A court yesterday dismissed a constitutional case filed by a man who unlawfully kept his five-year-old son in Malta.
Mr Justice Joseph Zammit McKeon heard Michael Caruana had a son with Katarzyna Joanna Morkis but the relationship did not work and she took him back to Poland.
In 2007, the Family Court in Malta awarded care and custody of the child to Ms Morkis and, in 2010, the parties agreed Mr Caruana could have access in Malta but had to return his son to Poland.
This agreement was confirmed by the Polish courts.
Mr Caruana brought his son to Malta last year but failed to return him. Both the First Hall of the Civil Court and the Court of Appeal ruled this was wrongful retention of a child in violation of the International Convention against Child Abduction.
The courts ordered the boy to be sent back to his habitual residence.
Mr Caruana then filed a constitutional application claiming the rulings violated both his and his child’s right to a fair hearing.
He argued the order to return his son to Poland was in violation of his right to family life.
Mr Justice Zammit McKeon, sitting in the First Hall of the Civil Court, dismissed Mr Caruana’s submissions about the lack of a fair hearing.
Mr Caruana claimed the Family Court had failed to rule on his application to vary terms of the agreement reached before the Polish courts. But yesterday it ruled that he could not use this to violate the international convention.
Mr Caruana should have tried to overturn the Polish court’s ruling in Poland because that was where the child habitually resided.
The concept of the child’s best interests was an underlying principle of the international convention but these best interests had to be assessed in each case.
In this case, it resulted that the child loved both his parents and that he had been well looked after by his mother in Poland.
The father had the right to petition the Polish courts to vary the existing rulings governing the care and custody arrangements.
The court concluded that returning the child to Poland would be in his interest and would not interfere with Mr Caruana’s family rights.
The constitutional application was therefore dismissed.