A Spanish diplomat stationed in Malta is claiming diplomatic immunity after he allegedly picked up his 12-year-old son from school last week when the boy was meant to go home to his mother.

The boy has not been to school for the past few days, spending time at the Spanish Embassy in Malta, following what the mother is claiming is a “manifest abuse of diplomatic immunity”.

“On September 28… [the father] entered a restricted area [at the school] and physically stalled about 25 buses and 300 children from leaving school grounds… in order to abusively, and without consent of the mother, take custody of the boy,” the mother is claiming in a judicial protest.

Through her lawyer Robert Thake, she filed the protest against the father, the education minister, the state advocate, and the Spanish ambassador. Names are not being published to protect the identity of the boy.

The protest outlined how the couple got married in 2006 and have since divorced. When the father was posted to Malta, his ex-wife also relocated to the island so as to be close to their two sons, now aged 12 and 14, who initially lived with the father who had full custody.

Once the mother moved to Malta, she was initially given visiting rights. Today the elder son lives with the father and the youngest with the mother, as decided by the Family Court in December 2021.

However, on September 28, the father went to the private school where the 12-year-old was waiting for the bus to get home to his mother and took him without her consent, the mother is claiming.

On October 3, police accompanied by court marshals went to pick up the boy to take him back to his mother, but the father invoked diplomatic immunity. That day, a school day, the boy was found at the embassy. It is not clear whether the boy is still at the embassy or at his father’s residence.

Meanwhile, the school informed the parents that the boy could not attend until the situation was clarified. The school also said it did not offer distance learning.

Diplomatic immunity is not intended to serve as a licence for persons to flout the law

In the protest, the mother said all this was depriving the child of his right to an education. According to law, parents are duty-bound to ensure children of compulsory school age – between five and 15 – attended school. The father’s actions were “illegal and abusive” as they are in breach of the Family Court ruling. They also deprived the boy from attending school, she said.

The mother called on the Education Division to intervene to ensure the minor continues attending school and called on the courts to declare that the father was in breach of the law and was not covered by diplomatic immunity.

The mother said she also informed Spain’s foreign minister to take disciplinary action against the father.

Not the first time

This was not the first time the father tried to use diplomatic immunity to ignore the ruling of Maltese courts. In July 2021, the mother had turned to the courts to stop her estranged husband from taking their child out of the country and obtained an injunction that was provisionally upheld by the court. The father hit back, claiming that his diplomatic status meant he could not be bound by the civil jurisdiction of a foreign court. 

In September, the family court told the diplomat he cannot claim diplomatic immunity to defy a court order and prevent his ex-wife from seeing their sons.

The court observed that diplomatic immunity was not meant as “a carte blanche for the diplomat to do as he pleases, or that such a person is above the law… Diplomatic immunity is not intended to serve as a licence for persons to flout the law and purposely avoid liability for their actions”.

The court had confirmed the warrant of prohibitory injunction that the mother had sought and effectively stopped the man from travelling out of Malta with the boy. Questions sent to the Spanish embassy have not been answered.