Previously the law in force in Malta stipulated that fathers who are still under the age of eighteen cannot be recognised as legitimate parents. This meant that whilst mothers could have been listed on the child’s birth certificate as a parent, and this notwithstanding that they too may have been minors, fathers could not be listed as the legitimate father and in turn the birth certificate would have read as having an “unknown father.” However, after much debate, especially at parliamentary level, Act No XXVIII of 2024 was passed amending the provisions in this regard.
Malta first lowered the age of sexual consent to sixteen years in 2018, as a means of correcting the lacuna in the law that allowed sixteen year olds the right to get married in a context where sexual consent could only be given at eighteen. Fast forward 6 years, the proviso to Article 86 of the Civil Code had still stated that a child conceived or born out of wedlock may be acknowledged by the parents either jointly or separately but this acknowledgement becomes null if the parent who did not give birth i.e the father, is a minor.
As a result, these lacunas, amongst various others, started to create contradictions, confusion and even injustice in certain instances. The law previously in place not only failed to provide a cohesive and fully functioning system, but could also have potentially given rise to parental rights abuses and discrimination. This was purely why a major change had to be effected.
In fact, as the law previously stood, a number of potential human right breaches could have been potentially brought up in court by minor fathers, and prospectively even by their children. For instance, a minor father could have argued that the said law not only infringes upon his right to respect for private life, family life, and establishing one’s identity, but the child could also potentially claim that his right to have access to his parentage, the right to know and be cared for by his/her parents, the right to have respect of their family life, and the right to access to parental maintenance and inheritance, have been breached.
In this regard, the European Court of Human Rights in Mennesson vs. France [65192/11], held that:
“Respect for private life requires that everyone should be able to establish details of their identity as individual human beings, which includes the legal parent-child relationship ...; an essential aspect of the identity of individuals is at stake where the legal parent-child relationship is concerned.”
Correspondingly, one may also distinguish that the law previously in force could have eventually given way to abuse where the minor father decides to take advantage of this anomaly in order to avoid legitimacy, parentage and the parental responsibility that comes with it.
The law passed as an act aimed at amending the Maltese Civil Code, in order to improve the procedures of adoption in Malta. However, along with a number of amendments on the adoption, the long sought out for and needed amendments with reference to minor fathers’ rights were introduced. The amendment eradicated completely the first proviso to Article 86 of the Civil Code. This means that the age limitation has now been completely removed, allowing whomever desires to be registered as a father to do so.
Thus, the bill was officially rendered an amending act, and minor fathers now have more equal rights and obligations. In this way, children’s rights will also be further safeguarded.
Author: Catriona Cuschieri.
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