Court rejects Constitutional 'shortcut' in Christmas custody battle

A Constitutional court has stressed the importance of the correct use of proceedings filed before it whilst throwing out a father’s attempt to prevent his estranged wife from taking the couple’s young son to the UK over the Christmas holiday period, on Constitutional grounds.

The child’s mother had applied to the courts in early November, asking for a temporary suspension of the prohibitory injunction, forbidding her from taking the child abroad, in order to take the young boy to England for an eight-day trip at the end of the year.

The child's father had filed an application later that month before the First Hall of the Civil Court in its Constitutional jurisdiction, claiming that a decree by the Family Court, allowing the trip to go ahead, had breached his fundamental human rights. He asked the court to suspend the Family Court’s decree until the human rights dispute was resolved.

Arguing that the contestation had simply been filed out of pique, the child’s mother, whose parents live in England, dismissed the plaintiff’s concerns as imaginary and an “attempt to overturn a court’s decree under the guise of a breach of Constitutional rights.”

This was contested by the father, who argued that he feared the woman would not return to Malta, in which case he would be forced to engage in costly and lengthy court proceedings to see the child again.

But Judge Joseph R. Micallef, in a decree handed down from chambers this morning, rejected the application saying that the conditions that would justify the measure had not been shown to exist.

The court observed that up till the last hearing of the case, on 15 December, the defendant had satisfied the Family Court’s conditions under which she would be allowed to take the child abroad.

It also observed that “the remedy being requested in this case is specifically that of suspending the effects of that decree, making as if it had not been given.”

The argument that the decree impugned was the result of a breach of the father's right to a fair hearing, was an issue on the merits that could not only be examined to the level of prima facie, as was required for the injunction to be issued, the court said.

“Additionally, the plaintiff’s concern alone is not sufficient for this court to issue a provisional decision to suspend the effects of the decree. This is being said because...such a decision requires that the potential damage must be irreversible. This court confirmed that the decree was given by the issuing court subject to certain conditions that bind the defendant and imposing consequences should she choose not to obey it.”

The judge emphasised that Constitutional proceedings should be instituted in apposite circumstances and not where the law provides other remedies, such as precautionary warrants.

Finding no other reason to uphold the request at this stage in proceedings, the court rejected the application, saying it would not be fitting to say more about the issue at this stage, as it may be called upon to examine the merits of the issue in future, after all parties involved had been heard.

Lawyer Emmy Bezzina appeared for the plaintiff, whilst lawyers Sarah Pirotta Chircop Beck, Maurizio Cordina, Noel Bartolo and Larry Formosa are representing the mother.