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Court orders son to be returned to the UK

The Court ordered that a young boy be taken back to his ordinary residence in England, after he travelled to Malta without the father’s consent. 

Malcolm Mifsud
3 October 2014, 8:00am
This was decided by Ms Justice Abigail Lofaro on 18 September, 2014 in the Director of Social Welfare Standards Department -v- AB.

The Director of Social Welfare Standards Department filed the application in terms of the Child Abduction and Custody Act (chapter 410 of the Laws of Malta), after the child, called CD in the judgement, travelled to Malta. The parents married in May 2013.

The father, PQ, was working in Malta in September 2013, but the mother and the child remained in Bradford, England. The parents spoke on the phone and communicated on Facebook early in November 2013. The father then discovered that his wife and child were in Malta.

On 26 November, 2013 the Maltese central authority received a request from the English central authority in order to file an application for the return of the minor child. According to the UK Children Act 1989 the custody of the children are vested in the parents jointly and as a consequence the mother is prohibited from unilaterally changing the residence of the child. The court in Malta was asked to return the boy to England.

The mother defended the action by arguing that the parents had intended to move to Malta and establish their residence here, however, the husband left Malta after he was dismissed from work. She also argued that as an EU citizen she had a right to establish her residence wherever in the EU. She further submitted that it is not in the best interest of her child to move back to England. 

Ms Justice Lofaro examined the versions given. The father submitted that he did not give his consent for his son to come to Malta, while the mother told the court that she is happy in Malta and could find a job and make a living here. The father confirmed that she travelled to Malta with the child without his permission.

The Court pointed out that the mother contradicted herself when she had told her husband that they were in Malta. The Court questioned why would the mother and son come to Malta when she knew her husband was without a job and had an affair with other women.

"The Court concluded that England and not Malta was the son’s ordinary residence"
The Court considered whether the husband knew that the mother and child were coming to Malta. It was determined that the change of residence took place without his consent, although whether he knew that they were coming to Malta was not certain. The intentions of the mother are not clear either, although it was established that there were matrimonial problems.

The Court then concluded by deciding that England and not Malta was their son’s ordinary residence and in accordance with the Child Abduction and Custody Act ordered that the child be returned to England.

Malcolm Mifsud is a partner at Mifsud & Associates.
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