Country to The Hague Convention is a stumbling block for children to travel

The Court took into consideration that if a child travels with one of the parents to a country not a signatory to the Hague Convention on the Civil Aspects of Child Abduction, the other parent may not be reunited with the child, if the parent decides not to return to Malta. This was decided in a decree issued by the Civil Courts (Family Section) on 15 September 2020 in a case GC -v- YC. The Court as presided by Madame Justice Jacqueline Padovani Grima.

The father of a minor child filed an application for a prohibitory injunction in order for his minor child not to travel with his mother, although she has custody of the child. The parties are separated by a contract. The contract dictates that the minor child should not leave Malta without the written consent of both parties.

The minor child has a passport without his signature on the application. He learnt that she sold her house in Malta and therefore, there is a real danger that the minor child will leave Malta with the child. The Country she would be travelling to is a country which is not a party to the Hague Convention. He asked the court to prohibit the minor child from travelling.

The mother replied to the application and objected to the father’s request. She explained that she needs to travel to her home country following a tragedy took place to her family and needs to take care of her niece and even adopt her. As to the minor child’s passport, she got to know that she can apply without the father’s signature. She obtained the passport during the COVID19 period, but did not intend to travel. She explained that she has ties with Malta and intends to live in Malta, together with her adopted niece and her child. The child is enrolled to a nursery. She further explained that it is true that she sold her house, but would like to purchase another property in Gozo.

The Court went through the evidence, including the father’s testimony. He objected to his child travelling because it was not safe in this COVID-19 pandemic period and there was no guarantee that she will be returned. He explained that the mother has a house in this country and has obstructed him in seeing his daughter. During the COVID-19 period, the mother objected that he see his daughter.

The mother denied that she did not allow the father seeing their daughter due to COVID-19. Access did not take place, because he did not pass on his roaster.

The Court quoted from Article 877 of the Code of Organisation and Civil Procedure, which reads:

“877. (1) A warrant of prohibitory injunction may also be issued to restrain any person from taking any minor outside Malta.

(2) The warrant shall be served on the person or persons having, or who might have, the legal or actual custody of the minor enjoining them not to take, or allow anyone to take, the minor, out of Malta.

(3) The warrant shall also be served on:

(a) the officer charged with the issue of passports enjoining him not to issue, and or deliver, any passport in respect of the minor and not to include the name of the minor in the passport of the minor’s legal representatives or in the passport of any other person; and

(b) the Commissioner of Police enjoining him not to allow such minor to leave Malta.

She also accused the father for being in breach of the separation contract, since he failed to forward her a copy of his roaster in order to agree on the visitation.”

The Court is precluded from entering into the merits of the case, but the court has to be satisfied that there is a prima facie right and the warrant is necessary to preserve that right. In the particular case the mother does intend to travel. The Court held that the mother was not credible, since she contradicted herself when he blocked the father’s access to the minor child. He had blocked the access on the premise of the COVID-19. She was unclear when she would return to Malta if she had to leave with the child. Furthermore the risk increases because she is now selling the house.

The Court pointed also at the fact that the country where the mother wanted to go is not a party to the Hague Convention and therefore, it would be close to impossible for the father to be reunited with the child.

The Court then moved to uphold the request for the child to be banned from travelling.