Children in 'abduction' case must remain in Malta

Mr Justice Giannino Caruana Demajo yesterday dismissed an application filed by the Director of the Central Authority established following the Child Abduction Act and declared that two children had not been unlawfully retained in Malta.

This decree was delivered following an application filed by the director on August 17.

The director submitted that this application was being filed in terms of a 1999 law which had ratified two international conventions dealing with the civil aspects of international child abduction and the recognition and enforcement of custody decisions.

The Malta Central Authority said that it had been asked by the Australian Central Authority, which acted on behalf of the father.

The Australian authority had requested the Maltese authority to find out where the father's two minor children - a boy, aged five, and a girl, aged two, - were, and to obtain their immediate return to Australia.

According to the father, the woman had retained the children in Malta and had therefore changed their habitual residence, which was Australia, without his consent. This meant, according to the father, that the mother had acted illegally.

The father added that he was entitled to participate in important decisions concerning the children.

The Director of the Central Authority, therefore, asked the court to order the return of the two minor children to Australia and to give all interim orders that might be necessary to safeguard the children's interests.

However, the mother objected to the application and claimed that the father had commenced the proceedings in order to revenge himself.

According to her, the family's matrimonial home was in Malta, adding that in 2002 she and her family had moved to Australia to attempt to live there. However, they were not happy in Australia and decided to return to Malta, which they did in January of this year.

The mother denied that she and her family had returned to Malta for a holiday. They had decided that once they resettled in Malta the father would go back to Australia to sell their home there and to send all their personal effects to Malta.

Once in Malta the eldest child had started to attend school and the father was employed as a truck driver.

The woman claimed that the couple had matrimonial problems for she had been the victim of abuse at her husband's hands and she and the children had sought refuge at Dar Merhba Bik in March.

The couple's lawyers were corresponding in an attempt to bring about an amicable separation and the parties were very close to concluding this issue. In the meantime, the man returned to Australia leaving his father to manage his affairs.

In the course of the correspondence no mention was made by the father that the mother was retaining the children in Malta without his consent and the woman submitted that the only reason for the present action was her refusal to grant her husband's family access to the children.

She submitted that the Hague Convention of the Civil Aspects of International Child Abduction had as its object the prompt return of children wrongfully removed or retained in any contracting state.

Consequently, a party filing procedures in terms of this convention had to prove that there was kidnapping, abduction of the children or retention of the child without the other parent's consent.

There was no doubt that the family had returned to Malta to establish their residence here and the mother submitted that the application against her was superfluous and based on false claims.

In yesterday's decree, Mr Justice Caruana Demajo declared that he was satisfied that the children's habitual country of residence was Malta. The children had been brought to Malta by both parents and one of them attended school while his father had found employment here.

The couple had not sold the residence in Malta and had made arrangements for the transport of personal effects from Australia. All this indicated that both parents intended to live in Malta and the children's residence was therefore in Malta. The retention of the children in Malta was therefore not illegal and the director's application was dismissed.

Elaine Burmingham was legal counsel to the director. Lawyer Sandra Sladden assisted the mother.