Adoption is defined by Watson in Triseliotis et al. (1997:2)77 as “a mean of meeting the developmental needs of a child by legally transferring ongoing parental responsibility from birth parents to adoptive parents, recognizing that in the process we have created a new kinship network that forever links these two families together through the child who is shared by them both.”

Whereas in Roman times, adult adoption was predominant and parents used to adopt in order to ensure a successor’s line, nowadays the institute of adoption is mostly perceived as a service to a child.

Inter-country adoption became more common after World War II where a lot of orphans were left abandoned due to the war, political turmoil, natural disaster and poverty. Legislation increased state responsibility to safeguard the best interest of the child – the child being the centre of the adoption procedure. In fact, article 20 and 21 of the 1989 United Nations Convention on the Rights of the Child identifies adoption as one of a range of options for the alternative care of children who find themselves unable to live with their birth families.

In the adoption process the role of the State is essentially that of forming a new family. Domestically, the institute of adoption is mainly regulated by Chapter 495 of the Laws of Malta entitled Adoption Administration Act. The provisions of this enactment may be classified under 4 main categories– those dealing with the appointment and powers of the adoption board, those revolving around the central authority, those regulating the accredited agencies and the provisions with respect to the board of appeal.

This eligibility to adopt a child and the requirements for adoption will be discussed in detail later on.

During 2018, there were 54 Maltese couples who adopted children from foreign countries. It must be pointed out that during the last six years 154 children were adopted. This figure includes the adoption of 25 Maltese children by Maltese adoptive parents.

How does the adoption process work? Primarily, the accredited agency receives and processes the application forms from persons wishing to adopt. Subsequently it will provide training to the applicants and then prepares a home study report on prospective adopters in order to assist the suitability of the applicants. Once the adoption has gone through and a child has joined a family, the Adoption Services continues to provide the necessary support to ensure the well-being of the child.

The best interest of the minor is of paramount important and supersedes the rights of third parties, this was discussed in an interesting case decided by Court of Appeal on the 29th May, 2015, ‘A et vs C et.’. The facts of the case are the following, A were the parents of B (who passed away tragically). Before his death, B had a relationship with C; from this relationship the minor D was born. Nonetheless mother (C) registered her child under ‘unknown father’ and consequently B was not recognised as his father. The parents of B filed legal proceedings before the Civil Court (Family Section) to declare their deceased son (B) as the natural Father however, during these proceedings, it transpired that C got married and her husband adopted the minor D. To this effect, the parents of B filed legal proceedings to challenge the adoption decree. Interestingly, the Court of Appeal held, “il-Qorti ma jidhriliex li jkun fl-interess tal-minuri li d-digriet tal-addozzjoni jithalla jigi attakkat. F’kazijiet ta’ din in-natura, huwa l-interess tal-minuri li hu suprem u jipprevali zgur fuq kwalunkwe interess li jistghu jivvantaw l-atturi. Il-minuri ghandu madwar tmien snin, u ghamel dan iz-zmien kollu jghix ma’ ommu; l-ahhar erba’ snin ghamilhom ma’ zewg ommu li trattah bhala ibnu. Ma jkunx fl-interess tal-minuri li jinqala’ minn dak l-ambjent jew tpoggi f’konflitt is-sitwazzjoni prezenti mar-realta`. It-tifel qed jitrabba f’familja b’omm u missier, u fis-sitwazzjoni tieghu u fl-eta` li jinsab fiha, ma jkunx flinteress tieghu li jiccahhad minn din l-istabbilita`. L-atturi jista’ jkollhom interess jistabbilixxu l-vera paternita` tal-minuri, pero` mhux l-istess jista’ jinghad biex tithassar l-addozzjoni tal-istess minuri.” The Court of Appeal rejected their pleas.
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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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As wonderful as the word ‘leave’ sounds, this is very important in the work and social life. The benefit of taking leave promotes good physical and mental health in the workplace and improves people’s work-life balance, which in turn boosts employees’ enthusiasm and productivity upon their return.

The Minimum Special Leave Entitlement Regulation lays down the minimum entitlement of sick leave, birth leave, bereavement leave, marriage leave, injury leave, and leave for jury services to whole-time employees. Recently, another form of leave entitlement was introduced by means of Legal Notice 62 of 2020 – the paid quarantine leave for all employees, payable by the employer.

What is an employee entitled for in terms of vacation leave?

With effect as from 1st January 2020, an employee working 40 hours per week is entitled to 216 hours of paid annual leave. This is calculated on a 40-hour working week, and an 8-hour working day. If the average normal hours (excluding overtime) calculated over a period of 17 weeks is below or exceeds 40 hours per week, the vacation leave entitlement in hours should be adjusted accordingly.

Interestingly, the employee has the possibility to take the leave in hours (rather than whole days) through mutual agreement with the employer. Nevertheless, if no agreement has been reached, the leave must be availed of as whole days.

Apart from vacation leave, what is the minimum special leave that an employee is entitled to?

In terms of article 4 of Legal Notice 62 of 2020, every employee is entitled for:

(a) one working day of bereavement leave;
(b) one working day of birth leave;
(c) two working days marriage leave;
(d) up to one year of injury leave;
(e) jury service leave for as long as necessary;
(f) quarantine leave for any period of quarantine as may be determined by the Superintendent of Public Health or by any other public authority

This being said, any collective agreement or private employment agreement can stipulate different annual leave rules so long as such agreements are more favourable to the employee.

What about sick leave?

The amount of sick leave varies substantially according to the relevant sector of industry. Where the sector is not covered by a Wages Council Wage Regulation Order, an employee is entitled to two working weeks of sick leave annually.

Additionally, the employer is only obliged to pay the amount of sick leave entitlement provided by law. If an employee remains sick after having exhausted all the sick leave entitlement, the employee will only continue to receive the sickness benefit from the Social Security to which the employee may be entitled.

What about quarantine leave?

After the Covid-19 pandemic, the Minimum Special Leave Entitlement was amended to introduce special paid quarantine leave to all employees. The employee is entitled to paid quarantine leave for any period of quarantine as may be determined by the Superintendent of Public Health. This type of leave is over and above any other leave and cannot be deducted from the employee’s annual leave or sick leave.

But how does the law define quarantine leave?

The law defines quarantine leave as,

“as leave to be granted to the employee without loss of wages in such cases where the employee is legally obliged to abide by a quarantine order confining the employee to a certain area or to certain premises as determined by the Superintendent of Public Health by any public authority under any other law.”.

Upon the return of the employee to work, the employer is entitled to request evidence from the employee ascertaining that the employee was obliged to abide by quarantine order.

But, who is legally obliged to abide by a quarantine order?

In terms of S.L. 465.13, any person arriving in Malta from any country other than those listed in sub-article (3) must submit himself to a fourteen (14) day period of quarantine immediately upon his arrival in Malta. At the time of writing, this list included Austria, Cyprus, Japan, Jordan, Romania, Portugal, Italy and Denmark. This order applies to persons who live in the same residence who is in mandatory quarantine.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Graziella Cricchiola on graziella@azzopardilegal.eu.

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