Justice denied for Ella

With all due respect to the Constitutional Court, it appears to have based its decision (Ella must return to her mother In UK, August 25) on a less than thorough reading of the Convention on International Child Abduction (CICA), ignoring the important article 13, and without giving weight to the overriding UN Convention on the Rights of the Child (CRC) or the Fundamental Right to family life.

I am convinced that this serious error in judgment will come back to haunt our Constitutional Court, and will be overturned by the European Court- Rudolf Ragonesi

This appeal was from a constitutional case and therefore the Attorney General’s only arguments that could have been entertained were that Ella Bridge’s right to family life would not have been infringed by taking her away and returning her to the mother who abandoned her.

The Constitutional Court, however, stated the need of balancing the rights of the parents. I disagree. In this constitutional case the rights of the parents were irrelevant, for that is a civil dispute, and the decision of the first court was rightly based upon the fundamental human right of the child to a family life.

In its judgment, the Constitutional Court, despite acknowledging that “the child’s best interests are paramount”, went on to state that “it has now been determined that the child’s interests are best protected by her return (to the UK) in compliance with a Hague Convention...” (CICA).

How could the child’s interests be even remotely protected by taking her away from her only real family, disregarding the dictates of article 13 of the Convention, and sending her straight into the clutches and custody of the mother who had apparently not cared for her properly?

Article 12 of the Convention on the Rights of the Child states that children have the right to say what they think in all matters affecting them, and to have their views taken seriously.

The facts of the case indicate that the girl does not want to live with her biological mother, which is what will happen the moment she sets foot in the UK.

What else does a court need to hear to take heed of the child and safeguard her fundamental rights which would be best served by granting her wish to remain with her father who already has legal guardianship and joint custody over her?

However, what makes matters worse is that, in choosing to give weight to the Convention of International Child Abduction over the Rights of the Child Convention, had the court applied article 13 of the CICA, it would have still come to the same conclusion as the first court.

This states that “the judicial... authority of the requested State is not bound to order the return of the child if the person (who) opposes its return establishes that the person… having the care of the child was not actually exercising the custody rights at the time of removal or retention... or if there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.

There seems to be adequate evidence that both these scenarios are the case.

Yet even if the court held that these were not sufficiently proven, despite the obvious lack of care by the mother, article 13 goes on to add, as a final safety net for the child, reflecting article 12 of the other Convention:

“The judicial... authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”

All Malta knows that Ella is objecting, yet this was not reason enough for the court to apply article 13 of this Convention or article 12 of the other Convention, to allow her to continue living happily and lovingly in Malta with her family in terms of her fundamental rights.

Article 16 of the CICA furthermore adds that this State can decide on the rights of custody after it has determined that the child is not to be returned.

So the convention makes it clear there is nothing that either precludes Ella from not being returned, or from a court pronouncing on rights of custody.

I am convinced that this serious error in judgment will come back to haunt our Constitutional Court, and will be overturned by the European Court of Human Rights.

The President and Justice Minister should meanwhile ensure that Ella is allowed to reside in Malta if she so wishes, pending the European Court decision, which may well turn out to be a landmark one in European case law.

Anything less would be sheer justice denied to the most vulnerable in society, the child!