Child's right to both parents

Children are the most vulnerable victims of serious disagreement between their parents. We sometimes get a spate of concern that we do not do enough for the "rights of the child", and then we forget about it until the next heart-rending case comes up.

At one point much was made about the delays in cases of separation and custody of children. There was a Master appointed solely to deal with the backlog of family law cases. Then we were to have a family court.

However, it seems it has all got unstuck and the delays are getting bad again. Justice Minister Austin Gatt assured The Sunday Times on Friday that the family court is on track. Legislation was approved by Parliament and was published on December 31.

Legal notices are in hand and work has been progressing on the premises which will house it - the court annexe in Strait Street.

Besides getting it housed, there are also changes which will affect the other courts, particularly the first hall. Training for the judiciary to meet these changes is being organised, and Dr Gatt said he envisaged the family court will be operating by early March.

However, I did not manage to speak to the Chief Justice to find out what is holding up the master system.

What makes family disputes particularly urgent is that unfortunately children are sometimes used by parents as an extra tool to be vindictive towards each other.

Besides, parents in dispute are manipulated and egged on by relatives who might not like one of the couple. Parents love their children and yet they do not realise the damage they cause and the long-term effects they are inflicting on the people they care for most.

In 1993 the abduction of children by a separated parent hit the headlines in Europe. Margarida Salema Omartins, a Portuguese MEP, brought up a report on the problems arising over the custody of children where the parents are of different nationalities for debate at the European Parliament in Strasbourg.

Usually when this happens it is because the parents cannot reach aggreement on custody and access, and living in different countries makes things much more difficult.

Here we had a few such cases with children of Maltese fathers and British mothers being abducted to Malta. However, the number of foreign fathers who just abandon their children and responsiblity and leave the island do not reach the press.

It is therefore surprising that an young English man who is fighting deportation and is struggling to have unsupervised access to his daughter is having such a hard time.

The young man met the Maltese mother of his child while they were both working for the same company and they started living together.

When the woman got pregnant the relationship suffered and her parents blamed David (not his real name), saying he had manipulated the pregnancy to be able to stay in Malta, a claim he denies, insisting the baby was a love child.

They are not married and the child's birth certificate does not name any father, although the mother has admitted in court that the child is his.

However, David wanted to be involved with his then girlfriend's pregnancy - visits to the ante-natal clinic, etc., and the birth, but was not always included or informed.

He was particularly incensed when he found out that his daughter was born five days after the event, through friends, and he finally got to see her six weeks later.

The relationship between David and the mother of his child has blown hot and cold, and there was a brief reconciliation between the couple when the photograph was taken.

He had also entrusted his passport to her to demonstrate his trust and as proof that he had no bad intentions. But unfortunately, the couple are estranged again.

The photo of David and his daughter show how happy they both are together and that there is a bond between them. He does not want to give his daughter up and would like to be able to share the pleasure, trials and tribulations that a father goes through watching his child grow up.

He has offered to look after his child while her mother is at work but that has been denied him. He now wants unsupervised access and his case was filed in early January. However, apparently, because the judge of the Second Hall, which is where family disputes are dealt with, is soon to retire, things have slowed down considerably and even cases filed in November have not yet been given a hearing date. And, from what I hear, the Master system is also in disarray.

David has fought a deportation order successfully. However, his work permit had expired and the authorities have refused to extend it. This means David cannot work. Obviously, if he has no means of supporting himself and most importantly his daughter, technically he is being deported and separated from his daughter anyway.

He is being financially aided by his family in the UK, but obviously that cannot last indefinitely. He is currently on one year's probation for working without a permit and smashing his girlfriend's windscreen (she was not in the car at the time), an action he regretted at once and offered to pay for the damage.

In fact the police approached him about the incident a while after it happened.

His lawyer is contending that the refusal to allow David to work is in contravention of the European Convention on Human Rights and fundamental freedoms, which is incorporated in Maltese domestic law.

Also, David cannot file a constitutional human rights case before our courts since the filing of such a case requires payment for registration. Since he cannot work, he is being denied his right to judicial review of administrative decisions and his right to individual petition, a prerequisite to every parliamentary democracy which upholds the rule of law, his lawyer says.

David got a lawyer to represent him because he insisted that he was not going into court without a lawyer.

Another thing David mentioned was that the first time he appeared in court all the proceedings were in Maltese and he could not understand what was going on.

He said that it was Magistrate Carol Peralta who had insisted that the proceedings take place in English so that David could follow the arguements being presented by the police, and had refused to deport him on humanitarian grounds, at a later court appearance.

This is case which shows how important the rights of the child are. Has a child got the right to be with both her parents, even if they are separated? And what happens when one of the parents is an alien and is refused a work permit?

Such cases are difficult because sometimes laws do not reflect humane behaviour. Cases of families being forcibly separated because of their nationality are inhumane even if certain laws uphold this practice.