the date of the hearing of the application.
(6)
Before issuing a decree ordering that the minor under
alternative care be freed up for adoption, the Court shall
(a)
hear and ascertain the views and wishes of the
minor if he is deemed to have sufficient understanding;
(b)
hear every person entrusted with any form of care
or custody of the minor to be freed up for adoption and
professionals following and supporting such minor;
(c)
hear the parent or parents of the minor depending
on the circumstances of the case;
(d)
hear the Children’s Advocate, the key social worker
and any other person it deems relevant
Provided that, unless there are good reasons that
do not allow for such, the same Children’s Advocate that had
been appointed to represent the minor during the proceedings
for the authorisation of the protection order, should represent
the minor before the Court during the hearing appointed by the
Court in terms of sub-article (4);
(e)
consider whether the freeing up for adoption is in
the best interests of the minor;
(f)
consider whether there are reasonable prospects for
the parents to become capable of taking care of the minor in the
foreseeable future; and
(g)
consider the thoughts of the parent or parents
depending on the circumstances of the case on whether the
minor should be freed up for adoption
Provided that the fact that the consent of the parents is lacking
shall not, by itself, constitute an obstacle for the minor to be given up for
adoption.
(7)
When the Court issues a decree ordering that a minor shall be
given up for adoption it shall give its reasons for such a decision.
(8)
In every case in which the Director Alternative Care
(Children and Youths) identifies the prospective adoptive parents in its
application the Court shall refer the decree, together with the application,
to that court having the power to issue decrees for adoption and for such
purposes the provisions on adoption in the Civil Code shall apply mutatis
mutandis and without prejudice to the provisions of this Act.
(9)
Any aggrieved party may file an appeal in accordance with
article 66 of this Act.
Sub-title III
OF THE CHILDREN’S ADVOCATE
(1)
Without prejudice to the functions of the Children’s
Advocate under any other law, the Children’s Advocate shall
(a)
provide legal assistance and advice to the minor;
(b)
submit the views of the minor in any court or with
any administrative body as relayed to him by the key social
worker or by an expert on minor protection as appointed by the
Court for said purpose;
(c)
provide explanations to the minor on the possible
consequences should they conform to his or her wishes; and
(d)
provide the minor with any relevant information
Provided that the Children’s Advocate shall provide the
minor with all the relevant explanations and information as
mentioned in paragraphs (b) and (c) only if the minor is deemed to
have sufficient understanding.
(2)
The Children’s Advocate shall receive such relevant training
so as to effectively represent and safeguard the views and wishes of the
minor, as may be prescribed by regulations, from time to time, by the
Minister responsible for justice
Provided that when the Children’s Advocate is to be engaged
in relation to an unaccompanied minor the relevant Children’s Advocate
should also receive or have received training on the problems and issues
affecting migrant children and migrant children seeking international
protection.
TITLE III
OF THE THERAPEUTIC AND SECURE CENTRE
* (1)
There shall be established a Therapeutic and Secure
Centre within that entity mentioned by the Minister by notice in the
Gazette, having the purpose of holding minors with serious behavioural
difficulties in a safe and adequate place so that they be given the required
therapy and assistance in order to return to society and participate in it in
an appropriate manner.
(2)
The prerequisites for a minor to be possibly placed under a
programme within the Therapeutic and Secure Centre are that
(a)
the minor absconded or it is probable that he will
abscond again and, if the minor so absconds it is probable that his
physical, psychological and moral well-being be put at risk; or
(b)
it is probable that the minor behaves in such a
manner as to possibly hurt himself; or
(c)
it is probable that the minor may cause harm to
another person.
* (1)
Without prejudice to any other law, when a social
worker gains knowledge that a minor finds himself in the immediate risk
of significant harm because of difficulties in his behaviour in accordance
with one of the prerequisites mentioned in article 26(2), he shall refer the
case to the Director of the entity mentioned in article 26(1) so that, in the
best interests of the minor, the minor is immediately removed from such
risk and placed under a programme within the Therapeutic and Secure
Centre.
(2)
The decision mentioned in sub-article (1) shall be approved by
the Director (Child Protection) together with the Director of the entity
mentioned in article 26(1) and two senior professionals within the
Agency.
(3)
The Director of the entity mentioned in article 26(1) shall
ensure that the Therapeutic and Secure Centre performs a specialized
evaluation on the risks for the minor within three days from his
immediate placement in the centre, which specialized evaluation shall be
filed together with the application mentioned in sub-article (4).
(4)
When a minor is immediately placed under a programme
within the Therapeutic and Secure Centre according to this article, the
Director (Child Protection) shall file an application to the Court within
three days from such placement and the Court shall validate or revoke the
decision taken without delay.
† When one of the circumstances mentioned in article 26(2) is
present but the circumstances of the case do not require an immediate
placement according to article 27, the Director (Child Protection) may
also file an application so that the Court may authorize the placement of
*Not yet in force.
*Not yet in force.
†Not yet in force.
the minor in the Therapeutic and Secure Centre.
* (1)
Any interested person which disagrees with the
decision to place a minor in the Therapeutic and Secure Centre may file
an application to the Court and request the revocation of that decision.
(2)
The application mentioned in sub-article (1) shall be notified
to the Director (Child Protection) and to the Director of the entity
mentioned in article 26(1) who shall have five working days, or such
period as the Court deems appropriate, to file their reply.
(3)
The Court shall decide on the application mentioned in sub-
article (1) without delay.
(4)
The application mentioned in sub-article (1) shall not suspend
the execution of the decision which is thereby being objected to.
† (1)
In any proceedings of a criminal nature heard before it,
the Court may, in giving its judgement, request the Director (Child
Protection) to consider the case as referred to him so as to consider and
decide on whether the minor should be placed in the Therapeutic and
Secure Centre or not
Provided that when the Director (Child Protection) considers
the case as mentioned in this sub-article, the Director (Child Protection)
shall consult and gain the approval of the Director of the entity
mentioned in article 26(1) and of two senior professionals from the
Agency.
(2)
When it is determined that a case merits the placement of a
minor within the Therapeutic and Secure Centre according to this article,
and there shall also be one of the circumstances mentioned in sub-article
26(2), the Director (Child Protection) shall file an application in the acts
of the proceedings by which he lays out the conditions for said
placement, which conditions shall have to be authorized by the Court for
the placement to take effect.
TITLE IV
OF THE MINORS CARE REVIEW BOARD
(1)
There shall be established a board to be known as the
Minors Care Review Board, which shall consist of seven persons
appointed by the Minister, as follows
(a)
a Chairperson being a warranted advocate having at
least five (5) years professional experience in family law or law as
relating to minors, or being a warranted professional who is an
expert in the social field and who worked in the same field for at
*Not yet in force.
†Not yet in force.
least five (5) years, and whose appointment shall be
communicated for discussion to the Standing Committee on
Social Affairs or to any other committee which takes its place so
that it may be discussed by such committee;
(b)
Repealed by Act XXIX.2024.16.
(c)
one (1) member being a registered social worker
and having at least five (5) years professional experience in social
work;
(d)
one (1) member qualified in family therapy, with
preference being given to persons having at least five (5) years
experience;
(e)
one (1) member being a warranted psychologist;
(f)
one (1) person with professional experience in a
field related to the safeguarding of children which is to be
nominated by the Commissioner for Children; and
(g)
Repealed by Act XXIX.2024.16.
(1A) The Review Board may consult with any other
independent professionals, in accordance to the necessity and the
case in question.
(2)
The members of the Review Board shall hold their position for
a period of four years from their appointment and a membermay be re-
appointed.
(2A) Should the exigency arise, the Minister may appoint an
Additional Board or Boards, which Board or Boards shall be
constituted and shall follow the same procedures in accordance with
the provisions of this Act
Provided that should an Additional Board be constituted, the
Boards shall have, as much as possible, an approximate equal
workload of cases
Provided further that once the cases have been assigned and
the Boards are hearing the revisions, cases shall be followed by the
same Board.
(3)
A Member of the Review Board may be removed from his
position by the Minister if said member is no longer fit to continue in
such a position or is no longer capable of fulfilling or of adequately
fulfilling his responsibilities as a member
Provided that a person shall not qualify or shall be removed
from such Board should it have been established by any Authority or a
Board of Inquiry that such person had not safeguarded the interest of
minors.
(4)
The appointment of any person as a member of the Review
Board as well as his resignation or the termination of said appointment,
as well as any additional function given to the Review Board by the
Minister, shall be notified in the Gazette and shall come into force
immediately
Provided that the failure to publish an appointment or
termination, as applicable, will not adversely affect the validity of such
appointment or termination.
(5)
In every case, the number of members present required for a
quorum shall be four and decisions shall be taken by simple majorityand
in case of a tie, the Chairperson shall exercise a casting vote.
(1)
The Review Board shall have those functions and
powers as given to it by this Act or by any other law, or as may be
prescribed from time to time by the Minister by notice in the Gazette.
(2)
Without prejudice to the powers and functions created under
this Act or any other law, the powers and functions of the Review Board
shall include
(a)
the making of periodical revisions to the care plan
and the making of decisions on the modifications to the care
plan as and when necessary;
(b)
examining written reports by the key social worker;
(c)
the making of recommendations to the Court on the
situation of the minor and his family, inclusive of the actual and
potential capability of the family to take care of the minor, so that
the Court may decide, in the best interests of the minor, whether
the re-integration of the minor with his family is possible or not;
(d)
the making of recommendations to the Court on the
need for a protection order for a minor, as needed from time to
time;
(e)
Repealed by XI.2023.20.
(f)
in the case of disagreement on the care of the minor
in matters of particular importance, the taking of decisions it
deems as being in the best interests of the minor, after having
given its reasons therefor; and
(g)
ensuring that the best interests of the minor are
being safeguarded by all the persons involved in his care.
(h)
the making of decisions in case of disagreements
when there is a placement of a minor in alternative care during a
social contract in accordance with the provisions of this Act,
including on matters relating to the psychological and therapeutic
needs of the minor and the making of decisions whether to
terminate such placement or not and such decisions shall always
be taken in the best interests of the minor;
(i)
the making of decisions in relation to the
suspension of contact for a period longer than a month in
accordance with article 36A(1)(j) of this Act, which decision is
to be notified to all interested parties.
(3)
Without prejudice to the provisions of this Act, and to those
regulations that may be made thereunder, the Review Board shall
regulate its own proceedings
Provided that when there is a need to hear the minor the
Board shall convene in the places established according to article 15 or
in that place that is considered as offering a secure and adequate
environment for the minor.
(4)
Without prejudice to any other law, so as to execute its
functions according to this Act, the Review Board shall have the power
to access any documentation relevant to a case and to request the
assistance of any person, and it may do so whenever the Review Board
deems it helpful in the exercise of its functions.
(5)
The Minister shall designate a person to act as Secretary to the
Review 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 Review Board as may be instructed
by the Chairperson
Provided that the Secretary to the board shall have no vote.
(1)
The first revision of the care plan shall be made by the
Review Board not later than four months from the date when the Board
receives the copy of the final decision as provided in article 18(9), and
subsequent revisions shall thereafter be made at least once a year
Provided that the key social worker or the tutor and, or curator
of the minor, as applicable, may file an urgent request with the Review
Board so that the case is reviewed before the one year term due to the
minor suffering, or being in danger of suffering, significant harm as a
result of the care plan or due to a need of the minor meriting such
review to ensure the minor’s wellbeing
Provided further that, in every case, the Review Board shall
appoint the case for hearing not later than five working days from the
filing of the request and it shall, after having heard the parties involved,
give its decision on such an urgent request.
(2)
The key social worker shall file an update and, or review of
the care plan for the minor with the Review Board during the revisions
by the Board. Said reviewed care plan shall describe the requirements
which the parents must meet so as to re-integrate or re-unite the minor
with said parents, and also establish an alternative permanency plan
Provided that the key social worker shall make every
reasonable effort so that the minor be re-integrated or re-united with his
parents and he shall always do so in accordance with the best interests of
the minor.
(3)
On the day appointed for each revision of the case, the Review
Board shall hear the parents of the minor, the key social worker, the
alternative carer and, if applicable, the tutor and, or curator, so as to
determine if progress is being made in accordance with the care plan
Provided that the Review Board may hear the minor whenever
it deems it in the best interests of the minor to do so, or whenever the
minor expresses his wish to be heard by the Review Board to the key
social worker or to any other person having contact with the minor, and
for such a purpose the board may also decide on a day and time which is
different from the day and time appointed for the revision.
(4)
For the purpose of fulfilling its functions, the Review Board
may also consult with those professionals or other persons which it
deems appropriate and for such a purpose it may also invite those
professionals, or other persons, to attend the meetings of the Review
Board as may be indicated to them.
(5)
The decision of the Review Board may be that there was
sufficient progress justifying the revocation of a protection order or that
there has not been such progress
Provided that in case that there be such progress, the Review
Board shall make a recommendation to the Court so that the latter may,
after having heard the interested parties, order said revocation or not.
(6)
When the Review Board determines that there has not been
sufficient progress to justify the revocation of a protection order, and two
years have passed since the date on which the Board held the first
revision of the care plan within the first four (4) months in accordance
with articles 33(1) of this Act, the Review Board shall determine
whether there are reasonable prospects for the re-integration or re-
unification of the minor with his parents or not.
(7)
If the Review Board determines that there are reasonable
prospects as required by sub-article (6), it shall continue with its
periodical reviews and this without prejudice to those variations to the
care plan as it would deem necessary in the circumstances of the case
Provided that if the Review Board determines that the
prospects are not reasonable as required by sub-article (6), it may
determine that it will proceed before the Court with a recommendation
to have the alternative permanency plan come into effect
Provided further that the Review Board may recommend the
coming into effect of the alternative permanency plan at any time in
which the minor is under a protection order, if this is deemed to be in the
best interests of the minor.
(7A) The Review Board shall notify all interested parties with its
determination to proceed with the re-integration of the minor or to
proceed before the Court with the recommendation for the alternative
permanency plan. The Review Board shall also invite the parties to
communicate to the Review Board their disagreement, if any, with
such decision and reasons supporting such disagreement within a
given timeframe. Upon the lapse of such timeframe, the Review Board
shall proceed before the Court, putting forward its determination as
well as any disagreeing positions received and the Court shall proceed
to confirm, revoke or vary the determination of the Review Board.
(8)
(8)
Prior to pronouncing its final decision, the Court may
appoint a hearing within ten (10) working days to hear the views of
every person it deems necessary in the circumstances, and in particular
t h e v i e w s o f t h e m i n o r i f h e i s d e e m e d t o h a v e s u ff i c i e n t
understanding
Provided that if the Review Board indicates to the Court that
notification to an interested party has not been possible despite
attempts by the Review Board or it is not possible for the parent or
parents of the minor, depending on the circumstances of the case, to be
traced, located or found or are incapable of being parties to the
proceedings, the Court shall proceed to appoint curators in accordance
with article 930 of the Code of Organization and Civil Procedure to
represent the interests of that party. The procedure of issue of banns as
required by article 931 of the Code of Organization and Civil
Procedure shall not hinder the hearing.
(9)
Repealed by XI.2023.21.
(10)
Repealed by XI.2023.21.
(11)
When the Court issues a decision as mentioned in sub-
article (8), it shall order that a copy of the decree is to be notified to all
the parties including the Directorates, the Children’s Advocate, the
parent or parents of the minor depending on the circumstances of the
case, the tutor and, or curator if applicable and the Review Board.
(12) Any aggrieved party may file an appeal in accordance with
article 66 of this Act.
(1)
Without prejudice to the provisions of article 22, when
the key social worker, the parents of the minor, the alternative carer or, if
applicable, the tutor and, or curator, request a variation to the care plan,
the Review Board shall decide on the need or otherwise of doing so.
(2)
The Review Board shall decide on the manner in which a care
plan is to be varied after hearing all the persons involved, and it shall
order the key social worker to make those variations to the care plan as
established by the board.
(3)
When the Review Board decides that a variation to the care
plan is necessary it shall give its reasons in a report which is to make part
of that decision.
(4)
When the key social worker, the parent or parents of the
minor, or if applicable the tutor and, or curator, feel aggrieved by the
decision of the Review Board, any one of them may, within fifteen
(15) working days, request the Court to vary or revoke the decision of
the Review Board. The Court shall proceed to determine this review in
the same manner as provided in article 33.
(1)
For the purposes of article 22(4), the Review Board
shall, in agreement with the key social worker, the parents of the minor,
the alternative carer and, if applicable, the tutor and, or curator, provide
in writing the aims of the re-integration and the method in which the
minor shall be re-integrated with his family.
(2)
When the Review Board determines that the aims of the re-
integration plan have been met it shall file a note to that effect in the acts
of the case and send those acts to the Court so that the latter shall give its
decision on the recommendations of the Review Board.
(3)
The Court shall revoke the protection order if upon receiving
the acts referred to in the preceding sub-article it is satisfied that the aims
have been met, without prejudice to those conditions which it may deem
fit to impose
Provided that the Court may, before giving effect to such
revocation, hear any person which it may deem appropriate in the
circumstances of the case
Provided further that the Court shall in all cases hear the minor
if deemed to have sufficient understanding.
(4)
In its decision, the Court may order the re-integration of the
minor with his parents while keeping in force the protection order for that
period which it deems appropriate.
PART II
OF ALTERNATIVE CARE
TITLE I
OF THE DIRECTOR RESPONSIBLE FOR THE WELFARE OF
MINORS IN ALTERNATIVE CARE
(1)
There shall be a Director responsible for promoting
the development and well-being of minors in alternative care, who shall
be known as Director Alternative Care (Children and Youths) and who
shall be appointed following a public call from amongst persons having
at least five years experience in services related to minors and having
competence in management.
(2)
The Director Alternative Care (Children and Youths) shall
be an officer of the Foundation for Social Welfare Services and shall
exercise his functions through it
Provided that the Director Alternative Care (Children and
Youths) shall at all times act in an impartial manner in the exercise of
his functions.
(3)
There shall also be other officers who shall exercise and
perform all such powers, functions and responsibilities as may be
delegated or assigned to them by the Director Alternative Care (Children
and Youths).
(4)
In the exercise and performance of the powers, functions and
responsibilities delegated or assigned to them as aforesaid, the officers of
the Director shall, save as otherwise apparent, have the same powers,
functions and responsibilities as are by law imposed on or given to the
Director.
(5)
In the exercise and performance of their powers, functions and
responsibilities, the Director Alternative Care (Children and Youths) and
the officers referred to in sub-article (3) may request the assistance of the
Executive Police in accordance with the Police Act, whenever they deem
it required.
(6)
Repealed by XI.2023.23.
(7)
The legal and judicial representation of the Director
Alternative Care (Children and Youths) shall vest in the Director
Alternative Care (Children and Youths), who may delegate the exercise
of said representation to other officers.
(8)
When the circumstances of a specific case require it, all
powers given to the Director Alternative Care (Children and Youths)
under this Act may be exercised by the Chief Executive Officer of the
Foundation for Social Welfare Services.
(1)
Without prejudice to any other function or
responsibility given to the Director Alternative Care (Children and
Youths) in accordance with this Act or any other law, this Director
shall
(a)
match foster carers with minors who are to be
placed under foster care in accordance with article 50;
(b)
make any reasonable attempt to place siblings
with the same foster carer if this is in the best interest of the
siblings;
(c)
make any reasonable attempt to place a parent
who is a minor and her offspring with the same foster carer;
(d)
ascertain that every placement under foster care is
in the best interest of the minor;
(e)
follow up on all placements under foster care
which have been occasioned through it and provide support to
the foster carers throughout such placement under foster care;
(f)
consider and propose changes, if needed, to any
foster care agreement;
(g)
investigate complaints against a foster carer in
accordance with the manual or procedures mentioned in article
36B and write a report to be referred to the Fostering Board for
any required action;
(h)
investigate any abuse allegations related to foster
care placements in accordance with the manual or procedures
referred to in article 36B and submit a report to the competent
authority as may be required;
(i)
regulate the frequency and modality of contact
between the minor in alternative care and the parent or parents,
depending on the circumstances of the case, siblings, and, or
any other such person close to him in accordance with article
63(3);
(j)
suspend contact between the minor and any
person mentioned hereinabove in view of grave circumstances,
which suspension may not be for a period longer than a month
Provided that should the Director deem it
necessary and, or in the best interest of the minor to have a
longer suspension from contact, the Director shall inform the
Review Board of the circumstances that led to the decision to
suspend contact and the Board shall decide accordingly, by not
later than ten (10) working days;
(k)
carry out periodical assessment of the family
members of the minor in order to evaluate progress according to
the care plan of the minor
Provided that as part of this assessment, the
MINOR PROTECTION (ALTERNATIVE CARE)
Director may be provided with information, as may be
reasonably required for this purpose, by professionals and such
communication shall be protected by professional secrecy
Provided further that as part of this assessment,
the Director may request the competent authority to furnish it
with information, as may be reasonably required for this
purpose, relating to criminal proceedings pending against the
individuals being assessed;
(l)
prepare, agree to, sign, and monitor a social
contract in accordance with the provisions of this Act;
(m) grant or refuse permission for a minor to travel
with his alternative carers and the issuing of an official
document as proof of such permission, when so granted
Provided that the Director shall communicate
immediately with the competent authority about the minor’s
consented trip in view of article 18(10);
(n)
regulate voluntary placements of minors in
alternative care in accordance with article 68 of this Act;
(o)
affect a change in placement of the minor in
alternative care according to the best interest of the same minor
Provided that the Director shall without delay
inform the parent or parents depending on the circumstances of
the case as well as the Review Board of such change in
placement;
(p)
make recommendations to the competent entity in
accordance with the provisions of this Act in relation to the
reintegration or permanency, the freeing up of the minor for
adoption and, or revocation of the protection order, which
recommendations shall always be made in the best interests of
the minor;
(q)
delegate ordinary medical and educational
decisions of a minor to the alternative carer or carers and the
withdrawal of such delegation, once vested with the care and
custody of the minor in alternative care by the Court;
(r)
make extraordinary and urgent medical decisions
after seeking the advice of medical professionals following the
minor;
(s)
make decisions relating to the psychological
needs of the minor in alternative care including decisions
relating to the minor receiving therapy;
(t)
undertake the necessary process for a minor in
alternative care to be transferred from one school to another
upon placement in alternative care and, or a change in
placement in accordance with the best interests of the same
minor
Provided that the Director shall without delay
inform the parent or parents depending on the circumstances of
the case as well as the Review Board of such change of school;
(u)
prepare an after care plan when deemed necessary
for a minor under a protection order;
(v)
perform any other function or duty as the Minister
may, by regulations under this Act, assign to it from time to
time.
(2)
The Director Alternative Care (Children and Youths) shall
also have the following functions
(a)
the provision of services in accordance with
standards, criteria, procedures and guidelines established by the
Central Authority and in accordance with those standards of
service therein established;
(b)
the receipt and processing of applications by
persons applying to be registered as foster carers;
(c)
the provision of initial and on-going training to
prospective foster carers and foster carers registered with it, as
well as providing them with adequate and continuous support
when the Director Alternative Care (Children and Youths)
places a minor under foster care with the foster carers;
(d)
providing the Central Authority with access to
any document relating to the foster care procedures of any
minor, including reports on any foster carer or prospective
foster carer;
(e)
providing the Central Authority with access to its
accounts and audited accounts;
(f)
the submission of a report to the Central
Authority on the exercise of its functions at the end of each
calendar year;
(g)
conforming with any other function as may be
specified by the Central Authority.
(3)
Without prejudice to any other function or responsibility
given to them in accordance with this Act or any other law, every
agency accredited in accordance with this Act shall also have the
functions listed in sub-article (2).
The Director Alternative Care (Children and Youths) shall
develop, update and fulfil the written policies, procedures and manuals
which are subject to approval by the Central Authority, and which
shall inter alia provide for
(a)
procedures on training and evaluation;
(b)
forms of support for foster carers and minors
placed under foster care as applicable before, during and after
such placement under foster care;
(c)
investigation of complaints against any foster
carer; and
(d)
changes in the circumstances of foster carers.
Before commencing the fostering process, the Director
Alternative Care (Children and Youths) shall
(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.
(1)
The Director Alternative Care (Children and Youths)
shall maintain one or more registers which will at least have lists of
(a)
the prospective foster carers registered with it;
(b)
the foster carers registered with it; and
(c)
the professionals who are monitoring every foster
care placement.
(2)
In addition to what is provided in sub-article (1), the Central
Authority may, by informing the Director Alternative Care (Children
and Youths) in writing, order it to add other information to be
registered and kept in the registers mentioned in sub-article (1).
The Director Alternative Care (Children and Youths) shall
make all reasonable efforts to ensure that every social worker assigned
to carry out duties with regard to foster care procedures is adequately
trained in this regard and continues to receive ongoing training.
TITLE II
OF THE SOCIAL CARE STANDARDS AUTHORITY
Without prejudice to any functions and responsibilities
established in the Social Care Standards Authority Act, or in any other
law, the Authority shall, for the purposes of this Act, have the
responsibility
(a)
to receive and acknowledge applications for a
licence to establish, operate and maintain a minor residential care
service;
(b)
to grant or refuse an application for a licence, or to
revoke or suspend the licence of a minor residential care service
provider;
(c)
to receive, acknowledge, investigate and take any
necessary action in relation to any complaints against the Director
Alternative Care (Children and Youths) or any agency purporting
to act as such, or against any minor residential care service
provider;
(d)
to impose such conditions for licensing as it may,
from time to time, by means of regulations, determine to be
necessary;
(e)
to take any measures deemed necessary in the
circumstances if a placement, whether local or cross-border, is in
breach of the provisions of this Act;
(f)
to monitor and inspect the support services being
offered by the Director Alternative Care (Children and Youths) to
the minor and the alternative carers;
(g)
to inspect those premises where the minor is being
accommodated, or any other premises proposed for the
accommodation of the minor; and
(h)
to monitor and inspect the services being offered by
residential carers to the minors in their care.
TITLE III
OF THE FOSTERING BOARD
(1)
There shall be a board, to be known as the Fostering
Board, appointed by the Minister, which shall consist of seven members
as follows
(a)
one person shall be a Chairperson and shall have at
least five years professional experience of practice in foster care;
(b)
two persons who have at least four years
professional experience in social work;
(c)
one person who is, or was, a foster carer for a
period of at least three years;
(d)
one person who is a social worker with three years
experience in foster care;
(e)
one person being a warranted psychologist; and
(f)
one adult person who had lived in foster care for at
least three years.
(2)
The members referred to in the foregoing sub-article 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 period of four (4) years and shall on the expiration of their
term of office be eligible to be re-appointed as members.
(4)
Any member of the Fostering Board may be removed by the
Minister if such member is no longer fit to continue in his role or became
incapable of fulfilling his duties as a member.
(5) In the event that any member of the Fostering Board vacates
his office before completing his term, the member appointed in his stead
shall be so appointed for the unexpired period of the original
appointment.
(6)
Without prejudice to the provisions of this Act and of any
regulation made thereunder, the Fostering Board shall regulate its own
procedure.
(7)
In every case, the number of members present required for a
quorum shall be five and decisions shall be taken by simple majority.
(8)
The Chairperson shall have an original vote, and in case of
equality of votes, a casting vote.
(9)
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
Provided that the Secretary to the board shall have no vote.
(10) The Fostering Board shall meet as and when required, so
however that it shall meet at least once a month
Provided that upon a written request by the Minister or the
Director Alternative Care (Children and Youths), which request shall be
made to the Secretary of the board, the board shall meet not later than
forty-eight hours after the request is made.
(11) In the exercise of its functions under this Act, the Fostering
Board may consult with professionals or other persons as it may deem
appropriate. For such purpose, the Fostering Board may invite any such
professional or other person to attend meetings of the board.
(12) The acts and documents of the Fostering Board, and the
contents thereof, shall not be viewable, are not to be accessed by anyone,
and no copies thereof may be given save to the concerned parties or to
their advocate or legal procurator as may be authorized by said parties.
(13) Twice a year, the Fostering Board shall send reports to the
Minister on all its activities in the previous six calendar months, and it
shall do so within the first fifteen days of the following calendar month.
(1)
The functions of the Fostering Board shall include
(a)
determining whether prospective foster carers are
adequate or not to be foster carers in accordance with the
recommendations indicated in the report prepared by the social
worker for such a purpose and in accordance with article 49(1)(c),
hereinafter referred to as the Home Study Report;
(b)
determining whether a foster carer is adequate to
act as such;
(c)
specifying which type of foster care each foster
carer may provide;
(d)
keeping an updated register of foster carers;
(e)
providing foster carers with official documentation
which identifies them as such and an authentic letter identifying
the minors in their care;
(f)
reviewing reports compiled by the Director
Alternative Care (Children and Youths), following a complaint
against a foster carer, and taking any action as deemed fit in the
circumstances; and
(g)
the making of recommendations to the Minister on
a more effective implementation of the provisions of this Act and
any regulation made thereunder.
(2)
The Fostering Board shall have access to all documentation
deemed relevant for foster care procedures and no one may hinder the
board in the performance of any of its functions.
(1)
In exercising its functions under article 39(1)(a), (b),
(c) and (f), the Fostering Board shall consider the Home Study Reports
and the Review Reports made according to article 52 and referred to it by
a social worker of the Director Alternative Care (Children and Youths) as
well as all other documentation which the board may deem appropriate.
(2)
The Fostering Board shall also hear the prospective foster
carer, or the foster carer, as applicable, the minor if considered to have
sufficient understanding, and any other person which the board deems
appropriate given the circumstances of the case.
(3)
For any decision or action taken in accordance with sub-
articles (1) and (2), reasons shall be given in writing and notified to the
prospective foster carer or the foster carer, as applicable, and to the
Director Alternative Care (Children and Youths).
(4)
The notification mentioned in the foregoing sub-article shall
be made by tracked mail within five working days from the date of the
decision.
(5)
The Fostering Board shall determine any requests made to it
according to this Act not later than six weeks from the date the request
was made, unless the board is of the opinion that a longer period is
required for a valid reason which should be declared and recorded in the
acts of the case.
(6)
The foster carer or the prospective foster carer, as applicable,
may appeal any decision given by the Fostering Board by filing an
application with the Board of Appeal not later than five working days
from the date of notification by tracked mail.
TITLE IV
OF THE CENTRAL AUTHORITY ON FOSTERING
There shall be a Central Authority on fostering which shall be
that entity which upon the entry into force of this Act was responsible for
fulfilling the functions provided in article 42 and, or by regulation made
under this Act
Provided that, from time to time, the Minister may, by
regulations, confirm that entity or identify another entity as the Central
Authority, and by the same regulations he may assign other functions and
responsibilities to it in addition to those already provided in this Act for
the Central Authority.
The functions of the Central Authority shall include
(a)
receiving and acknowledging applications for
accreditation;
(b)
granting, refusing, suspending and revoking the
accreditation of agencies in accordance with established criteria;
(c)
receiving, acknowledging, investigating and
taking of any necessary action on any complaint against
accredited agencies or agencies purporting to act as such;
(d)
receiving requests from foreign persons who are
approved as foster carers in another country or from accredited
agencies, which requests shall be referred to the Director
Alternative Care (Children and Youths) and it is only the Director
Alternative Care (Children and Youths) which shall make the
necessary checks once such references are made to it; and
(e)
receiving applications from agencies which want to
provide cross-border foster care and deciding on whether to allow
such agencies to place minors under foster care.
(1)
Any agency may apply to the Central Authority for
accreditation, in the form approved and provided for by such authority, in
order to be able to carry out foster care services.
(2)
The Central Authority may, at any time during the processing
of an application, require an agency to provide any documents and
information deemed necessary in order to ascertain whether accreditation
should be granted.
(1)
The Central Authority may accredit an agency if it is
satisfied that the agency
(a)
has professionals with sufficient experience and
expertise in dealing with matters related to minors and families;
(b)
has an adequate number of staff 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 provisions of articles 36A(2) and 36B to 36E shall
apply mutatis mutandis to every organisation accredited by the
Central Authority in accordance with this article
Provided that articles 36B(c) and 36D(1)(c) shall not apply
to agencies accredited in accordance with this article.
(3)
An accredited agency shall be obliged to provide the Director
Alternative Care (Children and Youths) with information in its
possession, including information on foster carers and prospective foster
carers, as requested by the Director Alternative Care (Children and
Youths) with the purpose of fulfilling one of its functions according to
this Act.
(4)
In addition to the requirements provided in the foregoing sub-
article, the Minister may prescribe other requisites by regulations made
for such purposes or as otherwise may be made under this Act.
(1)
Upon granting accreditation to an agency the Central
Authority shall issue an Accreditation Certificate which shall be valid for
a period of two years from date of issue.
(2)
The certificate referred to in sub-article (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 43 and 44.
(3)
The decision of the Central Authority on the renewal of the
accreditation certificate shall be served on the accredited agency, by
tracked mail, within three months from the application for renewal.
(1)
The Central Authority shall have the right to refuse an
application for accreditation, or for its renewal, if it deems the agency
inadequate for the provision of foster care services.
(2)
A refusal according to sub-article (1), together with the
reasons therefor, shall be given in writing to the applicant agency within
three months from the date of application.
(3)
The agency or the accredited agency, as applicable, shall have
the right to request a change in the decision of the Central Authority by
filing an application to the Board of Appeal within twenty days from the
date of notification in accordance with sub-article (2).
(4)
If the reason for refusal is no longer present, the organisation
or the accredited agency, as applicable, shall have the right to apply with
the Central Authority for accreditation.
(1)
The Central Authority shall have the right to revoke
accreditation of an agency at any time, if the agency
(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 or of any regulations
made thereunder.
(2)
The Central Authority shall notify the agency on the
revocation, which notification shall be given together with the reasons
therefor and such revocation shall have effect from the date of
notification.
(3)
If the accreditation is revoked on any of the grounds
mentioned in sub-article (1)(b), (c) or (d), the agency may request the
revocation of the decision of the Central Authority by filing an
application to the Board of Appeal within ten days from notification in
accordance with sub-article (2).
(4)
If the accreditation of an agency is revoked, the Accreditation
Certificate and all the documents related to foster care services become
the property of the Central Authority
Provided that the Central Authority may appoint another
accredited agency to have custody of such documents, to follow up on
the prospective foster carers and foster carers, to continue taking care and
follow up on the placement of minors under foster care, and to perform
all the functions of the agency which had its accreditation revoked in
accordance with this article.
(1)
During the month of January of each year, the Central
Authority shall publish in the Gazette
(a)
a list of all accredited organisations specifying their
full name, registered address and other relevant contact details;
and
(b)
a list of agencies whose accreditation has been
revoked throughout the previous calendar year.
(2)
The Central Authority shall publish in the Gazette any change
to the conditions required for accreditation or the renewal thereof upon
making such a change, and changes shall take effect from the date of
publication.
TITLE V
Sub-title I
OF FOSTER CARE
(1)
Upon receiving an application by a prospective foster
carer, the Director Alternative Care (Children and Youths) shall
(a)
train the prospective foster carer;
(b)
evaluate the suitability of the prospective foster
carer;
(c)
draw up a report on the situation of the prospective
foster carer which shall include any appropriate recommendation,
which report shall be known as Home Study Report; and
(d)
forward the Home Study Report to the Fostering
Board.
(2)
For the purposes of drawing up the Home Study Report, the
social worker authorised by the Director Alternative Care (Children and
Youths) shall visit the ordinary residence of the prospective foster carer
as necessary.
(3)
The visits mentioned in the foregoing sub-article may be made
without notice and the prospective foster carer shall co-operate with the
social worker and he shall provide information which as far as he knows
is correct. Denying entry of the social worker in his ordinary residence
may constitute sufficient ground for the rejection of his application..
(4)
Without prejudice to any other provision of this Act or of any
other law, the Home Study Report shall include the following
(a)
a conduct certificate issued by the Commissioner of
Police;
(b)
a report made by a registered doctor on the state of
health of the prospective foster carer;
(c)
a register of the meetings that the social worker had
with the family;
(d)
a recommendation by the social worker on whether
the prospective foster carer is suitable or otherwise, and the
reasons therefor; and
(e)
any other information as the Fostering Board may
reasonably require.
(5)
When a social worker, in the early stages of his evaluation for
the purpose of drawing up the Home Study Report, has enough reasons to
think that a prospective foster carer is not suitable, he shall present a
preliminary report to the Fostering Board and request direction on
whether he should proceed with the Home Study Report or not.
(6)
When the Fostering Board decides that a social worker should
proceed with his Home Study Report it shall inform the social worker
and the latter shall proceed with his evaluation
Provided that when the Fostering Board agrees with the
preliminary report it shall give its decision in accordance with this Act
and it shall accordingly notify those mentioned in article 40(3).
For the purpose of matching a foster carer with a minor, the
Director Alternative Care (Children and Youths) shall
(a)
consider the individual needs of the minor;
(b)
consider the capabilities and experience of the
foster carer to cater for the particular needs of the minor;
(c)
without prejudice to paragraph (a), make any
reasonable attempt to keep siblings at the same residence;
(d)
without prejudice to paragraph (a), make any
reasonable attempt to keep a parent under the age of eighteen
years and his or her offspring at the same residence;
(e)
consider the report made by the social worker; and
(f)
consider whether relatives of the minor are capable
of taking care of said minor.
(1)
Foster care shall take place following a written
agreement between the Director Alternative Care (Children and Youths)
and the foster carer, which may be modified by written agreement
between the Director Alternative Care (Children and Youths) and the
foster carer.
(2)
The care order, the care plan and the voluntary placement
order in accordance with article 68, as well as any revision to them, shall
be annexed to the agreement and shall be read and interpreted as part of
the same agreement.
(3)
The agreement shall be signed by the social worker and the
foster carers, and a copy thereof together with the relevant parts of this
Act which provide for the rights and responsibilities of foster carers and
the rights of minors under foster care, shall be given to the foster carers.
(4)
A copy of the agreement mentioned in this article may be
given to the parents of the minor only if the Director Alternative Care
(Children and Youths) decides that it would be in the best interests of the
minor.
(5)
The foster care agreement shall be deemed to include the right
of the foster carer to travel with the minor after having notified the
Director Alternative Care (Children and Youths), and the Director
Alternative Care (Children and Youths)shall have three (3) working
days to object to said travelling and the Review Board may give a
direction according to sub-article (6)
Provided the notification by the foster carer shall be made
within a reasonable time and the foster carer shall not have the right to
any compensation or damages if he made any arrangements for that
traveling before the lapse of the said three working days without any
objection by the Director Alternative Care (Children and Youths), or
before the Review Board has given its direction according to sub-article
(6).
(6)
In case of any disagreement as to the foster care agreement,
any party may request a direction from the Review Board which
direction is to be given by not later than ten working days.
(7)
The contents of the agreement between the foster carer and the
Director Alternative Care (Children and Youths) shall not be deemed as a
permanent one unless it contains a clause which provides clearly to the
contrary.
(8)
The agreement may be terminated by the Director Alternative
Care (Children and Youths) or the foster carer, as applicable, for any one
of the following reasons
(a)
the foster carer does not comply with the foster care
agreement;
(b)
the Fostering Board decided that a foster carer is no
longer capable of providing foster care;
(c)
the placement of a minor under foster care is no
longer in the best interests of the minor;
(d)
the circumstances make it difficult for the foster
carer to continue taking care of the minor under his care
Provided that the agreement may only be terminated after the
key social worker is informed of such an intent and an alternative care
plan is drawn up and approved by the Review Board.
(1)
During a placement under foster care, the Director
Alternative Care (Children and Youths) shall designate a social worker to
monitor a foster carer registered with it.
(2)
The social worker shall prepare a Review Report at least once
every year for the first three (3) years in which the minor is in foster care
and every two (2) years following said three (3) years, so that it may be
determined whether the foster carer is fulfilling his obligations in
accordance with this Act and the foster care agreement, with the purpose
of deciding if such carer should be allowed to continue taking care of the
minor
Provided that the Review Report shall be made before the
expiry of a two-year period if there is a need to evaluate the foster carer
before such expiry.
(3)
For the drawing up of the Review Report, the social worker
shall make the necessary visits to the residence.
(4)
The visits mentioned in the foregoing sub-article may be made
without notice and the foster carer shall co-operate with the social worker
and he shall provide information which as far as he knows is correct, and
he may not deny the social worker entry to his ordinary residence.
(5)
The social worker making visits in accordance with this article
shall have the right to be assisted by members of the Executive Police in
case it is deemed that there is a risk of hindrance to the exercise of his
responsibilities according to this article.
By virtue of this article, with the rights and responsibilities of
foster carers listed in a foster care agreement, the following shall be
deemed to be added and included
(a)
the facilitation of contact between the minor and his
family and any other person which the Review Board may deem
necessary in the best interests of the minor, as long as this does
not endanger or threaten the safety of the foster carers or of the
alternative carers;
(b)
the receiving of any information, including medical
information, about the minor being placed in their care and
ensuring that any such information is kept confidential;
(c)
the receiving of such financial assistance as may be
required for the care and upbringing of the minor;
(d)
the receiving of adequate support services;
(e)
co-operation with all the entities and persons
concerned and the furnishing to them of such information as they
may deem required;
(f)
ensuring that the minor attends to any treatment
which the Review Board may determine as needed for the well-
being of the minor;
(g)
attendance together with the minor for reviews by
the Review Board and updating that board on the progress being
done by the minor and on any other significant event;
(h)
the giving of a notification to the Director
Alternative Care (Children and Youths) and the Review Board of
any change in their ordinary residence, at least two months before
such change;
(i)
ensuring that the minor is brought up in an
environment which leads to his psychological security as well as
his physical well-being, to the satisfaction of the Social Care
Standards Authority;
(j)
respecting and facilitating of the right of the minor
to practice a religion of his own choice;
(k)
the reporting to the Director Alternative Care
(Children and Youths) or the Review Board of any incident,
abscondment, truancy from school, injury, sickness or death as
they occur;
(l)
the participation in on-going training as organized
by the Director Alternative Care (Children and Youths);
(m) the right to open a bank account in the name of the
minor, which they shall administer as a bonus paterfamilias;
(n)
access to information on the biological parents of
the minors, following an application to the Court which the Court
may approve or refuse after having considered the case and the
best interests of the minor; and
(o)
the observance of any other obligation as may be
imposed upon them under this Act or any other law.
(1)
When a minor has been residing with a foster carer for
more than five years, the foster carer may request the adoption of that
minor by filing an application to the Court of Voluntary Jurisdiction
Provided that in extraordinary circumstances and only after
three (3) positive Review Reports on the fostering of the minor, the Court
of Voluntary Jurisdiction may accede to a request for adoption of the
minor even if the minor had not been residing with the foster carer for
more than five (5) years.
(2)
Notwithstanding any other provision of the law, no restrictions
based on age may apply for adoption in accordance with this article.
(3)
Adoption in accordance with this article shall be granted on
condition that the rights of access to the minor by the biological parents
and siblings by consanguinity shall be as wide as possible, as long as this
is in the best interest of the minor.
(1)
Without prejudice to any other function or
responsibility given to the Director Alternative Care (Children and
Youths) in accordance with this Act or any other law, the Director
Alternative Care (Children and Youths) under this Act shall
(a)
match foster carers with minors who are to be
placed under foster care in accordance with article 50;
(b)
make any reasonable attempt to place siblings with
the same foster carer if this is in the best interest of the siblings;
(c)
make any reasonable attempt to place a parent who
is a minor and his offspring with the same foster carer;
(d)
ascertain that every placement under foster care is
in the best interest of the minor;
(e)
follow up on all placements under foster care which
have been occasioned through it and provide support to the foster
carers throughout such placement under foster care;
(f)
consider and propose changes, if needed, to any
foster care agreement;
(g)
investigate complaints against a foster carer in
accordance with the manual or procedures mentioned in article 56
and make a report to be referred to the Fostering Board for any
required action; and
(h)
investigate any abuse allegations related to foster
care placements in accordance with the manual or procedures
referred to in article 56 and make a report to the competent
authority as may be required.
(2)
The Director Alternative Care (Children and Youths) shall
also have the following functions
(a)
the provision of services in accordance with
criteria, procedures and guidelines established by the Central
Authority and in accordance with those standards of service
therein established;
(b)
the receipt and processing of applications by
persons applying to be registered as foster carers;
(c)
the provision of initial and on-going training to
prospective foster carers and foster carers registered with it, as
well as providing them with adequate and continuous support
when the Director Alternative Care (Children and Youths) places
a minor under foster care with the foster carers;
(d)
providing the Central Authority with access to any
document relating to the foster care procedures of any minor,
inclusive of reports on any foster carer or prospective foster carer;
(e)
providing the Central Authority with access to its
accounts and to accounts as audited by an auditor;
(f)
sending of a report to the Central Authority on the
exercise of its functions at the end of each calendar year;
(g)
conforming with any other function as may be
specified by the Central Authority.
(3)
Without prejudice to any other function or responsibility given
to them in accordance with this Act or any other law, every agency
accredited in accordance with this Act shall also have the functions listed
in sub-article (2).
The Director Alternative Care (Children and Youths) shall
develop, update and fulfil the written policies, procedures and manuals
which are subject to approval by the Central Authority, and which shall
inter alia provide for
(a)
procedures on training and evaluation;
(b)
forms of support for foster carers and minors placed
under foster care as applicable before, during and after such
placement under foster care;
(c)
investigation of complaints against any foster carer;
and
(d)
changes in the circumstances of foster carers.
Before commencing the fostering process, the Director
Alternative Care (Children and Youths) shall
(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.
(1)
The Director Alternative Care (Children and Youths)
shall maintain one or more registers which will at least have lists of
(a)
the prospective foster carers registered with it;
(b)
the foster carers registered with it; and
(c)
the professionals who are monitoring every foster
care placement.
(2)
In addition to what is provided in sub-article (1), the Central
Authority may, by informing the Director Alternative Care (Children and
Youths) in writing, order it to add other information to be registered and
kept in the registers mentioned in sub-article (1).
The Director Alternative Care (Children and Youths) shall
make all reasonable efforts to ensure that every social worker assigned to
carry out duties with regard to foster care procedures is adequately
trained in this regard and continues to receive ongoing training.
TITLE VI
OF RESIDENTIAL CARE
(1)
Where the placement of a minor in foster care is not in
the best interest of the minor, such minor shall be accommodated in a
home for residential care.
(2)
A home for residential care shall be responsible for promoting
the development and well-being of a minor placed under its care.
(1)
Without prejudice to other responsibilities under this
Act or any other law, and the rules made according to sub-article (2), a
home for residential care shall be responsible for
(a)
ensuring that the placement into residential care is
effected in the most appropriate manner for the minor;
(b)
ensuring that the minor under its care receives all
those rights pertaining to all minors in the pursuit of his well-
being, of his development and for the attainment of his
aspirations;
(c)
collaborating with the social worker assigned for
the minor;
(d)
reporting to the social worker and the Review
Board on every fact which may affect the care plan of the minor;
(e)
facilitating contact between the minor and his
family in accordance with the care plan or decision of the Review
Board;
(f)
providing residential services in accordance with
the standards, criteria and procedures established by the Social
Care Standards Authority through regulations for such purpose;
(g)
keeping of a register on minors placed under their
care, which register shall include periodical reports relating to the
development of the minor;
(h)
providing initial and on-going training to their
employees and service providers;
(i)
notify the Director Alternative Care (Children and
Youths) of any requests made directly to it for the placement of a
minor in its care; and
(j)
develop, maintain, update and execute written
policies, procedures and manuals.
(k)
the right to open a bank account in the name of
the minor, which they shall administer as a bonus paterfamilias;
(l)
the receiving of any relevant information,
including medical information, about the minor being placed in
their care and ensuring that any such information is kept
confidential;
(m) ensuring that the minor attends to any treatment
which the Review Board may determine as needed for the well-
being of the minor;
(n)
attendance together with the minor for reviews by
the Review Board and updating that board on the progress
being done by the minor and on any other significant event;
(o)
respecting and facilitating the right of the minor
to practice a religion of his own choice.
(2)
The Central Authority may, by notice in the Gazette, make
rules providing for other responsibilities for homes for residential care,
which responsibilities are not already provided under sub-article (1), in
this Act or in any other law whatsoever, and it may also in the same
manner make rules further specifying the responsibilities provided
according to sub-article (1), and it shall at all times do so in the best
interests of minors.
(1)
A residential care placement shall only take place
following an agreement entered into between the Director Alternative
Care (Children and Youths) and the head of the residential home.
(2)
The termination of any residential care placement agreement
may only be given effect by the Review Board following a request by an
interested person.
TITLE VII
OF THE RIGHTS OF MINORS IN ALTERNATIVE CARE
(1)
A minor in relation to whom the provisions of this Act
apply shall be cared for, maintained, instructed and educated according to
his abilities, aspirations and natural inclinations.
(2)
The minor shall also, at any time, have regular access to the
social worker who is taking care of his placement in alternative care.
(3)
Without prejudice to the generality of the rights mentioned in
sub-articles (1) and (2), and to any other right of the minor, said minor
shall in particular have the following rights
(a)
to be consulted on any decision affecting him in a
manner appropriate to his age and understanding;
(b)
to have access to information on the situation of his
family members in the absence of contact with them;
(c)
to maintain personal relations and direct contact
with his parents, and with any such other person close to him,
unless it is contrary to the best interests of the minor;
(d)
to receive nutrition in accordance with the relevant
nutritional standards, as well as with his religious beliefs;
(e)
to receive
appropriate
medical
care
and
psychological support;
(f)
to have access to education;
(g)
to have his specific safety, health, nutritional,
developmental and other needs catered for;
(h)
to freely decide which religion to pursue and to
have his religious and spiritual needs satisfied accordingly;
(i)
to have his privacy respected;
(j)
to have a positive, safe and nurturing relationship
with his alternative carers; and
(k)
the rights mentioned in the United Nations
Convention on the Rights of the Child.
(4)
From time to time the Minister may update the rights
mentioned in this article by regulations.
PART III
OF APPEALS
TITLE I
OF THE BOARD OF APPEAL
(1)
There shall be a Board of Appeal which shall consist of
three members as follows
(a)
a Chairperson who shall have a warrant to practise
the profession of advocate in Malta for at least five years; and
(b)
two persons who shall have at least five years of
professional experience in the welfare of minors.
(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 inability to perform the functions of their
office or for misbehaviour.
(3)
A member of the Board of Appeal may be challenged or may
abstain for any of the reasons for which a judge may be challenged or
may abstain in accordance with article 734 of the Code of Organization
and Civil Procedure.
(4)
When a member of the Board of Appeal recuses himself or
abstains in accordance with the foregoing sub-article, the Minister shall
appoint another person to sit as a member on the Board of Appeal in
substitution of the said member and for the appeal for which such
member recused himself or abstained.
(5)
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 Magistrate, a member of the House of Representatives or of a Local
Council, or a candidate for election to the House of Representatives or a
Local Council.
(1)
The Board of Appeal shall be competent to, following
a request by application
(a)
review a decision of the Fostering Board;
(b)
review a decision of the Social Care Standards
Authority to refuse, revoke or suspend a registration; and
(c)
review decisions of the Central Authority with
regards to accreditation, accreditation renewals, suspension or
revocation of an accreditation.
(2)
The Board of Appeal shall fulfil any other function which the
Minister may prescribe by regulations made by virtue of this Act.
(3)
To fulfil its functions, the Board of Appeal shall have access to
all documentation related to a foster care procedure and no one may
hinder it in the exercise of its functions.
(4)
The Board of Appeal shall have such powers as are vested in
the First Hall of the Civil Court by the Code of Organization and Civil
Procedure.
(5)
Without prejudice to the provisions of the foregoing sub-
article, in the exercise of its functions the Board of Appeal may call upon
any person to testify and to produce any necessary documents and for
such purpose the Chairperson shall have the power to administer an oath.
(6)
The Board of Appeal shall decide an appeal within six weeks
from the filing of the application, unless it is the view of the Chairperson
that a longer period is required due to a valid reason which shall be given
and noted in the acts of the case.
(7)
A decision given by the Fostering Board, by the Central
Authority or by the Social Care Standards Authority, as applicable, shall
have immediate effect unless the Board of Appeal decides to suspend it
until a final decision is given.
(8)
The decision of the Board of Appeal, and the reasons for it,
shall be given in writing and shall be notified to the appellants, the
Fostering Board, to the Central Authority and to the Social Care
Standards Authority, as applicable, by tracked mail within five working
days from its pronouncement.
(9)
In cases falling within the competence of the Board of Appeal
in accordance with sub-article (1), there shall be a right of appeal on a
point of law by application to the Court of Appeal (Inferior Jurisdiction)
constituted in accordance with article 41(9) of the Code of Organization
and Civil Procedure.
(10) The application mentioned in the foregoing sub-article shall
be filed not later than fifteen working days from the date of the decision
of the Board of Appeal.
TITLE II
OF THE COURT OF APPEAL
(1)
Without prejudice to the provisions of this Act, any
party in proceedings under this Act which feels aggrieved by a decision
may appeal by filing an application to the Court of Appeal (Inferior
Jurisdiction) as constituted in accordance with article 41(9) of the Code
of Organization and Civil Procedure
Provided that for the purposes of this article a minor shall also
be deemed as an aggrieved party, as may be represented by the
Children’s Advocate assigned to him
Provided further that the provisions of this article shall not
apply when the methods of contestation or redress for any particular
decision have not been exhausted in accordance with this Act.
(2)
The appeal shall be brought in front of the Court Appeal by
application filed within fifteen working days from the date in which a
decision was given.
(3)
The appealed party shall file its reply within fifteen working
days from when it was notified with the appeal application.
(4)
The Court of Appeal shall appoint the first hearing of the
application not later than thirty days from the date in which the parties
were notified with the application and it shall give a final decision within
sixty days from the date of the first hearing.
(5)
The Court of Appeal may confirm or revoke the decision of
the Court, as well as impose other measures it deems fit, and upon final
judgement it shall send the acts back to the Court so that it may consider
the case in accordance with articles 22, 23 or 24, as applicable.
(6)
An appeal made according to this article shall not stay the
execution of the appealed decision.
(7)
Save as otherwise provided in this Act, the provisions of the
Code of Organization and Civil Procedure on the Court of Appeal and
for appeals heard by it shall apply mutatis mutandis
Provided that all cases shall, at all times, be heard behind
closed doors.
PART IV
OF SOCIAL WORK WITH MINORS
(1)
Where the Court makes any of the orders mentioned in
articles 19 and 20 in respect of a minor, it shall notify the Director (Child
Protection) of such order and the Director Alternative Care (Children
and Youths) shall appoint a key social worker as soon as possible.
(2)
Without prejudice to any other responsibilities under this Act,
or under any other law, the responsibilities of a key social worker shall
include
(a)
maintaining an interpersonal relationship with the
minor;
(b)
visiting the minor at regular intervals;
(c)
monitoring the placement of the minor and consider
his well-being;
(d)
co-ordinating and following-up the progress of the
care plan;
(e)
keeping of a detailed register of all minors under
his care;
(f)
participation in a minor’s case reviews and
reporting to the Review Board on the welfare of the minor;
(g)
appearing, reporting and giving recommendations
to the Review Board on matters related to the minor, including on
the possibility of re-integrating the minor with his family or, if
not, on whether the type of alternative care is appropriate for the
minor, and on the progress and implementation of the care plan;
(h)
reporting to the Director (Child Protection), and to
any other competent authority, on cases of alleged abuse and on
any other serious incident related to the well-being of the minor;
(i)
the consideration of the situation, the capabilities,
the difficulties and the other characteristics of the parents, with
the purpose of offering them assistance in order to fulfill their
duties and obligations as parents, and for them to do so to the best
of their abilities and always in the best interests of the minor; and
(j)
the fulfilment of the conditions of the care plan on
the provision of support services to the minor and of any other
service as provided in the care plan.
(1)
When, due to a valid reason, the parents of a minor
propose to make arrangements have said minor reside with another
person, not being a relative, or entity, for a period exceeding two (2)
months, the parents and, or such other person or entity shall notify the
Director Alternative Care (Children and Youths) of such proposal
Provided that if the proposed placement is with a
relative,not being a brother or a sister, a grandfather and, or
grandmother, an aunt and, or an uncle the obligation under this article
shall arise if the proposed placement is for a period exceeding two (2)
months or if the minor has been under their care for two (2) months or
more.
(2)
Upon being notified in accordance with sub-article (1), the
Director Alternative Care (Children and Youths) shall appoint a social
worker to visit and examine the place in which the minor is proposed to
be kept, and to recommend on whether the person or entity proposed for
receiving the minor is adequate to provide for his needs and well-being.
(3)
The social worker appointed in accordance with sub-article (2)
shall, in relation to the minor, have the same responsibilities as provided
in article 67(2).
(4)
For the purposes of sub-article (2) the social worker shall
draw up a report and notify it, together with proposed arrangements, to
the Review Board.
(5)
When the Review Board is satisfied that the person or entity to
be entrusted with looking after the minor is adequate to give such care,
and the place in which the minor shall be kept is appropriate to his needs,
the board shall order the social worker to prepare a care plan and the
provisions of article 13(1), (2) and (3) shall apply mutatis mutandis.
(6)
In every case, the care plan shall be prepared with the
participation of the minor, if deemed to have sufficient understanding,
and with the participation of any other person or entity which the
Director Alternative Care (Children and Youths) deems appropriate in
the circumstances of the case.
(7)
The Review Board shall, at regular intervals, hear all the
professionals involved in the case, the minor if deemed to have sufficient
understanding, the parents of the minor, the person or entity having
received the minor under its care, and any other person which the board
may deem appropriate in the circumstances of the case.
(8) Without prejudice to sub-article (7) the Review Board shall
review the care plan mentioned in this article at least once every six
months.
(9)
When the parents are no longer of the opinion that the
agreement should remain in force, they may file an application to the
Review Board and request the rescission of the agreement, and in such a
case the board shall give any direction or order it deems appropriate
Provided that up to the moment the Review Board gives its
final decision, the minor is to keep on residing and being looked after
by the entrusted person or entity.
(10) If the arrangement goes beyond the agreed care plan, the
Director Alternative Care (Children and Youths) should assess
whether to refer the case to the Director (Child Protection) for the
latter to evaluate whether to apply to Court so that it may decree an
appropriate protection order for the minor.
(11) When the minor has been in the placement for a period of
two (2) years and the Director Alternative Care (Children and Youths)
determines that re-integration with the parent or parents depending on
the circumstances of the case, is no longer possible or is not in the best
interests of the minor, the same Director may liaise with the Director
(Child Protection) so that, by application, they request the Court to
issue a protection order and the provisions of articles 18 and 19 or 24
of this Act shall apply mutatis mutandis.
(12) In accordance with article 12(3)(h), the Director (Child
Protection) may, in the course of the investigation following a report,
come to an agreement with the parent or parents of a minor depending
on the circumstances of the case, that the minor is placed temporarily
in alternative care and a social contract shall be agreed upon between
the interested parties including the Director Alternative Care (Children
and Youths)
Provided that a copy of the agreed social contract is to be
communicated to the Review Board.
(13) Once the parties agree to such a social contract that includes
placing the minor in alternative care, the termination of that placement
shall only be possible in accordance with the provisions of this Act.
(1) When a minor has been placed in alternative care
following a court order under the provisions of another law other than
this Act, the Director Alternative Care (Children and Youths) may, by
application before that court, request that a copy of the acts leading to
the court order to place the minor in alternative care, and any
subsequent variations to the same order, be referred to the Court.
(2)
In the same application, the Director Alternative Care
(Children and Youths) may also request the Court to convert that court
order into a protection order in terms of articles 18 and 19 of this Act
and those provisions shall subsequently apply mutatis mutandis.
PART IV bis
AFTER CARE
(1)
Young people in alternative care may have their
placement in alternative care, which placement needs to be considered
as one that offers a family-life environment, extended even after
attaining the age of majority, if this is deemed to be in their best
interest and not contrary to the best interest of other minors in the same
placement
Provided that this extension should not exceed the period
until the young person attains the age of twenty-one (21) years and
provided that the same young person had been residing in that same
placement for more than two (2) years before the attainment of the age
of majority.
(2)
Prior to the extension of such placement, the Director
Alternative Care (Children and Youths) shall carry out an assessment
of the needs and wishes of the young person that is approaching
adulthood and of the other residents. Moreover, an agreement has to be
reached with the professionals following the same young person that
this extension would be in the best interest of the same young person,
and with the young person himself, which agreement is to be reflected
in a social contract to be signed by all the interested parties
Provided that if during the extension of the placement, the
young person is in breach of the conditions set out in the social
contract, that breach shall bring about the termination of the
placement.
Provided further that the placement may also be terminated
upon the expressed will of the young person and if the actions of said
young person are deemed to be contrary to the best interests of the
other residents in the family-like environment.
PART V
MISCELLANEOUS
Upon a minor being removed from the care and custody of a
person and at once when a case is assigned to a key social worker, the
key social worker shall immediately do all that is necessary so that a
passport is issued for that minor and such passport shall be kept by the
Director Alternative Care (Children and Youths)
Provided that in those circumstances in which a passport may
not be issued, the key social worker shall do what is necessary for the
issue of valid travel document for that minor.
Whenever a decision is taken according to this Act and upon
the application, demand or request of any party, a copy of the decision,
with reasons for such decision, shall be given to such party, without
prejudice to the provision of such a copy to other persons as permitted by
law.
Notwithstanding any other provision of this Act or any other
law, for matters related to the education of a minor subject to any
provision of this Act, the consent of one person having the care and
custody of the minor according to law shall be enough for all intents and
purposes at law.
Any social worker that is to give his testimony in any
proceedings under this Act, shall first be exempted from the obligation of
professional secrecy and for such purposes, save if already empowered to
do so by law, the presiding member of the body in front of which such
testimony is to be given may so exempt said social worker according to
this article.
(1)
Any board called upon by this Act to consider the case
of an unaccompanied minor shall consult with experts identified by the
Chief Executive Officer of the Agency for the Welfare of Asylum
Seekers established according to regulation 3 of the Agency for the
Welfare of Asylum Seekers Regulations and by the Commissioner for
Children.
(2)
Every consultation with experts as referred to in sub-article (1)
shall be noted in writing in the decision of the board.
(1) Without prejudice to the provisions of this Act,
Regulation (EU) 2016/679 and the Data Protection Act, including the
regulations made thereunder shall apply to all functions and
procedures under this Act, and the fundamental rights and freedoms of
the data subjects shall be respected by each and every entity.
(2)
Relevant entities mentioned in this Act including the
Director (Child Protection), the Director Alternative Care (Children
and Youths), the Review Board, the Fostering Board and the Board of
Appeal, in their capacity as data controllers shall process personal
data, including special categories of personal data, in accordance with
the data protection principles pursuant to Article 5 of Regulation (EU)
2016/679.
(3)
Taking into account the nature, scope, context and purposes
of the processing, the entities abovementioned shall implement
appropriate technical and organisational measures to ensure a level of
security appropriate to the risk posed, and in particular prevent
unauthorised disclosure of, or unlawful access to information
pertaining to data subjects.
(4)
Where the Director (Child Protection) and, or the Director
Alternative Care (Children and Youths) processes information about
data subjects pursuant to their functions under this Act and for the
purposes which derive therefrom, the Director (Child Protection) and,
or the Director Alternative Care (Children and Youths) may restrict the
rights and obligations provided for in Articles 14 to 20 and Article 34
of Regulation (EU) 2016/679
Provided that such rights and obligations shall
only be restricted in those cases where the restriction is
considered as a necessary and proportionate measure to enable
the Director (Child Protection) and, or the Director Alternative
Care (Children and Youths) to exercise their functions pursuant
to this Act
Provided further that the data protection officer
designated pursuant to Article 37 of Regulation (EU) 2016/679
shall, when necessary, be consulted in a timely manner in the
entire process of applying the restriction.
(5)
The Director (Child Protection) and, or the Director
Alternative Care (Children and Youths), shall only apply the
restriction referred to in sub-article (4) for as long as the reasons
justifying it remain applicable following a necessity and
proportionality test
Provided that such reasons justifying the restriction shall be
documented and made available to the Information and Data
Protection Commissioner when and as required.
(6)
Where the reasons for a restriction no longer apply, the
Director (Child Protection) and, or the Director Alternative Care
(Children and Youths) shall lift the restriction and inform the data
subject concerned accordingly and comply with the rights and
obligations provided for in Articles 14 to 20 and Article 34 of
Regulation (EU) 2016/679.
(7)
The Director (Child Protection) and, or the Director
Alternative Care (Children and Youths) shall review on an annual
basis the application of the restriction referred to in sub-article (4) and
depending on the outcome of such review, inform the data subject
accordingly.
(8)
For the purpose of safeguarding the rights and freedoms of
the data subjects, the following conditions and safeguards shall apply
to the information processed in relation to the data subjects, which
data shall be subject to a restriction in terms of sub-article (4)
(a)
the data protection officer of the Foundation for
Social Welfare Services shall keep a register to record the
restrictions applied by the Director (Child Protection) and, or
the Director Alternative Care (Children and Youths) in relation
to the data protection requests made by the data subjects. The
register shall include the details of the data subjects, the right
requested to be exercised, the purpose of the restriction and the
reason for justifying the restriction following the exercise of a
necessity and proportionality test. The restriction of the
obligation set forth in Article 34 of Regulation (EU) 2016/679
shall also be recorded in the register;
(b)
data subjects shall be informed of the restriction
applied by the Director (Child Protection) and, or the Director
Alternative Care (Children and Youths) in reply to their request
to exercise any of the rights in terms of Regulation (EU) 2016/
679, unless this may be prejudicial to the purpose of the
restriction
Provided that upon a request by the Information and Data
Protection Commissioner, the Director (Child Protection) and, or the
Director Alternative Care (Children and Youths) shall clearly
demonstrate the prejudice that they would suffer.
(9)
Records and documentation kept and stored by the Director
(Child Protection) and, or the Director Alternative Care (Children and
Youths) shall be kept according to the retention policy of the
respective Directorate. Once this time period would have elapsed, data
shall be disposed of according to the Data Protection Act.
PART VI
OF OFFENCES
(1)
Any unauthorised person or any unauthorised
organisation that makes an arrangement for the placement of a minor in
foster care 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
three years or to a fine (multa) of not less than two thousand euro
(€2,000) but not more than five thousand euro (€5,000), or to both such
fine and imprisonment.
(2)
For the purposes of sub-article (1), a person or organisation
shall be deemed to make arrangements for the placement of a minor in
foster care if it enters into any agreement or makes any arrangements to
facilitate the fostering of a minor.
Any person or organisation that establishes, operates or
maintains a residential home, or provides, directly or indirectly,
residential care without the written approval of the Social Care Standards
Authority shall be guilty of an offence and shall on conviction be liable to
imprisonment for a term of not less than twelve months and not
exceeding four years or to a fine (multa) of not less than five thousand
euro (€5,000) but not more than ten thousand euro (€10,000), or to both
such fine and imprisonment.
(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
payment or other compensation for any arrangements for a foster care
placement 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 more
than six months or to a fine (multa) of not less than one thousand and two
hundred euro (€1,200) but not more than two thousand and five hundred
euro (€2,500), or to both such fine and imprisonment, and this without
prejudice to any order the Court deems fit to impose in the circumstances
in order to protect the minor 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 minor in foster care shall not include
any payments made for the maintenance of the minor or remuneration
due to professionals for services rendered by them, being such
professionals engaged within the Director Alternative Care (Children and
Youths) and involved in the care of the minor or in other professions and
acting according to their profession.
(1)
Without prejudice to regulations made under this Act,
no one may publish or cause to be published in any newspaper, periodical
or other printed matter or by means of broadcasting, television, public
exhibition or by any other means, any advertisement, news item or other
matter which indicates
(a)
that a minor may be placed in alternative care;
(b)
that a person intends to care for a minor in
alternative care;
(c)
that a person intends to make arrangements for the
placement of a minor in alternative care;
(d)
the name of an alternative carer if by doing so any
detail on the minor is revealed;
(e)
the name of the minor placed or to be placed in
alternative care;
(f)
the name of a parent, curator or tutor of a minor
which was placed or will be placed in alternative care; or
(g)
anything which may lead to the identification of
one of the persons mentioned
Provided that this article shall not apply to foster
carers when they present themselves as such and without any
minor being identified, directly or indirectly, by them.
(2)
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 three months and not exceeding six months or to a fine
(multa) of not less than one thousand and two hundred euro (€1,200) but
not more than two thousand and five hundred euro (€2,500), or to both
such fine and imprisonment, without prejudice to any order for the
payment of damages that are deemed fit in the circumstances.
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 two hundred euro (€1,200) but not more than two thousand and five
hundred euro (€2,500), or to both such fine and imprisonment, if such
person
(a)
threatens or forces any authorised or approved
alternative carer to give up a minor placed in their care;
(b)
takes the minor away from any authorised or
approved alternative care provider against the will of the minor,
without the approval in writing of the Fostering Board, or the
Court, or the Director Alternative Care (Children and Youths) or
any other relevant entity or authority, as the case may be;
(c)
threatens or forces any authorised or approved
alternative carer to give up any order issued by any court or issued
by virtue of this Act;
(d)
threatens or forces any authorised or approved
alternative carer to act in breach of the provisions of this Act;
(e)
threatens or causes any type of damage to any
authorised or approved alternative carer; or
(f)
forces entry into the premises of any authorised or
approved alternative carer by violence or against the will of the
alternative carer.
Any person who in any way hinders or obstructs any of the
boards, authorities, agencies, entities, directors or officers mentioned,
accredited, established or licensed under this Act, in the performance of
any of their functions 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
five hundred euro (€1,500) but not more than two thousand and five
hundred euro (€2,500), or to both such fine and imprisonment.
(1)
Unless in the circumstances of a particular case no
other offence is provided for in this Act or by another law, which offence
would be liable to a higher penalty than that which is provided in this
article, any person who acts aggressively against a social worker, a foster
carer or any other person which is in any way involved in any decision,
responsibility or measure according to this Act, which involvement
includes the exercise of rights or the fulfilment of responsibilities or
functions given to it by this Act or by any other law for the fulfilment of
the provisions of this Act, shall be guilty of an offence
Provided that in a case in which an offence is liable to a lighter
penalty than that provided in this article and the circumstances of such
offence are also in breach of this article, the penalties of this article shall
apply to that offence.
(2)
Any person found guilty in accordance with sub-article (1)
shall be liable to imprisonment for not more than two years or to a fine
(multa) not more than ten thousand euro (€10,000), or to both such
imprisonment and fine.
(1)
If any minor in relation to whom any minor protection
order is made absconds from the premises at which he is required to live
or is absent from such premises at a time when he is not permitted to be
so absent, he may be apprehended without warrant by any member of the
Police and taken back to such premises.
(2)
Any person who knowingly compels, incites or assists or in
any way aids or abets any minor to abscond or to become or continue to
be absent as mentioned in sub-article (1) shall be guilty of an offence and
shall be liable, on conviction, 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 six (6) months and not exceeding three (3) years or to a fine
(multa) of not less than two thousand euro (€2,000) but not more than
five thousand euro (€5,000), or to both such fine and imprisonment
Provided that if following the abscondment, any person
takes the minor out of Malta or assists or in any way aids or abets the
minor to leave Malta, shall be guilty of an offence and shall be liable,
on conviction, to imprisonment for a term from two (2) to four (4)
years or to a fine (multa) of not less than than five thousand euro
(€5,000) but not more than ten thousand euro (€10,000), or to both
such fine and imprisonment.
When a person is found guilty of an offence under this Act or
under 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 (multa) of
not less than two hundred and fifty euro (€250) but not more than two
thousand and five hundred euro (€2,500).
PART VII
OF REGULATIONS
(1)
The Minister may make regulations for the better
carrying into effect of the purposes of this Act.
(2)
In particular and without prejudice to the generality of sub-
article (1), such regulations may provide for
(a)
the protection, supervision and control of minors
placed in alternative care;
(b)
the registration, monitoring and control of
alternative care services and for the refusal or revocation of that
registration;
(c)
the agreement for the placement of a minor in
alternative care;
(d)
any right and obligation pertaining to alternative
carers;
(e)
the rights of minors;
(f)
the services which homes for residential care shall
provide;
(g)
the different types of alternative care;
(h)
offences and penalties for the breach of the
provisions of this Act and regulations made thereunder;
(i)
the procedure that shall be followed by boards
established under this Act and to establish rules on their powers;
(j)
the activities of entities established in this Act; and
(k)
any matter which is incidental to and
supplementary for the effective implementation of this Act, as the
Minister may deem expedient to provide.
PART VIII
TRANSITORY PROVISIONS
(1)
If, prior to the date of coming into force of this Act,
any report was lodged about a minor, which report would require
investigation, said investigation shall be concluded by the Director
(Child Protection), within six months from the date of entry into force of
this Act.
(2)
The said term may be extended by the Director for an
additional term of three months.
Without prejudice to the provisions of this Act, any action
filed before the coming into force of this Act shall be decided according
to the legal provisions in force on the date of filing.
Any request for revision made to the Court in accordance with
article 4(5) of the Children and Young Persons (Care Orders) Act
before the coming into force of this Act shall continue to be heard by the
mentioned Court until it is decided upon
Provided that in case of appeal according to article 66, from a
decision by the Juvenile Court given under article 4(5) of the Children
and Young Persons (Care Orders) Act, it shall be the Court of Appeal
which is to hear the case, but it shall not do so before four months from
the decision of the Juvenile Court.
All cases pending before the Children and Young Persons
Advisory Board under the provisions of the Children and Young Persons
(Care Orders) Act, before the coming into force of this Act, shall
continue to be heard by the Review Board upon the coming into force of
this Act.
The care and custody of those minors that is vested in the
Minister after a care order was issued for their care and protection in
terms of the Children and Young Persons (Care Orders) Act shall now
be entrusted to the Director Alternative Care (Children and Youths)
until and unless it is decided that at the first review of each case, that it
is in the best interest of the minor that the care and custody is entrusted
to another person or entity
Provided that the care and custody of those unaccompanied
minors that is vested in the Minister after a care order was issued for
their care and protection in terms of the Children and Young Persons
(Care Orders) Act shall now be entrusted to the Chief Executive
Officer of the Agency for the Welfare of Asylum Seekers.
Without prejudice to the provisions of this Act, the Director
(Child Protection) shall have ten (10) working days from the coming
into force of this provision to file an application in the acts of each of
the cases applications pending before the Juvenile Court at the time of
the coming into force of this provision, to request any amendments to
the said applications or acts filed for these to be brought in line with
the provisions of this Act as amended
Provided that the Juvenile Court shall hold a sitting at the
end of such period to review each of the pending applications before it
and regulate matters to be brought in line with the provisions of this
Act as amended.
The freeing up for adoption of minors signed by the
Minister prior to the coming into effect of this Act shall be considered
as being final and effective for all intents and purposes of this Act.
Minors who have been in the care of foster carers for five
(5) or more years prior to the coming into effect of this Act shall be
exempted from the requirement of three positive reports as required
under article 54. Such foster carers may proceed with the adoption of
the minor under their care in terms of article 54 after informing the
Director Alternative Care (Children and Youths) in writing of their
intention and a detailed report is drawn up by the Director Alternative
Care (Children and Youths).