The Court of Appeal yesterday delivered judgment on a cross boundary child custody case.
The judgment was delivered by Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.
The court heard that the Director of Standards in Social Protection had, on December 4, requested the Gozo Court to recognise and enforce a judgment delivered by an English court which had, on November 29, ordered the return of a minor child to the United Kingdom.
The English court's judgment was delivered following a request filed by the mother who claimed that the child was being detained in Malta by his father, a Maltese national.
The English court had ordered that the minor child be returned to England under the responsibility of the DSSP.
But the father claimed that he was separated from his English wife by a judgment of the English courts and that the latter courts had issued a residence order in connection with the minor.
The child had come to Malta last July by agreement between the parents.
According to the father, the child had given him certain information which had led to the father asking the Gozo court to order that the child not be returned to England.
In July the court upheld his request.
The DSSP had then asked the Gozo court to order the child's return to England following the English court's judgment.
The Gozo court upheld the request on December 4 and the father resorted to the Court of Appeal claiming that the first court had erroneously interpreted the Council Regulations (EC) that governed such situations.
According to the father, once the Gozo court had, in July, authorised the minor to remain in Gozo, prior to the English court's judgment, then he could not be held to have abducted his own child. The DSSP, on its part, contended that the July decree by the Gozo court was merely a temporary one and that the mother had not been heard.
The Court of Appeal noted that the proceedings instituted by the DSSP against the father aimed at obtaining the recognition and enforcement in these islands of a judgment delivered by the English courts.
The proceedings that had preceded the case filed by the DSSP were only marginally relevant to this case.
The Council Regulations on this issue entitled the courts of a member state to take provisional and protective measures in respect of persons, even if another member state had jurisdiction as to the substance of the matter.
There was no doubt that the country of habitual residence of the minor was the UK. Thus, the English courts had jurisdiction as to the substance of the case concerning the child. According to the regulations, the provisional and protective measures taken by a member state ceased to apply when the court having substantive jurisdiction had delivered a judgment.
The father's request for the child to remain in Malta in terms of the decree delivered by the Gozo court in July was therefore inadmissible, the Court of Appeal ruled.
When examining the DSSP's request for the enforcement of the English judgment of November 29, the Court of Appeal found that when there was a judgment of "non-return" of a child, any subsequent judgment requiring the return of a child delivered by a court having substantive jurisdiction was to be enforced by another member state.
The Gozo court had been correct when it had opted to order the return of the minor to England after the November judgment of the English court which had jurisdiction on the substance of the case.
The Court of Appeal, therefore, dismissed the father's appeal and confirmed the Gozo court's judgment which had ordered the child's return to England within one week.