The Constitutional Court, presided over by Madame Justice Anna Felice, in the case “A (father) vs B (mother) and the Attorney General”, on January 25, 2012, held that a person should first exhaust his ordinary remedies before requesting a “human rights” remedy. Father claimed a violation to take his son on a visit to his grandfather.

The facts in this case were as follows:

It was stated that it was not the purpose of the Constitutional Court to review decisions of other courts, unless there was a breach of the right to a fair trial

A couple got married on December 3, 1997, and from their marriage they had one son, who is now 10 years old.

On June 2, 2007, the wife initiated separation proceedings before the Civil Court, requesting, among other things, to be granted the care and custody of their minor son until the final decision was delivered.

The court rejected her application for exclusive custody on July 20, 2007, and on August 17, 2007, ordered that the care and custody be vested jointly in both parents.

Later, the husband applied for permission to take his son abroad for a few days, to visit his paternal grandfather on the occasion of his 75th birthday.

The court on August 17, 2007 refused his request, owing to the wife’s opposition.

The father was aggrieved that his son could never visit his grandfather. He claimed to have suffered thereby a human right violation:

• That his right to family life was curtailed;

• That his relations as father with his son were disturbed and

• That this was not in the interest of his minor son.

The argument put forward was that this decree, prohibiting him from taking his son overseas to visit his relatives, violated his fundamental right to family life, as sanctioned under Article 8 of the European Convention which was incorporated into Maltese Law by Chapter 319 of the Laws of Malta.

Faced with this situation, the man proceeded to file a human rights action against his wife and against the Attorney General whereby he asked the court to declare that the court decree of August 17, 2007 infringed his rights to family life under article 8. He requested the court to provide a suitable remedy, as it deemed suitable, including a declaration that the decree was null and without effect.

In reply, the mother contested her husband’s application. She submitted that as he did not exhaust his ordinary remedies available to him, the court should not exercise its constitutional powers. She also maintained that the decree of August 17, 2007, did not violate her husband’s rights. On the contrary, it was argued that this decree served to counter the risk that the father would not return their son to Malta and, in this way, safeguarded the interests of their minor son.

The Attorney General also disputed the husband’s human rights action, contesting any breach of his right to family life under Article 8 of the European Convention.

In the first place, he reiterated that the man had ordinary remedies at his disposal. He said that the father could have appealed from the decree of August 17, 2007 or could have requested the court to reconsider his request afresh. It followed, therefore, that, once the man failed to utilise his ordinary remedies when he had the opportunity, the court should decline from taking cognisance of his application, maintained the Attorney General.

It was stated that it was not the purpose of the Constitutional Court to review decisions of other courts, unless there was a breach of the right to a fair trial (under Article 6 of the European Convention).

In this case, it appeared that the Family Court deliberated and reached its decision after due consideration. There was no complaint or any failure of the court or of the state.

The Attorney General said that it was not possible for the father to request the Constitutional Court to review the decree or the final decision, deciding their separation, simply on grounds that relations between father and son came within the parameters of Article 8 of the European Convention.

It was prudent for the court to respect the wish of the mother and not permit their son to leave Malta, especially since separation proceedings were still pending in court. Children were a sensitive element of a relationships, added the Attorney General.

On January 25, 2012, the Constitutional Court gave judgement by rejecting the father’s application. It declared that once he had at his disposal an effective, ordinary remedy, this court should decline from exercising its powers under the Constitution, in accordance with Article 4(2) of Chapter 319 of the Laws of Malta and Article 46(2) of the Constitution.

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

In “Tretyak vs Director of Citizenship and Expatriate Affairs” dated January 16, 2006, it was held that “the existence of another remedy for an alleged violation of human rights under the Constitution or under the European Convention had to be shown as a state of fact.

It was only if it resulted that there existed another effective remedy, would the court decide not to exercise its powers to hear the complaint before it”.

This discretion should always be used in the best interests of the administration of justice.

The Constitutional Court should refrain from considering cases which should have been presented before other courts.

It was not necessary for an ordinary remedy to be effective, that its success was guaranteed. It was sufficient if it was shown that it could be obtained in a way that was practical, effective and effectual.

In “Axiaq vs the Authority of Public Transport” dated May 14, 2004, the Constitutional Court said that “the First Hall had the power to decline to exercise its powers under sub-Article 2 of Article 46 of the Constitution (as well as under Chapter 319). This power had to be exercised with prudence, especially if it appeared that there could be a serious violation of human rights, if the individual would be deprived of his human right remedy (or under Chapter 319) or if it appeared that such other remedy was not so adequate in the circumstances of the case”.

The father could have applied for the revocation of the decree contrario imperio or he could have requested permission to file an appeal from the decree in terms of Article 229(3) of Chapter 12.

In this case the man did not utilise his ordinary remedies, noted the court.

For these reasons, this court dismissed the father’s application.

Dr Grech Orr is a partner at Ganado & Associates.