Judges order child removed from Turkey stays in Malta

The Court of Appeal yesterday dismissed an appeal and confirmed that a child removed from Turkey by her mother would remain in Malta.

The court heard that the Director of the Standards Department in Social Welfare had filed proceedings in the First Hall of the Civil Court against the child's mother.

According to the director, the woman had married a Turkish national in Malta and they had a daughter who was now five years old. The child was born in Malta. In June 2005, the couple went to live in Turkey.

The director said that the mother had illicitly removed her daughter from her habitual residence in Turkey in September 2006 and had returned to Malta with the child. The Turkish central authority, in terms of the Child Abduction Act, had asked the Maltese equivalent to take action to ensure the immediate return of the child to Turkey.

However, the First Hall of the Civil Court had dismissed the director's request and had ruled that no evidence was forthcoming as to who had custody of the child.

The first court noted that the couple had gone to Turkey in 2005 so that the husband could find employment. The couple experienced difficulties and the wife informed her husband that she planned to return to Malta with their daughter. The husband had then stopped allowing the wife to see the child. He had also commenced proceedings before the Turkish courts but the wife left Turkey before the Family Court of Turkey had granted the husband the care and custody of the child.

The first court ruled that, although the couple had gone to Turkey, the wife had informed the husband of her intention to return to Malta after one year in Turkey. Furthermore, no evidence was forthcoming about Turkish law and which of the parents had the care and custody of the child. The court said it was worried that the child might suffer psychological damage if she was made to return to Turkey now after living in Malta for two years.

The director then appealed to the Court of Appeal composed of Chief Justice Vincent Degaetano, Mr Justice Albert Magri and Mr Justice Tonio Mallia.

The court noted that the proceedings were based upon two international conventions, now incorporated in Maltese law, on international child abduction. The Maltese courts were authorised to order the return of a child to its country of habitual residence if it was proven that the child had been removed from such country in violation of the custody rights of its parents. One had therefore to prove that the child had been illegally removed to another country from the control of the parent granted custody.

The Court of Appeal said that it was going to assume that the child's habitual residence, at the time she had been taken to Malta, was in Turkey. However, no evidence had been produced by the director to show which of the parents had care and custody of the child in terms of Turkish law. The director had not proven that the father had custody of the child at the time of her removal from Turkey. It was only after the child had been brought to Malta that the Turkish courts had awarded care and custody of the child to the father.

The court, therefore, confirmed the first court's judgment.

Lawyers Shazoo Ghaznavi and Anna Mifsud Bonnici appeared for the woman.