The Court of Appeal, presided over by Chief Justice Silvio Camilleri, Mr Justice Tonio Mallia and Mr Justice Joseph Azzopardi, in the case ‘A v B’, on June 26, 2015, held, among others things, that insofar as decisions regarding who should be entrusted with care and custody of children are concerned, in coming to a decision the court must consider what would be in the child’s best interests. The court provisionally granted the mother temporary access to her son.

A father filed a lawsuit against his wife. In his sworn application, the man said he and his wife had a child during from marriage. However, they separated by means of a contract of separation dated October 26, 2004, which was subsequently amended by means of another contract dated February 24, 2006.

Following the separation, the parties annulled their marriage.

In the original contract of separation the parties agreed that they would have joint custody of the child but the child would live with his mother. However, the amended separation contract stated that the father would have access to the minor child.

The father claimed that his former wife was living together with her Syrian partner who eventually became her husband. On June 7, 2008, the father went to meet and pick up his son from next to the police station in Msida and, after he waited there for an hour, the mother’s partner brought the child himself.

The following day, the father, in accordance with the rules laid down in the separation contract, went to return the child to his mother by the Msida police station but no one came to pick up the child.

After this the man phoned up the child’s mother who told him: “Keep the child yourself. I don’t want him.”

The father told the court that, from that day forward, the child continued to live with him adding that the mother never contacted him or the child.

The father further alleged that he found out that the child had been ill-treated and abused by his ex-wife’s husband and that she was aware of this and did nothing to put a stop to it. He claimed it would be in the child’s best interest to continue living with him since the mother and her husband were a bad influence on the child.

If the mother does not make the most of this opportunity, she will have no one to blame but herself for being stopped from visiting her son

Furthermore, the separation contract made it clear that the child’s Maltese passport had to be kept by the father; but the mother never passed on the child’s passport to him even though she was requested to do so several times.

He also alleged that the mother was not complying with a number of conditions laid down in the separation contract which were included in the contract for the child’s benefit.

The man requested the first court to:

• Grant him custody and care of the minor child;

• Decide on the rules that would apply insofar as access to the child is concerned with the intervention of Aġenzija Appoġġ in the best interests of the child. He also requested the court to prohibit third parties from being present during the mother’s visits to the child;

• Take all the necessary precautions in the child’s best interests;

• Order the mother to return the child’s passport to him to be compliant with the terms of the separation contract.

The first court granted sole care and custody of the child to the father and authorised him to apply for a passport for his child without requiring the mother’s signature. He was also authorised to pick up the child’s passport from the competent authorities himself.

The court also held that the child could go abroad without having to obtain the mother’s consent. For the child to be able to go abroad he only required his father’s consent.

The mother felt aggrieved by the decision given by the first court and she filed an appeal.

The first ground of her appeal was that the first court did not permit the defendant to visit her minor child. The Court of Appeal noted that the first court did what it considered to be absolutely necessary to protect the child at all costs and it based this decision on the evidence that was submitted.

Insofar as analysis of the facts of a case are concerned, in previous judgments such as ‘Joseph Cini v George Wells et noe’ (November 15, 2004, Court of Appeal) the Court of Appeal said it does not overturn an analysis of evidence made by the first court unless there are reasons which were serious enough to suggest that the decision regarding the evidence should be overturned. However, the Court of Appeal has the duty to examine all the evidence submitted and, apart from this, it is also imperative that the same evidence and conclusions regarding the facts of the case are evaluated well and interpreted in accordance with Maltese law and the most recent jurisprudence on the matter.

The Court of Appeal analysed all the evidence that was submitted in the first court and it came to the same conclusion the first court came to regarding the mother’s shortcomings. It agreed with the first court’s decision that the child needed to be protected.

The mother had acknowledged that her minor child had got used to living with his father and at least she gave importance to the best interests of her child because she did not continue to insist on being granted custody of the child herself. However, the mother felt aggrieved by the fact that she was not permitted to visit her son and she had not done this for around five years, that is, when the first court stopped her from visiting her son.

In ‘John Cutajar v Amelia Cutajar’ (January 28, 1956, First Hall of the Civil Court) the court held that, insofar as care and custody of children is concerned, in coming to a decision the court must consider what would be most advantageous for the child and what would be in the child’s best interests and it must base its decision on personal circumstances and de facto circumstances which emerge from evidence submitted.

This view is reflected in article 149 of the Civil Code which provides that the court may, upon good cause being shown, give such directions as regards the person or the property of a minor as it may deem appropriate in the best interests of the child.

The Court of Appeal stated that, in this case, it was evident that the root of the problem was the mother’s husband since a number of judgments decided against him in the Criminal Court indicated that he was violent and short tempered. As a result the child was terrified of him with the consequence that he associated his mother with this person whom he feared so much. Therefore, if the mother wished to see her son it was imperative that her Syrian husband would not be present.

It also noted that the child was not keen on meeting his mother and he expressed this wish to avoid his mother when he testified in the first court.

However, the Court of Appeal noted that in the case ‘P.W. v A.L.’ (Court Session of Scotland) it was held that: “The child’s views are never determinative, the final decision must be the court’s own.”

Apart from the above, the Court of Appeal was also aware of the fact that stopping the mother from seeing her son would cause the child to suffer from psychological problems in the future; and furthermore, it was not healthy for him to lose contact with his younger sister since he was raised with his sister for a number of years before problems started.

Consequently, before the Court of Appeal would come to a definite judgment regarding this matter, it wanted to give the mother one last chance to start visiting her son under supervision without the presence of her husband.

The Court of Appeal also took the view that it would be beneficial for the child to see his sister during these supervised visits. It held that, if the mother does not make the most of this opportunity, she will have no one to blame but herself for being stopped from visiting her son.

The second ground of the mother’s appeal was that the first court’s decision regarding the passport. The Court of Appeal considers this second ground of appeal to be unjustified for the following reasons:

• The father worked and resided in Malta, and it would not make sense for him to have to request permission from the child’s mother every time he wanted to take the minor child overseas. The Court of Appeal held that there was no danger that the man would leave Malta forever.

• During the proceedings, evidence submitted indicated that the father had requested permission from his ex-wife twice and she had refused to grant permission for no particular reason. This permission was granted by the first court and the father followed the first court’s orders scrupulously.

The Court of Appeal, therefore, provisionally ordered that, with effect from July 1, 2015, the mother would be able to visit the child at the offices of Aġenzija Appoġġ under supervision but her spouse would not be permitted to be present during such visits.

The Court of Appeal held that it would come to a final decision regarding this issue when it received a report regarding the woman’s supervised visits to her child during the next court hearing.

Lastly, the Court of Appeal confirmed the first court’s decision regarding the passport.

Dr Micallef is a lawyer at Ganado Advocates.