Appeal on access case partially upheld

The Constitutional Court yesterday partially upheld an appeal filed by an Algerian and decided that the ruling of the First Hall of the Civil Court denying him access to his son was in violation of his fundamental human rights.

The court, composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti, delivered its judgment in the proceedings filed by Lanouar Bounab in his personal capacity and on behalf of his minor son Yousef Bounab against the Attorney General and against Karen Bounab.

In its judgment the court noted that separations were pending between Bounab and his wife in the First Hall of the Civil Court, which had ruled that the care and custody of the 10-year-boy were to be entrusted to the mother. The father had access to the child in terms of the court order.

However it resulted that in August 2002 the father had failed to return the child to his mother but had taken him to Algeria despite the issue of a warrant of prohibitory injunction forbidding the minor from leaving the country. The child was sent back to Malta some weeks later and the father followed subsequently. On his return, the father had repeatedly requested the First Hall of the Civil Court to allow him access to the minor but such requests were repeatedly refused.

Bounab then filed a constitutional application in the First Hall of the Civil Court claiming that his fundamental human right to a fair hearing had been violated. He also claimed that the refusal on the part of the Family Court to allow him access to his son was in violation of his right to family life.

The First Hall of the Civil Court (in its constitutional jurisdiction) dismissed his claims and he appealed to the Constitutional Court.

In yesterday's judgment, after dismissing two procedural issues raised by Bounab, the Constitutional Court proceeded to examine the various applications filed by Bounab in an attempt to regain access to his son. The court noted that soon after Bounab and his son had disappeared from Malta, the mother had filed an application in the First Hall of the Civil Court (that was hearing the separation proceedings) and had requested that her husband's rights of access to the child be totally removed. This request was provisionally upheld by the First Hall of the Civil Court. The mother then filed another application requesting the court to order her husband's lawyers to provide any information they might have as to his intentions. This application was dismissed by the court.

Upon Bounab's return to Malta he filed an application requesting permission to see his son. This application was dismissed immediately by the court.

Two months later he filed another application requesting access to his son, even if necessary at the police station. This application was again dismissed by the court.

Six months after his return, Bounab again filed another application asking for access to his son, even at the police station. In reply, the wife objected to this on the basis that this would be traumatic to the child and also because there was the possibility that her husband could again abscond with the son. The First Hall of the Civil Court again dismissed Bounab's application and he filed his constitutional proceedings. The Constitutional Court dismissed Bounab's submission that he had not been given access to judicial proceedings.

Bounab had clearly had the right to file judicial proceedings and the dismissal of his various applications by the court was not tantamount to a violation of the right to court. No evidence had been produced by Bounab to substantiate his allegation that he had not been given a fair hearing before the courts.

When referring to his submissions about his right to protection of family life the court pointed out that applicant, his wife and his son undoubtedly comprised a family, albeit one facing difficulties. The prohibition imposed by the Family Court in the sense that Bounab could not see his son was certainly interference in his family life.

The Constitutional Court declared that it had to examine whether such interference was justified in terms of law, for such a prohibition could only be justified if there existed extremely valid reasons.

The Constitutional Court disagreed with the findings of the first court that there existed relevant and sufficient reasons for the ban on access, for measures could have been taken to avoid the possibility of Bounab absconding from the country with his son. Furthermore, no evidence had been produced to substantiate the wife's claim that the son would be traumatised by access to his father.

The court therefore ruled that the total prohibition of access was in violation of Bounab's right to family life but that it was the Family Court that was in the best position to evaluate all the circumstances of the case and to establish whether there was a genuine risk of psychological trauma to the child if access was resumed.