The Family Court’s refusal to order a child to be returned to its mentally ill mother in Norway has been upheld on appeal because the toddler’s habitual residence is Malta.

At the same time, however, the Court of Appeal said it did not believe the boy would suffer any physical or psychological damage if he returned to Norway. It might be true the mother was incapable of looking after him but the Norwegians were surely competent to examine the matter, the court said.

The Norwegian mother, claiming child abduction, had asked the Department for Standards in Social Protection to take action in order for her child to be returned to Norway. His Maltese father, however, pleaded he and the mother had come to Malta when their son was only a few days old with the intention of establishing their residence here, so this was no abduction.

The first court heard that under the Hague Convention no court was obliged to order the return of a child if the contesting parent had consented to the child travelling. Nor was the court obliged to return the child if this could expose the child to physical or psychological danger.

The Family Court pointed out that the child’s parents had met on the internet in 2008. The mother had travelled to Malta that year and remained here until January 2009. On her return to Norway she discovered she was pregnant and the father moved to Norway to be with her.

Following the birth of the child in September 2009, the father found out the mother had another child from a previous marriage. This child had been removed from her care and placed in a foster home.

The second child was born suffering from withdrawals from the medication the mother used to take and the Norwegian Social Services had intervened. This led to both parents fearing their child would be taken from them and they decided to leave Norway and come to Malta when the child was only a few days old.

They had immediately had the child registered as a Maltese national and had established a home together until their relationship ended last year. The father was awarded care and custody of the child by the Maltese courts.

The first court concluded that the couple had intended to set up residence in Malta and that this country constituted the child’s habitual residence. It also resulted to the court the mother suffered from mental illness and her state of health was poor.

The court therefore refused the mother’s request to order the return of the child to Norway

The director of the department appealed to the Court of Appeal composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia.

The Appeal Court pointed out that, in order to establish a habitual residence, a person had to travel to a location for that specific purpose. In this case, when the couple came to Malta it was with the intention of establishing themselves here indefinitely. They had set up their home and the father had started looking for work. The child had therefore not been abducted from his habitual residence.

The court therefore confirmed the judgment delivered by the Family Court although it said it did not believe any harm would come of the child if in fact he were returned to Norway.