The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia, in the case Director for Social Welfare Standards vs “A” (father), on December 3, 2010, held, (among other things), that, in a child abduction case, the court should consider the wishes of the child, in particular when the child (aged 15 years) was mature enough to reach a considered decision relating to his own welfare.

The facts in this case were as follows:

A married couple had two boys, who were still minors, when they divorced on September 5, 2007. The boys were born in the United Kingdom and were habitually resident in England. The divorce decree made no provision to the care and custody of the boys, who remained living with their mother, while the father had visitation rights.

In the past five years, the father moved residence to Malta.

In January 2010, the mother agreed to send the boys to Malta to spend a few days with their father, who had recently been diagnosed with a terminal illness.

The father failed, however, to return the boys and eventually informed the mother that the children would remain living with him.

Later the younger boy returned to the UK according to his wishes, but the older boy, aged 15 years and a half, chose to stay in Malta.

The older boy strongly objected to returning to England. He stated that he was better cared for in Malta.

In the UK, he did not live with mother. He shared an apartment with his gay half-brother and partner.

In these proceedings, the Director for Social Standards, acting on behalf of the mother, filed legal action in Malta in terms of the Child Abduction and Custody Act (Chapter 410 of the Laws of Malta). This Act ratified two Conventions relative to the civil aspects of international child abduction and to the recognition and enforcement of custody decisions and also in terms of the European Union Regulation No. 2201/2003 of November 27, 2003.

The mother claimed that the minors were illegally retained in Malta by their father.

The Malta Central Authority was requested by the United Kingdom Central Authority, in terms of Article 7 of the Convention on International Child Abduction, to discover the whereabouts of the minors and to obtain their immediate return.

The Malta Authority was authorised to act in the mother’s name, in terms of article 2 (1) of the UK’s Child Abduction Act 1989.

Both parents had parental responsibility over the children.

In this case, the mother claimed that the father was illegally retaining his minor children in Malta; that he changed their habitual residence without her consent and consequently violated her rights of parental responsibility.

She said the father acted in an illegal manner by completely isolating her from the minors.

The Malta Authority requested the Maltese courts to order the return of the two boys to the UK. In the interim period, the court was asked to give those directives in the interest of the said minors, including a notice to the competent authorities, in order to safeguard the children from being illegally removed from Malta to any other State, which removal would make the return of the minors to their habitual residence much more difficult and in express violation of the Convention on the Civil Aspects of International Child Abduction and of the Convention on the Civil Aspects of International Child Abduction and of the European Union Regulation.

In reply, the father denied abducting his boys. Their younger son in the meantime had returned to the United Kingdom, while their older son did not want to return.

The father submitted that custody was vested in both parents jointly. It was stated that every parent had the same rights and obligations towards the minors.

In the absence of any court declaration where the minors had to reside, he disputed abducting his children.

The father maintained that there was no breach of the UK Child Abduction Act 1989. He said he was prepared to take care of their elder son; and keep him in Malta. Allegedly, the minor’s habitual residence was Malta, according to Regulation 2201/2003.

As the boy was 15 years old, the father told the court that he should be given the opportunity to voice his wishes.

The father argued that the court should dismiss the requests of the Director of Social Welfare, as it was not in the best interest of his son to return to the UK.

On September 10, 2010, the Civil Court (Family Section) refused the request to send the 15-year-old boy back to the UK.

The Court noted that the boy strongly objected to returning to the UK and that he was happy in Malta. He said that he enjoyed the way of life in Malta. He made many friends and had a part-time job.

The court said the boy was mature enough to take decisions and appreciate the consequences of his decision. Although, as he was under 16 years, the Child Abduction and Custody Act (Chapter 410) was applicable, the court was not bound to order the return of the child where there was a grave risk that his return would expose the him to physical or psychological harm, or otherwise place the child in an intolerable situation.

The same convention also admitted another exception to the rule of the immediate return of the child, where the child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of his views.

It was noted that the scheme of The Hague Convention was that, in normal circumstances, it was considered to be in the best interests of children generally that they should be promptly returned to the country whence they were wrongfully removed, and that it was only in exceptional cases that the court should have a discretion to refuse to order an immediate return.

In Zaffino vs Zaffino (Abduction: Children’s Views – 2005) Thorpe LJ stated that “the court must balance the nature and strength of the child’s objections against both the Convention considerations [obviously including comity and respect for the judicial processes in the requesting state] and also general welfare considerations”.

The court observed that the child was mature enough to reach a considered decision relating to his own welfare; and that the court was bound to give due weight to his views and wishes

To hold otherwise would stultify the provision requiring the court to take, where appropriate, account of the child’s views.

For these reasons the Civil Court decided that, in the best interests of the child, it should decline the mother’s request.

The Director of Social Welfare standards entered an appeal, calling for the revocation of the decision of the Civil Court.

On December 3, 2010, the Court of Appeal gave judgment by dismissing the appeal and by confirming the decision of the first court. The following reasons were given for the court’s decision:

The Director put forward the argument that the mere desire to remain in Malta was not sufficient to hinder the application of the Child Abduction and Custody Act.

Under ordinary circumstances the court would not have hesitated to return the child to England, where it not for Article 13 of the Convention which permitted a refusal to make a return order if the judicial authority felt that the child objected to being returned and had attained an age and degree of maturity of which it was appropriate to take account of his views. The child in question was 15 years and six months old, and both the first court and the Court of Appeal were of the opinion that the child had sufficient maturity to have his views taken into account.

Given the age of the child, the court felt it was incumbent upon it to hear his views. The court said there was no additional requirement to establish that there was a grave risk that a return order would expose the child to psychological harm. Nor was it required to consider whether the child objected to returning in any circumstances; it was enough for the child to indicate that, in the present circumstances, he objected to returning to his mother.

The court had the discretion to order the return of the minor but felt that it should consider the child’s wishes. It did not think that his views had been “shaped” or “coloured” by parental pressure.

The child wished to remain in Malta with his father who showed more interest in his welfare than his family in England.

In addition, his mother had a history of alcohol abuse and his fears in this regard justified the court not to order his return to the UK.

Dr Grech Orr is a partner at Ganado & Associates.