Best interest of minor child is determining factor in custody case

The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia, in the case Director of the Department of Standards for Social Welare vs A (father) on March 25, held, (among other things), that as the minor was habitually resident in Malta, it would not order that he be returned to his mother in Norway. Malta was the proper forum to determine the care and custody of the child.

The facts in this case were as follows:

This case concerned an application in terms of the Abduction Act, Chapter 410 of the laws of Malta.

The Central Authority in Malta was requested by the Central Authority in Norway in terms of Article 7 of the Convention to order the immediate return of a minor, to Norway. The Central Authority of Malta was authorised by the mother of the minor to act in her name.

According to Norwegian law, both parents enjoyed joint parental responsibility and their consent was necessary to change the residence of their child.

The parents of the minor met over the internet in September 2008. The mother who is of Norwegian nationality, visited Malta in November 2008. The child was born in Norway on September 15, 2009. The couple decided to relocate to Malta to avoid any possible interference from the Norwegian Authorities.

It resulted that the mother suffered mental health problems and that the Norwegian Authorities had ordered her first child from another relationship to foster care. This case related to her second son from her relationship with the father and as the couple were fearful that the Norwegian Authorities would take their child from them, they decided to move to Malta.

They rented a penthouse for a year. While on the one side the father claimed their sojourn to Malta was for an indefinite period, the mother alleged they planned to live in Malta for three months. They also bought a number of appliances/ furnishings for their home, which indicated intentions to remain for a longer stretch. The father found employment in Malta. The minor also acquired Maltese citizenship with the consent of both parents.

Their relations deteriorated, however, and the couple went their separate ways. A dispute ensued, as the father continued to reside here with the child.

The mother demanded the return to Norway of their child. She claimed that the father was keeping their child unlawfully and that he illicitly changed the habitual residence of the minor without her consent.

The Central Authority requested the Malta Courts to order the return of the minor to Norway and to give directives in the interests of the minor, to prevent the child from leaving to another country, which would make his return to Norway, even more difficult, and in violation of the Abduction Convention.

In reply the father contested the application of the Central Authority of Malta. It was stated that the mother had consented to the move to Malta.

He denied abducting the child. He said they freely took up residence here as a family after the birth of the child. The mother had accepted that the minor would reside in Malta.

On February 1, 2011, the Court of First Instance dismissed the application of the Central Authority. It refused to order that the child be sent to the mother in Norway in the light of the child’s best interests.

The court said there was sufficient proof that the requirements of article 13 of Chapter 410 had been established.

The court considered that in terms of article 13B, there was a big risk that the return of the minor would expose him to physical/physiological harm and would place the minor in an intolerable situation.

The best interest of the minor had to be given foremost importance, pointed the court.

Reference was made to the European Court of Human Rights in the case Neulinger and Shuruk vs Switzerland dated July 6, 2010 where it was stated that:

‘‘..... (it) follows from Article 8 that a child’s return cannot be ordered automatically or mechanically when the Hague Convention is applicable. The child’s best interests, from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences. For that reason, those best interests must be assessed in each individual case. That task is primarily one for the domestic authorities, who often have the benefit of direct contact with the persons concerned. To that end they enjoy a certain margin of appreciation, which remains subject, however, to the European supervision whereby the court reviews under the convention the decisions that those authorities have taken in the exercise of that power.

‘‘The seriousness of any difficulties which may be encountered in the destination country by the family members who would be accompanying the deportee must also be taken into account.’’

First, where the child’s placement with the parent who lodged the application is manifestly not in the child’s interest.

Second, where the abducting parent, in the circumstances, is not in a position to take care of the child in the state where the child had his or her habitual residence at the time of the abduction, or manifestly cannot be so required.

‘‘The gravity of the risk has to be understood in harmony with and in the light of the convention. The public order interest that consists in denying any advantage to someone’s unlawful conduct cannot preclude other rights-based considerations, in particular that of the best interest of the child. The Hague convention itself enables such a balanced approach in its Article 13.’’

In the circumstances, the court took into account the fact that there was a strong possibility that the mother would not be allowed to look after the child and the father would not be allowed to live in Norway.

The court also noted that the mother was not fit physically; that she made no effort to have the minor during the course of the proceedings.

Aggrieved by the decision of the Court of First Instance, the Central Authority of Malta, at the request of the mother, entered an appeal, calling for its revocation.

On March 25, 2011, the Court of Appeal gave judgment by dismissing the appeal and by confirming the decision of the Court of First Instance. It ordered that the Norwegian Authorities should be notified of its decision.

The following reasons were given for the court’s decision.

According to English doctrine, it was not necessary to show that there was an intention to live in a place indefinitely.

A person could be deemed to have established his residence in a new location, just by moving for a settled purpose, which was not a holiday or for reasons of gaining access to a child. Reference was made to the case RE B (Minors) Abduction No. 2 1993, where the English courts held that: “habitual residence is a term referring when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or long duration”.

In the UK, it was accepted that even temporary residence, for educational purposes, business, work (including) military posting) or to have a family re-union could bring about a change in habitual residence.

It was not necessary to show any particular long period of time.

In this case, the court was of the opinion that the parties intended to establish themselves indefinitely in Malta.

If it was true that they only intended residing for three months here, they would not have leased a penthouse, for a year, nor buy accessories, and furnishings for their home. They would have simply leased a furnished flat. The court noted that the mother agreed that their child would become a Maltese citizen. It considered that the couple freely came to Malta. As they were habitually resident here, this court should not order the minor to be returned to his mother in Norway. Malta was the proper forum to determine the care and custody of the child.

The Court of Appeal did not agree that the minor would suffer, physically and morally if he were to be returned to Norway.

In case that the Maltese courts were to order that the child be sent back to Norway, the Norwegian courts had to decide what was in the best interests of the child. The rights of both the father and mother would be left unprejudiced. It was confident that the Norwegian courts were capable of considering all factors before deciding the case, to safeguard the interests of the minor.

Dr Grech Orr is a partner at Ganado & Associates.