Warrant issued due to actual fear of flight of minor from Malta

The Family Court has issue a warrant not allowing a minor to travel due to a real fear that the father would take the child aboard without the consent of the mother

The Family Court issued a warrant not allowing a minor child to travel because there is a real fear that the father would, for the second time, take the child abroad without the mother’s consent. This was decided on 3rd December 2018 in MG v JB.

The applicant MG filed an application before the Family Section of the Civil Court, asking the Court to prohibit their child from travelling.  The mother explained that there are mediation proceedings to regulate the case and custody, access and maintenance of the child. She further explained the parties have been in a relationship and had a child, but their relationship finished in August 2018. She said that there was little co-operation and the father wanted to dictate what happens to the minor. The daughter is eight years old and according to the mother, she was asked by the father to steal her passport and travel to London.  She thought she was going to Gozo.

The father is now asking that the child live with him in the UK and this without the mother’s consent.

The child’s father replied by saying that there is a contract between the two stating that his daughter lives one week with him and the next with her mother. He accused the mother of dictating what takes place with his daughter. In the meantime, he discussed with the mother whether the daughter can live with him in London, where she would go to school there. He commenced legal proceedings for the Court to allow his daughter to live in London and therefore, he did not take the law in his hands.

The Court presided by Madame Justice Jacqueline Padovani Grima analysed the evidence presented and saw the father’s affidavit, who explained that he has an opportunity to study for a Ph.D. and at the same time work at a university in London.  He enrolled his daughter at a private school close to the university.

The mother then testified that she suspected that her daughter will leave Malta because she stole her passport from a handbag.

The Court quoted from Article 877 of the Code of Organisation and Civil procedures that a warrant may hold an underaged person from going abroad. According to Article 873 (2) a warrant should not be issued if the applicant does not have prima facie right. A prima facie right is not a simple difficulty or discomfort. Furthermore, when deciding whether to prohibit a minor from travelling the Court must hold the minor’s interest as a top priority.

In this case the Court saw that the parties have joint custody and that the child lives one week with one parent and another with the other.  It was not contested that the father took the child to the UK without the mother’s consent. The father has an opportunity to work and study in the UK and has to take a decision imminently.

Therefore, there exists a real risk for the father to take the child once again without the mother’s consent. The Court pointed out that although the father could be disappointed, his actions were unjustified. He acted because he disagreed with the mother. The child is of both parents and every declaration for a child to be taken abroad must have the consent of both parties. If this does not take place, then there are severe repercussions. The court then moved to uphold the request for the warrant to be issued and ordered that the passport be withheld.

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