Traditional perceptions of the respective roles of parents in their child’s upbringing belong in the past. Recent years have seen notable changes in the way parental responsibilities are shared between parents. The respective ‘traditional’ roles of either parent have faded into a more equal collection of rights and duties; and today, it can no longer be said that one parent has duties which the other does not.

In fact, in various recommendations, the Council of Europe has recognised this development and emphasised that “the family sphere must secure women and men the same parental rights and responsibilities, irrespective of marital status, including provisions on economic maintenance for children, parental responsibilities and contact with children in cases of separation.”

The essential utility of contact with children as an integral part of the exercise of a sound family life is widely recognised by academics, professionals and, above all, by the European Court of Human Rights. In fact, the European Court of Human Rights has, in various judgments, acknowledged the indispensability of this concept. As a matter of fact, it was said time and time again that parent-child separation should be the exception and not the norm.

This principle holds true both when the family is still intact as well as when the family has gone through some sort of marital disaccord. This, more so when today’s reality shows that in Europe, there are more than 10 million children whose parents are divorced or separated. Studies show that it is valuable for both the parent and the child to preserve the relationship between each other and to foster consistent direct interaction.

The decisions of our family courts have always, by and large, sought to operate under one basic principle: that the end of the relationship between spouses does not mean and should not lead to the termination of the parental relationship that adults have with their children. Separation proceedings often lead to a situation where children reside with one of the parents, and away from the other. This notwithstanding, most children are encouraged by professionals, and in turn by our courts, to build a relationship with the non-resident parent, as it is understood that contact with both parents is critical, especially for young children.

It can be said that the principle of continuation of a family relationship with the non-resident parent is in tune with the guarantees offered by Article 8 of the European Convention of Human Rights – which establishes the principle that each and every individual is to be afforded the right to respect for his private and family life.

The relationship between spouses should not lead to the termination of the parental relationship adults have with their children

The evolution of the role of the non-resident parent was the matter at hand in the case of ‘X’ in his own name, as well as in representation of his four minor children v Attorney General and decided by the Civil Court, First Hall in its Constitutional Jurisdiction on April 16 (27/2019/1/LSO).

In this case, the plaintiff, the father of four minor children, was undergoing separation proceedings. Initially, the father had been given the right to meet his children under the guidance of a supervisor from Aġenzija Appoġġ. Other than his youngest child, all other three minors were reluctant to maintain their relationship with their father.

This situation led the court to seek the expert opinion of professionals. After noting how the relationship of the children with their father had deteriorated, the court saw that it was in the best interest of those very same children that the father’s visitation rights be suspended.

The plaintiff sought to challenge this decision, basing his grievance on Article 8 of the European Convention of Human Rights – the right to respect for private and family life. He instituted constitutional proceedings (the case at hand), requesting the court to issue an interim measure and allow him to have visiting rights vis-à-vis his children.

The manner in which the Civil Court, First Hall in its Constitutional Jurisdiction dealt with this complaint was noteworthy, to say the least.

Referring to the facts at hand, it noted that if contact between the parent and his child is suspended abruptly, this will inevitably lead to irreparable damage between the father and his children, which would make it more unlikely for the relationship to ever recover. If the father was prohibited from spending time with his children, there was no way that a relationship could be fostered, and in turn, there was no way that the children would then want to spend time with their father.

The reasoning is interesting, and very well thought. Inadvertently, the decree had created a textbook catch-22 situation, worthy of Joseph Heller’s finest examples. The father could not visit his children because the relationship was considered not to warrant such visitation rights, unless things improved. Yet, things could not improve since the only way things could improve was through visitation, which the father was prevented from having.

The Civil Court First Hall remarked that even though the presiding judge before the Family Court had the opportunity to discuss the matter with the three older children, the youngest child was never heard. In fact, it was observed from the psychological reports exhibited before the Family Court, that the youngest child did not have any difficulties to maintain his relationship with the claimant. And yet, he was prevented from seeing all four children, including that child the relationship with whom was perfectly healthy.

In its decree, the court furthered the idea that the interaction with the non-resident parent, in this case, the father, is crucial for the child’s interest and should only be restricted if there are convincing reasons for doing so. It concluded that in this particular case, whereas there existed compelling reasons which justified the decision of the Family Court with regards to the older three children, the same could not be said with regards to the youngest child.

The Court did not stop there. It appointed a clinical psychologist to put forward any recommendations in order to enhance the parental relationship between the father and his children, and moved to issue an interim measure to allow the father to visit his youngest child once a week, under supervision. 

Renè Darmanin is junior associate at Azzopardi, Borg & Abela Advocates.