M. Schembri writes: What rights to access to children does the EU give in cases of separation or annulment?
As such EU law does not regulate the issue of access to children in cases of separation, annulment or even divorce. It is up to the national courts, not the EU, to determine questions of who gets the custody of the children or to regulate access by the other parent that does not have the custody. This means that if, say, a parent feels s/he has not been given sufficient access to the children by the local court there is no appeal or other remedy at EU level. The matter lies at the national level and must be settled there. The EU does not provide a solution here.

I have come across complaints from parents, particularly fathers, who feel that, in determining access to children, the court gave them too little time to spend with their own children. This is a heart-breaking situation and I hope that those concerned in dealing with these very delicate matters take due account of the interests of all concerned - first and foremost the interests of the children but equally the interests of both, not just one, of the parents.

Having said that, for the parent who is aggrieved by a decision on custody or by a decision which gives very limited access rights, there is no direct remedy that s/he can get as a result of EU membership. The reason is that the EU has no competence to deal with such matters.

On the other hand, the EU does come in to regulate matters when, following a separation, the parents live in different EU countries.

One EU law that entered into effect this month deals with the enforcement of judgments relating to access rights and cases of abduction. This law seeks to make things easier in cases which become complicated when one of the parents moves with the children to another EU country or in cases where one of the parents abducts the children from one EU country to another.

The new law provides that the parent who has access rights to children who live in another EU country can rely on the direct recognition and enforcement of the court order or judgment that gives him or her the access rights.

This means that if a judgment giving you access rights is delivered by a Maltese court it will now be automatically recognised in all the other EU countries without the need to institute other legal proceedings in the country where the children live. All you have to do is obtain a certificate from the Maltese court and enforce the order in the second country.

The new law therefore gives the parent concerned a legal short-cut and avoids the trauma of further legal proceedings in a foreign country.

With regard to abduction, the new law strengthens the provisions that were already available under an international convention, known as the Hague Convention, that dates back to 1980. In particular, it makes it easier for the parent whose child was abducted to enforce the return of the child.

Although in this case you still need to institute legal proceedings in the country where the child was abducted, the new law makes these proceedings more expeditious, imposing a deadline of six weeks for a decision. Crucially, the law also gives the final say to the court of origin, that is to say, the court of the country where the child used to live before the abduction.

Let's say a child is abducted from Malta to the UK by one of the parents. In this case, the other parent would need to apply to the UK court to request the return of the child to Malta. In principle, the UK court should accept this request and order the return of the child. But if the UK court refuses, it has to notify the Maltese court with its decision and the final say would lie with the Maltese court. If the Maltese court decides that the child must be returned, then this Maltese judgment can be automatically enforced in the UK.

This means that notwithstanding the abduction, the Maltese court (which is the court of normal residence of the child) retains the right to the final decision. This is good because it removes the incentive of a parent running off with the child to another country in the hope of sheltering under the legal system of that country and evading justice.

Note, however, that since this is a new law, in principle it only applies to cases instituted after Malta joined the EU, not to cases instituted earlier.

Readers who would like to raise issues or ask a question are invited to send an e-mail to Dr Busuttil, making reference to this column, to contact@simonbusuttil.com

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