Custody of daughter must be decided by British court
The Constitutional Court, composed of Mr Justice Giannino Caruana Demajo, Mr Justice Joseph Zammit Mc Keon and Mr Justice Robert Mangion, on August 24, 2012, in the case “Richard John Bridge personally and on behalf of his daughter vs the Attorney General and the Department for Social Welfare Standards”, held, among other things, that the presumption of the European Convention was that the return of the child to the jurisdiction from which it was wrongfully removed would be in the best interests of the child, save for exceptional circumstances, which had to be proven to the court’s satisfaction.
In this case, the Maltese courts had to consider whether to enforce a return order of a child to the jurisdiction from which it had been wrongly removed (the UK), in terms of the Child Abduction and Custody Act, Chapter 410 or whether its enforcement would infringe the child’s and the abducting parent’s right to family life under Article 8 of the European Convention for the Protection of Human Rights.
The minor child was the daughter of Richard J. Bridge and Nicky Lee.
After the couple’s divorce, in September 2010, the child lived with her father in the UK, where both parents were domiciled. It so happened that Mr Bridge settled in Malta with his new wife and child. As the mother of his child had not consented to her child moving to Malta, Mr Bridge had effectively abducted the child from her habitual residence.
Ms Lee, the mother, filed legal proceedings in the UK for the return of the child to the UK. The English courts made their minor daughter a ward of the court and on October 20, 2010 it ordered that she be returned.
Ms Lee, thereafter, proceeded to enforce the return order in Malta, in terms of the Child Abduction and Custody Act.
The director of Social Welfare Standards Department in Malta took proceedings to enforce the order. The Family Court on May 26, 2011 ordered that the child be returned to the UK.
Mr Bridge appealed but his appeal was dismissed as it was filed after the lapse of the time limit for appeal.
Subsequently, Mr Bridge initiated a human rights action in his own name and as curator ad litem for his daughter, claiming that the enforcement of the return order would be in breach of his right to a fair hearing, Article 39 (2) of the Malta Constitution, Article 6 (1) of the European Convention and of the right to respect for family life (Article 8 of the European Convention).
Mr Bridge stated that Ms Lee visited her daughter sporadically in the UK, until he decided to settle in Malta.
The First Hall of the Civil Court found no violation of his human right to a fair hearing. It also found no violation of Article 8 of the European Convention (right to family life) in respect of Mr Bridge but that there was violation in respect of their minor daughter’s right to family life.
Regarding the right to family life, reference was made to “Neulinger and Shuruk vs Switzerland” dated July 6, 2010, whereby it was stated that the aim of the relative convention is to ensure that the proper forum decides the issue and not allow the parent who flees with the child from that forum to benefit from the act.
It also noted, especially in regard to the Brussels Regulations, that the signatories to the Convection (in this case all European Union members) accepted to have complete faith in each other’s courts and tribunals and have no reason to doubt that in the end, the right decision is given even though it must be said that custody decisions are often painful, even for the court deciding the issue.
The European Court of Human Rights also stated in the case ‘Maumosseau et vs France’ (39388/05) that “the aim of the Hague Convention was to prevent the abducting parent from succeeding in legitimating by the passage of time operating in his or her favour, a de facto situation which he or she had created unilaterally”.
The First Hall of the Civil Court felt that Mr Bridge knew that it was up to the UK courts to decide whether a minor should live in Malta with her new family and father. It was up to the English courts to decide the issue of custody. There was no doubt that Mr Bridge took the child out of her habitual residence, but the court was of the opinion that the removal of the child at this stage would be a waste of time, and simply cause her undue stress.
The First Hall of the Civil Court said that the daughter’s right to family life would be tampered with, and that she had a right to live with her new family in Malta. Without wishing to create any precedent, the court felt that the minor’s fundamental right to have a family life would be infringed by her removal from Malta.
Ms Lee, the mother, appealed from the decision of the First Hall of the Civil Court.
She complained that the judgment was contradictory. She also claimed that the court gave a wrong interpretation of Article 8 of the Convention.
The Court of Appeal said that there was no evidence that the minor’s rights to family life would be infringed. Reference was made to “Maumousseau and Washington vs France” dated December 6, 2007.
There was at least a prima facie presumption that the return of the child to the jurisdiction from which it was wrongfully removed would be in the best interests of the child. At issue was whether her return would violate her rights as protected under Article 8 of the European Convention. The enforcement of a return order would not be a violation insofar as it was (i) in accordance with the law and (ii) it was necessary in a democratic society, noted the court.
The court maintained that in this case the return order was made in accordance with the law. Under the Hague Convention, the Maltese courts could refuse to enforce the return order only in certain exceptional circumstances in terms of Article 13 of the European Convention. If no evidence of such exceptional circumstance were produced, the best interests of the child dictated that she should be returned.
1. The risk of physical or psychological harm had to be grave.
2. The aim of the Hague Convention was that, in normal circumstances, the best interests of children was that they should be promptly returned to the country from where they were wrongfully removed and only in exceptional case should the court exercise its discretion to refuse to order an immediate return.
3. It was not up to the Maltese courts to decide the custody issue. The UK courts should decide the custody of the child, as this was the place of her habitual residence
The father failed to produce evidence of exceptional circumstances under Article 13. His objections were more relevant to the custody dispute and did not constitute a valid obstacle for the granting of an order for the child’s return.
The task of the Maltese Court of Appeal was to ascertain whether there was a violation of the child’s rights to respect for family life, and whether the Family Court took all relevant factors into account.
The court said that the Family Court did indeed make a prudent analysis of the relevant factors. “The truth of the matter is, as the Family Court correctly determined, that there is no cause for fear that the child will be subjected to harm or that she will be placed in an intolerable situation on her return and therefore there is no reason why the return should be considered a breach of her right to respect for family life”.
The court said that the extreme circumstances of the Neulinger case did not occur in this present case.
The fact that the father had severed his links in the UK; that he had no residence in the UK nor any job, or any means of support in the UK, or that he could possibly face criminal prosecution for abduction in the UK, was not considered sufficient within the context of Article 13.
The courts said that English courts were fully capable of making the necessary agreements. A degree of inconvenience could not be avoided and this alone did not justify non-compliance with the Hague Convention nor did it amount to a violation of the right to family life.
Mr Bridge also appealed, claiming that he would suffer a violation of his rights under Article 8 in case the return order were to be enforced.
The Court of Appeal considered that it had to balance the rights of all interested parties, including those of the mother, whose rights were also affected. This court could not now give preference to the father so that he would not be exposed to criminal proceedings in the UK for having abducted the child. The presumption was that the child’s interests were best safeguarded by her return in accordance with the Hague Convention.
The court said that the requirement of mutual trust between the courts of different member states led it to believe that the judicial system in England would not impose unreasonable and unnecessary hardship, in view also of the interests of the child. It was of the opinion that the presence of the child and both parents in the proper jurisdiction would expedite the final settlement of the custody issue and also of the matter of the child’s future place of residence. It was in the interest of all concerned that this was done according to law and not by unilateral action of one or other of the parties.
For these reasons, on August 24, 2012, the Court of Appeal gave judgment as follows:
1. It upheld the appeal of the Advocate General and the Department for Social Welfare Standards. It held that there was no violation of the child’s right to respect for family life. The stay of the removal order was revoked.
2. The cross-appeal of plaintiffs Richard John Bridge was dismissed, and the finding that there was no violation in respect of John Bridge was confirmed.
Dr Grech Orr is a partner at Ganado & Associates.