Court allows daughter to retain mother’s surname after father recognises her at 15 years old

The Civil Court (Family Section) in a judgement on 29 October, 2014 allowed a 15-year-old daughter to retain her mother’s surname, even though her father recognised her.

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Malcolm Mifsud
6 March 2015, 8:00am
The father filed a lawsuit against the mother, stating that they had a sporadic intimate relationship for a number of years and from this relationship they had two children, who are today still minor children. The mother had hinted to him that the children were his and as such allowed him to visit them and he also paid maintenance.

Then without warning he was barred from seeing the children and when he approached the mother to see them, she told him that he was not the father. He had since tried to carry out DNA tests, but was not allowed by the mother. He then filed a judicial letter in terms of Article 86 of the Civil Code calling upon her to accept that he is the father and that the children’s birth certificate be changed to show his name, instead of ‘unknown father’.

There was no reply to this judicial letter and he instituted court proceedings. He therefore asked the court to accept him as the father of the two children and order a change of their birth certificates. 

The mother filed her pleas stating that the relationship was not only sporadic but turbulent. She described the father’s access to the children as also sporadic and she had to remind him to pay maintenance. She claimed that he dodged his responsibilities as a father and for 11 years he contributed financially only on four occasions. She was therefore surprised with his requests, especially when he had suggested she have an abortion when he learnt of her pregnancy. 

The Director of Public Registry replied that the Registry was not aware of these facts.

Mr Justice Robert Mangion, who delivered judgement, pointed out that in a sitting the parties agreed that the plaintiff was the father of one child and not of the other. 

The court in its judgment quoted Articles 86A, 87 and 88 of the Civil Code:

“86A. (1) The mother of a child conceived or born out of wedlock who is not acknowledged by the father, and that same child, may at all times make a judicial demand to establish the paternity of the child and for the court to order the registration of such paternity in the relative acts of civil status.

“(2) The judicial demand referred to in sub-article (1) may also be sought by the heirs or the descendants of the child if the same circumstances as those which are referred to in article 85 will exist.

“87. (1) The acknowledgment of a child conceived and born out of wedlock may be made in the act of birth, or by any other public deed either before or after the birth.

(2) Any declaration of paternity or maternity made otherwise by either of the parents, or by both, or by a minor, can only be admitted as evidence of filiation in an affiliation suit.

“88. An acknowledgment shall only operate in regard to the parent  making  it, and it shall not confer on the child so acknowledged any right against the other parent.

“100A. In causes to which this Sub-Title makes reference, the court may, without prejudice to any evidence that may be produced by the parties according to law, requires the parties to submit to examinations as referred to in article 70A, and in the same manner and in the same circumstances.”

The evidence of a DNA test showed that the plaintiff was in fact the father of one of the children. 

Mr Justice Mangion held that the child in question was 15 years old and always used her mother’s surname. All her documents, more importantly her educational documents, use her mother’s surname and therefore, the judge ordered that the child does not assume the father’s surname, but make use of the surname she always was given, that of her mother.

The court ordered that the father was to pay all the judicial costs because it took him 10 years to seek paternity.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

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Malcolm Mifsud is a partner at Mifsud & Associates.