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Child born in Norway had not been abducted to Malta - Court of Appeal

The Court of Appeal has confirmed a judgment delivered in a child abduction case where the Family Court concluded that a child’s habitual residence was in Malta.

The toddler’s Norwegian mother had requested the Department for Standards in Social Protection to take action for her child to be returned to Norway by his Maltese father.

The father pleaded that he and the mother had come to Malta when their son was only a few days old and had intended to establish their residence here. So the child had not been abducted.

The first court heard that in terms of the Hague Convention on child abduction no court was obliged to order the return of a child if the contesting parent had consented to the child travelling.

Nor was the court obliged to return the child if this could expose the child to physical or psychological danger.

The Family Court pointed out that the child’s parents had met on the internet in 2008.

The mother had travelled to Malta that year and had remained here until January 2009. On her return to Norway she discovered she was pregnant, and the father moved to Norway to be with her.

Following the birth of the child in September that year, the father discovered that the mother had another child from a previous marriage. This child had been removed from her care and placed in a foster home.

The second child was born suffering from withdrawals from the medication the mother used to take and the Norwegian Social Services had intervened.

This led to both parents fearing that this child would be taken away from them and they decided to leave Norway and come to Malta when the child was only a few days old.

They had the child registered as a Maltese national and established a home together until their relationship ended last year. The father was awarded care and custody of the child by the local courts.

The first court concluded that the couple had intended to establish their residence in Malta and that this country constituted the child’s habitual residence.

It also declared that it resulted that the mother suffered from mental illness and that her state of health was poor.

The court, therefore, refused the mother’s request to order the return of the child to Norway.

This decision was appealed by the department director.

The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J Magri and Mr Justice Tonio Mallia, pointed out that to establish a habitual residence, a person had to travel to a location for that specific purpose.

In this case, when the couple came to Malta it was with the intention of establishing themselves here indefinitely.

They had set up their home and the father started to look for work. The child had, therefore, not been abducted from his habitual residence.

The Court of Appeal, however, declared that it did not believe that the child would suffer any physical or psychological damage if he returned to Norway.

Although it might be true that the mother was incapable of looking after him, the Norwegians were surely competent to examine this issue.

It then confirmed the judgment delivered by the Family Court.

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