The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia, on February 25, 2011, in the case ‘Director of the Department of Standards for Social Welfare vs “B”’ (mother), refused to order the repatriation of minors to France under Chapter 410 of the Child Abduction Custody Act because the father was deemed to have consented to the relocation of his children to Malta by their mother.

The facts in this case were as follows.

The case concerned an application by the Director of Standards for Social Welfare in terms of Chapter 410 of the Laws of Malta on the Abduction and Custody of Minors, which ratified two conventions on the civil aspects of the international abduction of minors and the recognition and enforcement of custody decisions.

The application involved minor twins, who were born in France on June 26, 2007. The couple ‘‘A’’ (father) and ‘‘B’’ (mother) were married in France on January 7, 2006. ‘‘A’’ was French and ‘‘B’’ was Maltese.

In September 2008 it was mutually agreed that the mother and children would come to Malta for a few months until January 2009. But the mother wanted to remain in Malta, and refused to return to France with the children.

The mother and two children took up residence in Balzan and the father visited them at intervals. Initially, he had not opposed to the family coming to Malta.

The father in fact supported his family financially. He bought his wife a car and TV set. He signed a joint application for social services in Malta, wherein it was declared that the children were living in Malta.

He opened an account with HSBC Malta and purchased an insurance policy for his family from Middlesea Insurance. At one time he even contemplated enrolling in a tourist guide course in Malta with the Institute of Tourism Studies with the intention of working in Malta

He also gave his wife a power of attorney to sign on his behalf.

Initially the mother remained in contact with the father on the children’s welfare.

After June 2009 the father moved to Belgium but refused to provide her with his contact details. One child was diagnosed as autistic and received treatment in Malta. In July 2009 the mother filed for personal separation and custody of the children, for which she obtained a decree from the Malta courts.

In October 2009, when the father visited them in Malta, he praised the mother for taking good care of their children, but still refused to disclose his new address in Belgium.

Subsequently, in November 2009, the father insisted that the children be returned to France, as he felt that it would be in the better interest of their autistic son to live in France.

On the other hand the Maltese consultants expressed a dissenting opinion and recommended that the autistic son should continue living in Malta, in order to avoid the stress of supplanting him into a new environment.

In addition the mother filed a warrant for an impediment of departure to prevent the father taking the children out of Malta.

On November 24, 2009, the father filed a report that the mother had abducted the two minor children from their habitual residence in France, without his consent.

The Central Authority in France thereafter requested the Malta authorities in terms of the convention to discover the whereabouts of the children and to order their return to France. It was found that the minors were living with their mother in Balzan. The Central Authority of Malta was also authorised to represent the father.

The parents at the time were still legally married and according to French law, they enjoyed equal rights over their children and had joint responsibility. This meant that any parent could exercise his or her rights without violating the rights of the other parent.

In reply the mother contested the legal action as unfounded. It was stated in her defence that the father had consented to the move to Malta. It was not the case that she had absconded with the children and dislodged them from their habitual residence without the father’s consent.

The children had been living in Malta for over one year and a half, and in this period, the mother contended, the father had given all necessary support and had never raised any opposition.

On November 30, 2010, the First Hall Civil Court rejected the application of the Director of the Department of Standards for Social Welfare, on the grounds that the father had given his consent to the change of his children’s residence to Malta. It felt that in the circumstances, it was not in the better interests of the minors to order the mother to send the children back to France.

There was no evidence that the minors had been abducted and kept unlawfully in Malta. It did not result that the mother had forcibly or clandestinely taken the children away from their home in France.

However, the decree which the mother had obtained in the separation proceedings on September 23, 2009, nine months after it was intended that she would return to France, was not very useful. In the first place, her action had been filed against curators, and in the second instance, the court would normally issue an injunction to keep the minors in Malta without any examination and this to avoid any possible harm to the minors.

The mother in this case invoked the application of article 13. Article 13a provides that the courts were not obliged to order the return of the minor if the father “had consented to or subsequently acquiesced in the removal or retention”.

In Re: A (minors) (Abduction: Custody Rights) 1992 the English courts maintained that such consent had “to be signified by express words or ‘conduct’ which is inconsistent with an intention of the party to insist on his rights and consistent only with an acceptance of the status quo.’’

The First Hall Civil Court was of the opinion that the father had consented to the children living in Malta. It also considered the reports on the autistic son and the harm which he could suffer if he were to change country.

Article 13B provides that the courts need not order the return of the minor where ‘‘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”.

For these reasons, the First Hall Civil Court refused the director’s application.

Aggrieved by the decision, the director entered an appeal calling for its revocation.

On February 25, 2011, the Court of Appeal gave judgment by dismissing the appeal and by confirming the decision of the First Court. The following reasons were given for the court’s decision.

The court agreed with the conclusion of the First Hall Civil Court that the father had given his consent.

The court did not agree with the decision in Re: W (Abduction: Procedure) of 1995, where the court had said that the consent had to be ‘‘clear and compelling’’, and ‘‘in normal circumstances such consent will need to be in writing or at the very least evidenced by documentary material”.

Reference was made to Bromley: Family Law (10 edit., 2007 pg. 650), wherein it was stated that the consent need not be express or in writing, but it had to be clear and unequivocal.

In Re: H (Minors) Abduction: Acquiescence, decided by the House of Lords in 1998, it was held that ‘‘Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.’’

The father had acted as if he had consented to his family relocating to Malta. He had given the impression that he was not going to assert his right to the summary return of the children, and only after November 2009 had he insisted that they be returned to France.

The court said that as the father had actively participated in promoting the interests and welfare of his children, it was to be deemed that he had clearly accepted that the minors would not immediately be repatriated to France.

In Bromley’s Family Law, it was stated that the delay in taking any action could also be indicative. The Court of Appeal concluded that the father had consented to the children taking up residence in Malta with their mother. In this respect in terms of Art. 13A of Chapter 410, the court refused to order that the minors be returned to France.

Dr Grech Orr is a partner at Ganado & Associates.