A family court has told a diplomat stationed in Malta that he cannot claim diplomatic immunity to defy a court order and prevent his divorced wife from seeing their sons.

In a decision delivered on Friday, the court confirmed a warrant of prohibitory injunction that the mother had sought and effectively stopped the man, who works at Spain’s embassy, from travelling out of Malta with one of the couple’s minor sons.

The other child had already been taken out of the island, allegedly without the mother’s consent. 

In July, the woman had turned to the courts to stop her estranged husband from taking their other child out of the country, and obtained an injuction that was provisionally upheld by the court. 

But the father hit back, claiming that his diplomatic status meant that he could not be bound by the civil jurisdiction of a foreign court. 

The couple were 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 sons, now aged 11 and 13,  who live with the father.

A Maltese family court gave her the right to see the children every week while supervised. 

However, in August, on the eve of one such scheduled visit, the father informed the Child Protection Services agency that he would not be allowing any further access to the children until “the matter of diplomatic immunity is settled in court.”

That move, described as “completely abusive” by the woman’s lawyer, effectively blocked the mother’s access to the child who was still living in Malta. 

Her lawyer also noted that the father had previously filed an injunction to stop the mother from leaving the islands with their son – one that was “identical and competing” to that which she had filed against him. 

The father could not now raise the issue of diplomatic immunity to defeat his ex-wife’s bid for an injunction, argued the lawyer.

The Family Court, presided over by Mr Justice Anthony G. Vella, agreed with that argument, stating that the father “cannot have the proverbial cake and eat it.”

He could not first request an injunction against the mother and then raise the defence of diplomatic immunity to defeat a similar move in his regard, said the court.

Mr Justice Vella observed that diplomatic immunity “hardly applies to civil domestic disputes between parents.”

It was not meant as “a carte blanche for the diplomat to do as he pleases, or that such a person is above the law, or in Orwellian language, more equal than others,” declared Mr Justice Vella. 

“Diplomatic immunity is not intended to serve as a licence for persons to flout the law and purposely avoid liability for their actions,” said the court, citing a publication on the topic by the United States Department of State. 

In this case, the father could not “hide behind the thin veil of diplomatic immunity.. and argue that he is untouchable or above Maltese law.”

After taking note of an “extensive and exhaustive” decree delivered by the Family Court in ongoing mediation proceedings between the divorced couple, Judge Vella observed that discussions were “far from amicable.”

The father was making it very difficult for the mother to “even see her child” and refused to grant her access, thereby defying the court order in that regard.

No matter how aggrieved he might feel, such flouting of a court decree was an offence against public order, observed the Judge. 

In light of such considerations and since the father was refusing to cooperate with the other parent, the court concluded that “the issuing of an injunction prohibiting him from leaving Malta with the child is more than justified.”

Lawyer Robert Thake is assisting the mother.