The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia, on October 19, 2010, in the case “A ( woman) vs B (father)”, held among other things that (in a case involving a father’s right to visit his child) access by both parents was not only a right of the parents but a right of the children and a parent would be denied such access only for serious and grave reasons. Such rights should not be compromised by any behaviour of one of the parents, who had a duty to ensure that such rights were reasonably exercised.

The facts in this case were as follows:

A mother had been granted custody of her minor son and the father was given limited rights of access. Subsequently the woman obtained permission to relocate to the UK to further her studies.

The Malta Family Court gave her permission to take her son to the UK on April 30, 2009. Its decision was confirmed on appeal on June, 9, 2009 subject to minor modifications. The permission was to remain in force until April 30, 2010.

By these proceedings the woman applied to the Maltese courts for an extension to the original permission to be able to continue to reside in the UK, with her son, subject to such measures as the court deemed necessary. It was stated that it would be disrupting for her son to return to Malta, as he was mid-way through the scholastic year.

In reply, the father contested her request on grounds that she did not adhere to the court’s conditions, denying him proper access to his son. He claimed that:

(1) Prior to her leaving these islands with the child, she was to present a sworn note in the court registry indicating in detail her full residential contact address in the UK; and she was also bound to present such a note each time she changed her residential contact address when in the UK. Not only did the woman not give her full residential contact address, never indicating which apartment in the block she was in, but she furthermore gave the wrong block address. Furthermore, though she changed her residential contact address repeatedly she never presented a note indicating such in the registry to this very day;

(2) She did not abide by the second condition that within a week of her arrival in the UK the child’s passport had to be deposited in the registry of the court of the locality or place where she will be residing with the child. She neither presented it within a week nor did she ever present it in the court registry of the locality or place where she claimed to have been residing with the child;

(3) Nor did she comply with condition No. 4 wherein it was stated that the mother was to present to the father a six-monthly schedule of her visits to Malta in connection with her lectures and research work in Malta, so as to enable the father to plan his visits to the UK; moreover, the two days were to be understood as two consecutive days. Indeed till today the mother had still not presented to the father this schedule, notwithstanding that the said decision was given on June 9, 2009 and the woman had left the Maltese islands during the week the father was meant to have access rights to his son in Malta, without in any way informing the father.

(4) She failed to bring the child to Malta, or send him accompanied during his scholastic vacations in summer, and in Christmas, to spend seven days with the father during these periods.

(5) She also failed to abide by the further condition given by the Court of Appeal wherein it was stated that the mother was in addition to give the address and other details of the school which the child would be attending and this within five days from the registration of the child with the school. Such note had to be filed in the registry of the first court and was also to be confirmed on oath by the mother.

(6) During her stay abroad she failed to make possible and allow personal contact by the father with the child on a monthly basis for 10 hours spread over a period of two days.

The father lamented that the mother failed to give him access to their son in the UK. He even initiated legal proceedings before the English courts.

The woman’s transgression allegedly rendered the father’s encounter with his son farcical and tragic. He was only allowed contact with his son on one occasion in a shopping mall, for one hour, in the presence of the mother. The man requested the court to refuse her demand for an extension and to reconfirm its decision that the mother had to return to Malta by April 30, 2010, to render effective his rights of access to his child.

On July 12, 2010, the first court refused the woman’s request for an extension. It noted that she did not abide by the court’s conditions to enable the father to have access to their son.

The court ruled that the mother had shown an acute and manifest resistance to comply with the court’s decree and, notwithstanding the efforts of the court to try to arrive at a temporary modus vivendi on this aspect, even by initially allowing her to be present for some time during the access, still she remained intransigent, either by interfering unduly during access, or by not turning up with the child, and literally going into hiding till after the access days when the father left these islands.

From the records of the proceedings it appeared that the woman had violated most of the conditions imposed by the court. It also appeared that, in the UK, she continued to conduct an intensive father-alienation exercise to the detriment of the child, and of the father. The court pointed out that these conditions were imposed, chiefly and primarily, in the interests of the minor child with a view to building and strengthening the child’s relationship with his father.

In view of the mother’s acute and manifest intransigence to comply with court orders and to give the father effective access to his son, the court was of the opinion that granting the requested extension to the woman was not in the interest of the child who has been deprived of his right to contact with his father.

Aggrieved by the decision of the first court, the woman entered an appeal, calling for its revocation.

On October 19, 2010, the Court of Appeal gave judgment by dismissing the appeal and by confirming the decision of the first court, dated July 12, 2010. The following reasons were given for its decision:

The court observed that the Malta Family Court had permitted the mother to take her son to the UK, subject to several conditions, which were intended to protect the father’s right of access. Permission was only granted for one year on the understanding that an extension would be granted if the woman followed in a total and faithful manner the court’s conditions.

There was no doubt that the woman did not observe all the conditions. In her appeal, the mother brought forward various reasons to justify her breach. She contested, in the first place, the jurisdiction of the Maltese courts as the child was currently residing in England. This court noted that the child’s habitual residence was and still is in Malta, as the child was only allowed to leave Malta for a brief and temporary duration because of the exigencies of his mother.

The child’s stay in the UK was strictly regulated by the court and, given that the mother was under a duty to return the child pursuant to this court’s order, it could not be said that the child “lost” his habitual residence.

The child had not settled in the UK. The mother’s stay was temporary. An agreement, even if warranted by the court, to send a child abroad for some temporary purpose was not sufficient to change a child’s habitual residence.

It was held in Re A (Wardship, Jurisdiction), decided by the High Court in the United Kingdom in 1995 (1 FLR 767), that sending a child abroad to a boarding school was not to be regarded as being more than for the “temporary purpose of education”, which did not change the child’s normal residence. The same principle applied in this case. In any case, even if a change in the habitual residence of the child were to be acknowledged, it was a principle of law under Regulation 2201/03 of the European Union that a change of habitual residence while proceedings were pending did not itself entail a change of jurisdiction.

Furthermore, in the circumstances, the court did not feel it would be in the best interest of the child to request a transfer of jurisdiction under Article 15 of the said Council Regulation.

The woman was responsible for not allowing the child to have full contact with the father. The encounter with the father should have been managed better. It was the mother who had to coordinate matters to ensure a smooth exercise of access for the child’s father.

Unfortunately, the child was indoctrinated by the mother who had no interest to see to the true welfare of the child by seeking to smoothen contacts between her son and his father. Her love for the child could only be described by this court as misconceived or “false”, as a parent who truly loved his/her child would do everything in his/her power to ensure that there existed a loving relationship between the child and the other parent.

The woman should have brought the child to Malta for Christmas 2009 or summer 2010. She should have asked the Family Court to review the conditions in the light of the difficulties she claimed that she was facing to comply with the court’s conditions. She unilaterally ignored the conditions of the court order. There was no proof that the child would suffer psychologically by returning to Malta. It felt that the woman was influencing the child and indoctrinating him and that the child’s objections had to be seen in this light.

If it resulted that the child would suffer, the court would be in a position to take necessary action in due course.

So far, no such “harm” had been shown. But if such danger would manifest itself, the local courts were in a position to organise therapy and assistance leading to a change in the situation.

This court had always considered access by both parents to be, not only a right of the parents, but a right of the children, and a parent would be denied such access only for serious and grave reasons. Such rights should not be compromised by any behaviour of one of the parents, who had a duty to ensure that such rights were reasonably exercised.

Dr Grech Orr is a partner at Ganado & Associates.