Mother who illegally took son abroad spared jail 'in best interest of child'

A woman who admitted to illegally removing her son from Malta was handed a probation order after the court ruled imprisonment would cause disproportionate harm to the child.

The woman was charged with taking her son, who was under the age of 16, out of Malta in violation of an order issued by a competent authority.

The case began after the child’s father filed a report at the Bormla police station, alleging that the accused had taken the boy abroad without informing him. The estranged couple had an agreement that required mutual consent for such travel to take place.

The Police Immigration Section later confirmed the journey to Libya had indeed taken place. A representative from Identità Agency testified that the boy’s passport application had been filed through the Embassy of Malta in Libya and the father had not signed it.

Testifying in court, the father explained that he and the accused had been in a relationship and shared a son. The boy had recovered from cancer in 2019. Back then, he had agreed that the mother would take the child to Gozo for three days, during which he had one hour of access under a Family Court decree. They had also agreed the child would spend Christmas with him, as he had not seen his son for a long period during the boy’s treatment.

However, when he went to collect the boy from the residence of the accused’s mother, he was informed that both the accused and the child had already been missing for five days.

The accused’s father had already filed a report but police had refused to accept his complaint because he was not the boy’s biological parent. This led the father to take action. The father also attempted to reach the mother through WhatsApp, but to no avail.

He only learned of the child’s return to Malta after his partner, who works as a school van driver, overheard a teacher mention the boy’s name at the primary school where he attended. This confirmed that the child had resumed schooling in Malta.

During cross-examination, the father denied ever causing scenes at the hospital or being addicted to drugs when the child was ill. He also produced bank statements showing he supported both the child and the accused after their return to Malta.

A psychologist testified that she had prepared a report for the accused, confirming the woman had lived in Libya for two and a half years prior to returning to Malta. She also stated that the accused sought psychological support for her son.

A representative from the Child Protection Directorate testified that, in the child’s best interest, she had recommended to the Family Court that the minor reside with his father. Police assistance was later required to remove the child from the mother’s residence. The accused had repeatedly sought help because the child was aggressive towards her and his siblings. The social worker emphasised that the child required stability and structured care.

Medical doctor Daniel Vella Fondacaro, who treated the child for two years, confirmed that the boy suffered from attachment disorder, a condition often arising when a child lacks a stable early-life family environment. He confirmed that the mother reported that her son suffered from severe behavioural issues.

The doctor confirmed that family therapy attended by both parents was most needed and recommended co-parenting as the most suitable rehab for the child.

The woman filed an early plea and the court proceeded to sentencing.

In determining the penalty, the court stressed that punishment is not societal revenge but a tool to rehabilitate. It referred to extensive academic research showing that children with incarcerated parents often suffer psychological, behavioural, academic, and social harm.

Given that the minor in this case already exhibited behavioural difficulties, and that expert testimony consistently emphasised the importance of co-parenting and continuity of therapeutic support, the court held that imprisonment would seriously undermine the child’s welfare.

The court therefore imposed a three-year probation order on the woman, emphasising the need for ongoing family therapy in order to promote co-parenting to provide stability for the minor.

Although the original police citation included four charges against the woman,  the court noted that the third and fourth charges were not listed in the Attorney General’s note of referral for judgment.

Since the AG’s referral operates as the formal indictment in such cases, any charge not included cannot be adjudicated. The court therefore abstained from taking cognisance of those two charges and proceeded only on the first and second, to which the accused admitted.

Inspector Gabriel Kitcher prosecuted, while lawyer Stefano Filletti appeared for the accused. Lawyer Jacob Magri appeared parte civile. Magistrate Claire Stafrace Zammit presided.