Yesterday’s sitting of the Parliamentary Committee for the Consideration of Bills, currently considering amendments to the Divorce Bill, ended in strong disagreement over an issue of custody between co-sponsor Jeffrey Pullicino Orlando and Francis Zammit Dimech, the PN representatives on the same committee,.

Chairman Ċensu Galea hurriedly adjourned the sitting to today at 1 p.m.

Dr Pullicino Orlando was voicing grave concern on a scenario where a father was found to have abused his child and the divorce court granted custody to the mother, who never remarried but died when the child still needed care. He held that the father should never be granted custody because it would not be in the child’s interest to go back to him.

At the divorce stage the father should be considered permanently unfit to be a parent, he said, adding that he considered this to be a cardinal point in the Bill that had not yet been discussed.

Dr Zammit Dimech said the scenario Dr Pullicino Orlando was putting forward was not considered in the Bill, and the latter retorted that Dr Zammit Dimech had not really read the Bill.

Dr Zammit Dimech said that if not even the child’s grandparents were alive to take him or her under their wing, it would be a classical case of a care order. He asked if statistics were available of such cases.

Deborah Schembri disagreed that it should be a matter of how many such cases there had been. The scenario was totally plausible and just one case would be one too many. In such a case the child’s return to the father should not be automatic.

It would be against the child’s interest to live with its father even for the time of vacuum between the mother’s death and the issue of a care order. Why should such a risk be left open?

Owen Bonnici (PL) observed that this sector was super-regulated, with the courts being very responsible and ordering supervised access or even issuing care orders for children who were not sent to school. It was usually schools that sounded the alarm in traumatic family situations.

Dr Pullicino Orlando said he could not assume that a school would know about a court’s first custody order. There had been offences that had come to light only after several years.

Dr Bonnici said Dr Pullicino Orlando’s proviso would amount to cancelling a parent’s right to custody.

Angele Attard from the Advocate General’s office, said a parent could not be ruled unsuitable forever, because he or she could become a changed person.

Mario de Marco (PN) said such concerns would usually have surfaced during the separation proceedings, rather than divorce. There had also been cases of a “fit” parent who had subsequently become “unfit”. Nobody had said yet under which circumstances a court could judge a parent to be unfit.

Earlier, Dr Schembri had brought up another scenario where a woman had a child with a known father out of wedlock, got married to another man and kept caring for the child, then divorced her husband who was not the child’s natural father.

She said a psychological bond could still develop between the child and the stepfather, even if the natural father was still paying alimony. The stepfather’s access must not be ruled out because legislation should always be in the best interest of children.

Dr Zammit Dimech agreed that this scenario should be covered in the Bill.

Up to the disagreement between Dr Zammit Dimech and Dr Pullicino Orlando the sitting had been plain-sailing, with broad levels of agreement on changes necessary to the Bill.

The committee agreed that the court should be given power to raise levels of alimony periodically.

Any part of a payer’s income may be paid directly into the payee’s account. The court could make this award in a sentence or post-divorce decree, not necessarily on the request of the payee so that there would be no renewed animosity between the couple.

The court could also order the payer to pay a global sum to make the payee independent, or the sum could be paid in property of equivalent value.

Earlier, Dr Zammit Dimech said that these amendments would be presented formally by Dr Bonnici and by him alternately.

These amendments include the responsibility of parents to maintain their children’s full-time education and training up to 23 years of age instead of to less than 24 years of age, after the committee chairman had pointed out that adulthood starts at 18 and one had to be cautious on how much to extend this.

Labour MP Evarist Bartolo said there was a suggestion by university lecturer Joseph Grima to ensure this applied to bona fide students.

Jean Pierre Farrugia (PN) insisted that maintenance in the case of dependent members suffering from physical and mental disabilities had to be substituted as suffering from physical and mental illness.

Dr Pullicino Orlando insisted that the issue about disability had to be tackled when Parliament debated amendments to the Equal Opportunities Act. One had to be careful not to widen the concept of disability as to include certain common mental ailments like depression.

Marie Louise Coleiro Preca (PL) said one could not widen definitions of health making it impossible for spouse with a limited financial means to apply for divorce if they needed it.

Ms Schembri pointed out that the law provided for generic needs of the family members as regards maintenance. Dr Attard said that while judges could include any need, there was no particular guideline. One had to be cautious not to give way to abuse.

Dr Zammit Dimech said one could propose that the list of disabilities guiding judges could be non-exhaustive, giving leeway to judges. Dr Pullicino Orlando said he was ready to accept that the list would not be exhaustive but was not ready to widen the concept giving rise to abuse.

Mr Bartolo said it was clear that no one was against including serious illnesses rendering one as a dependant person.

Dr Attard proposed an amendment that laid down the circumstances judges had to consider to be able to determine maintenance. These would include the consideration of serious illness which compromised the capability of any of the spouses or other dependants to maintain themselves. The amendment was unanimously approved.

Dr Bonnici said that both sides unanimously agreed that, in determining maintenance, the court had to be conscious that social assistance and non-contributory pension could not be considered as income.

Committee deputy chairman Frans Agius (PN) also intervened in the proceedings.