Author
The Minor Protection (Alternative Care) Act came into force in July 2021, replacing earlier legislation on the protection of children in need of care and support, including unaccompanied minors and/or separated children. The Act establishes the position of the Director (Protection of Minors) within the Foundation for Social Welfare Services (FSWS), Malta’s welfare entity, who is responsible for protecting minors. It introduces the duty for all professionals to report any minor who is at risk of suffering or being exposed to significant harm and establishes various forms of protection orders the Court may impose, including care orders.
In terms of Article 21 of the Act, “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”.
The Act provides that immediately after the registration of the minor and the issuing of appropriate identification documents, the Director (of Child Protection) shall request the Court to provide any provisional measure relating 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. AWAS is identified by the Act as being the entity responsible for the care of unaccompanied minors and will act as the legal guardian.
The amendments to the Reception Regulation of December 2021 also reflect these changes. The Regulations now provide that “entity for the welfare of asylum-seekers shall as soon as possible take measures to ensure that the unaccompanied minor is represented and assisted by a representative”.[1]
After receiving the conclusions of the investigations and evaluations from the competent authority (AWAS) that 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 and shall prepare a Care Plan. In practice, the Court will entrust the UMAS to the care of AWAS. There is no maximum number of children that may be represented by the same person or entity.
The Procedural Regulations provide that, as soon as possible and no later than 30 days from the issue of the Care Order, unaccompanied minors shall be represented and assisted by a representative during all the phases of the asylum procedure.[2] The assigned legal guardian is an AWAS social worker from the UMAS Protection Team who must have the necessary knowledge of the special needs of minors.
On the contrary, if the investigations and evaluations from the competent authority establish that the applicant is not an unaccompanied minor, the Director (Child Protection) shall request the Court to revoke its first decree and to provide according to the circumstances of the case.
In practice, AWAS is the entity responsible for referring the minor to the Child Protection Services which would then request the issuance the temporary care order to the Court. Upon confirmation by AWAS that the individual was assessed as an UAM, then it would inform the Child Protection Services of its conclusions for it to request the Court to issue a Care Order and confirm a care plan.
2023 saw major improvements in the procedures relating to UAMs. The referrals to Child Protection Services were conducted within days of arrival, promptly followed by the necessary applications to the Courts for the issuing of Care Orders. The above-mentioned division within AWAS now ensure that children are indeed provided with a legal guardian.
In 2024, the key concerns of previous years were confirmed by NGOs regarding Age assessment of unaccompanied children.
NGOs have expressed their disagreement with a system whereby AWAS is entrusted with the guardianship of unaccompanied minors, stating that ‘the multiple roles and responsibilities of persons currently working as representatives for UAMs coupled with limited capacity and resources may result in conflict of interest issues to the detriment of the minors’, adding that ‘It is clear that it’s involvement in so many aspects of the child’s life do not only pose a huge strain on the Agency’s capacity but, in particular, positions it in several situations of conflict of interest. We have encountered several such instances in our work with UAMs and, inevitably, the burden of these short-comings is borne by the children themselves.’ NGOs exhorted the Government to commit to exploring alternative guardianship options that will ensure a quality and independent service with the child’s best interests in mind, including with the support of entities such as the European Guardianship Network.[3]
In theory, it is the role of the Minors Care Review Board – established in the Minor Protection Act (Article 31) – to review care plans made in respect of unaccompanied children and to take decisions on the child where there is disagreement. NGOs noted that, in practice, the Board does not perform an active role in relation to unaccompanied children. Although it would be possible for the child to present complaints to the Board, in practice the child is rarely provided with this information and hardly ever engages with the Board. Since the law establishes AWAS as the entity providing representation for unaccompanied children, it is not clear what would happen if the child expressed disagreement with their representative or a wish to have the representative changed.[4]
AWAS is the assessor, the legal guardian and the entity responsible to accommodate and provide protection and care to the UMAS, which raises concerns regarding the agency’s ability to ensure that no interference exist between these activities and with the Ministry for Home Affairs, under which AWAS falls.
Despite recent improvements in the age assessment procedure (see Identification), the legal representative’s position as an employee of AWAS and the Leader of the UMAS Protection Unit raises serious concerns as to the level of independence enjoyed from other State Entities. JRS and aditus reported that the legal representative is not present at any stage of the age assessment procedure and has already acted against the best interest of the child on several instances, including refusing to facilitate the release of unaccompanied minors pending age assessment appeal procedures.[5]
[1] Regulation 14(1)(b) of the Reception Regulations, S.L.S.L. 420.06.
[2] Regulation 18 Procedural Regulations, S.L.S.L. 420.07.
[3] aditus foundation, Technical Comments on Bill No. 2 of 2022, June 2022, available at: https://bit.ly/3EVTSTM, 11.
[4] The Ministry of Home Affairs, Security and Employment states that if the minor requests a change in legal guardian, this request is duly considered and may be accepted, provided it is deemed to be in the best interest of the minor. See information provided by the Ministry of Home Affairs, Security and Employment on 24 July 2025, see annex to the report. However, it should be noted that any other legal guardian would also be an AWAS employee, thus not resolving the issue of the conflict of interest.
[5] Immigration Appeals Board (Div. I), A.M. v. The Principal Immigration Officer, 5 November 2021, available at: https://bit.ly/3jba8bL; Immigration Appeals Board (Div. I), Y.M.O. v. The Principal Immigration Officer, available at: https://bit.ly/3j070zE.