Two children who were brought to Malta by their mother last year will not be returned to Belgium, where their father lives, after a court turned down a request by the Department of Social Welfare Standards.
The children – a three-year-old boy and a baby girl – lived in Belgium with both parents until, in May last year, the mother brought them to Malta and moved in with her parents.
Mr Justice Robert Mangion, in the Family Court, ruled that the father was aware that the mother was bringing the children to Malta and that she had eventually decided to stay.
Evidence of this was that he was looking for a job in Malta and had put their matrimonial home in Brussels on the rental market, as he too was planning to relocate to Malta.
The case was opened by the department last March after the father went to the Belgian Central Authority and filed a claim under the Hague Convention on the Civil Aspects of Child Abduction for the return of his children.
Her husband had reckless, unprotected sex
The court heard that the mother and father were in agreement about the facts that led the mother to come to Malta – the couple were experiencing marital problems brought about by the father’s sexual promiscuity.
In fact, in his testimony, the father admitted to suffering from sexual addiction and said he had sought psychological help.
Neither of them contested the fact that Belgium was the children’s habitual place of residence and that both parents had custody.
In May 2014 the mother came to Malta with the children to vote in the MEP elections with the consent of her husband. He said he had expected her to return after a week or so. But the mother said he was well aware they had not decided on a return date and she had moved to Malta, to stay with her parents and clear her mind over what was going on in the marriage.
She recounted how she had discovered that, when she was pregnant, her husband had reckless, unprotected sex in threesomes, visited prostitutes and even had sex at work.
The couple worked in the same institution and had long been discussing relocating to Malta, she said. She had asked her husband to come to Malta as it would cut him off from the circle of promiscuity he was involved in and perhaps save their marriage. Meanwhile, while she was in Malta, he applied for jobs here.
But when he visited Malta in December, the mother said, she found photos on his Facebook page that made her realise he had not changed and, soon after, she filed for separation.
Mr Justice Mangion noted that when the mother came to Malta, the father expected her to return at some point. When she decided not to, she had committed “unlawful retention” of the children.
However, the father was then in touch with the mother and, as the issues unfolded and she filed for separation, he intensified his search for a job in Malta and even put their Belgian home on the market.
This showed that he was “acquiescing to the retention” of the children,” the court said.
“It is... established jurisprudence that, once a parent acquiesces to a retention, he or she may not withdraw that acquiescence,” the judge ruled.