The proposed Family Division of the Civil Court will profoundly affect many people’s lives. Yet it is regrettable that the White Paper has generated little public controversy beyond the subject of legal separation and only a minimal amount of on going, general public debate. This is disappointing, particularly since the setting up of a family court has been on the agenda since 1996. A commission chaired by Mr Justice Noel Arrigo was set up in January 1997. This Commission produced a detailed report in July of that year. After five years of intermittent discussion and analysis the White Paper was published early in June of this year. This White Paper points out that during the discussion stage “a number of fundamental disagreements were identified between the social and juridical aspects involved in setting up the Court. These basically concerned the extent of jurisdiction, the dual criminal and civil jurisdictions and the control of the proposed conciliation and mediation process.“ However recent contributions to the local media seem to indicate that the major disagreements tend to focus on the procedures surrounding the introduction of a three month mandatory period of conciliation and mediation prior to the initiation of the pre-trial and the trial-phase of the separation. Yet the reforms are more far reaching and also directly address the rights of children. However the children sit in the back seat while the reforms that affect the procedures of obtaining a legal separation are in the forefront of the debate.

Public and Private Law

One of the central aims being proposed is to bring together in one division of the civil Court as much as possible of the public and private law affecting the family. Both public and private proceedings will be 'family proceedings' for the purpose of this proposed specialised Family Division. The white Paper states that Government is giving priority to the basic principle of the promotion of ‘the unity of the family and the resolution of problems arising therein through mutual agreement.’ This line of thought is consistent with Maltese tradition and culture and also with the U.N. Convention on the rights of the child. The Preamble states that: ‘Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.’ There is no doubt that the work will be enormously diverse, and cross all social as well as most professional and legal boundaries.
In child law, it will cover all the provisions of our civil and criminal codes that relate to children and that will shortly be considerably extended and incorporated into the long awaited Children Act along the lines of the 1989 English Children Act and the later Scottish Children Act. In addition, there will be the numerous questions of statutory construction, both in its public and its private law sections that our Children Act, still in draft form, will raise.
Child Ombudsman
It is undisputed that most of the changes suggested in the white paper regarding legal separation will have a direct bearing on the lives of children. Indeed, the welfare of the child can be seen as the overriding principle that underlies the formation of this court. It is mainly for the benefit of these vulnerable and often voiceless persons that the whole idea of a Family Division makes most sense. Research shows how much harm and suffering children who are directly or indirectly parties to an adversarial lawsuit have to live through. For this reason it would have made sense if we had first established the position of the child ombudsman.

For if we are to ensure the careful and effective implementation of children’s rights we also need to see the adoption of the final draft of an act establishing the post of an ombudsman for children. The terms of reference of this position are to include the careful assessment of all laws, regulations, policies, plans and institutions and see how these affect the lives of children. This will provide a voice for children just as it has done in countries like Norway and Sweden where the institution of an ombudsman for children has been operative for some time now. An Ombudsman will also offer the services of representation to the child who requires it. The ombudsman can also monitor the introduction and rigid implementation of the child impact statement in all the fields referred to above.

In the concluding observations of the U. N. Committee of the rights of the Child in its examination of the Maltese Government's compliance with the UN Child Convention, it notes the plans for the establishment of an Ombudsperson for Children and highly recommends this move.