Maltese law does not provide the legal tools for a person to stop another from travelling outside Malta, however, it does provide for a restrain on any person from taking any minor outside Malta.
Such is by a warrant of prohibitory injunction against another person, ordering such person not to take or allow anybody to take a minor out of Malta. The warrant shall be served on the person or persons having, or who might have, the legal or actual custody of the minor enjoining them not to take, or allow anyone to take, the minor out of Malta.
The result which this warrant aims to achieve is a level of protection of the minor child, stopping the child from being taken outside Malta, since such departure would cause the other parent to suffer an irremediable prejudice and not mere difficulty, discomfort or concern. In such procedures, the court seeks to protect one of the parents from being arbitrarily deprived of a relationship with the minor. This in itself is based on the principle of the best interests of the child, since a child needs the presence of both parents in his life in order to have the possibility to develop a good and strong relationship with both, and not to hold the other parent hostage in a particular country.
A warrant of the sort is usually a legal tool which one parent uses against the other when the applicant feels that there is a real fear that the other parent or other person may leave the country with the minor child arbitrarily, and it is also served on the Commissioner of Police enjoining him not to allow such minor to leave Malta, as well as the officer charged with the issue of passports enjoining him not to issue, or deliver, any passport in respect of the minor, and not to include the name of the minor in the passport of the minor’s legal representatives or in the passport of any other person.
Since injunctions of the sort are considered to be of an urgent manner, if everything is in order, the court normally accedes to the warrant immediately, then gives the defendant a short period of time to file a reply and also gives the parties the opportunity to testify before it.
In a recent court decree, following a warrant of prohibitory injunction (warrant number 188/2021/2 JPG, decided by the Family Court on November 5), a minor’s father filed a warrant of prohibitory injunction against the minor’s mother, asking the court order that the mother, or any other person, shall not be allowed to travel outside of Malta with the child. Such a warrant is also applicable to the applicant father himself.
The child’s father highlighted that the mother was from a country outside the EU, yet which is a signatory to the 1980 Hague Convention on the Civil Aspects of Child Abduction.
The parties presented two diametrically opposed versions; the applicant was adamant that the defendant was about to abscond with the child to her homeland, while the defendant denied it and stated that she had established herself in Malta both professionally and socially.
The applicant claimed that the child’s mother expressed her wish to return to her country of origin, that she was allegedly fed up of Malta, was facing legal custody proceedings and also had financial problems, all of which raised red flags to the applicant. The mother had also previously filed an application asking the court to waive the necessity of the father’s signature for the renewal of the minor’s passport.
The child’s father also confirmed that the child had asked him for a passport for her birthday and that she had even wished for a passport at a wishing well. Furthermore, the applicant was worried that had the child to be taken to the mother’s country of origin, he had no control over whether the minor would be granted a foreign passport or travel document (even through unconventional matters), and that it would be way easier for the defendant to disappear with the child, and deprive the applicant of the possibility of having a relationship with his child.
On the other hand, the defendant (mother) affirmed that even though it is her general wish to travel and for the child to have a relationship with her side of the family, outside of Malta, she however rejected any claims that she was looking to leave Malta with the child permanently and also confirmed that she was contractually bound to work in Malta for the next five years.
The child’s mother further confirmed that she felt uncomfortable having the minor undergo multiple swab tests (since the minor is not yet vaccinated against COVID-19), and thus did not intend to travel with the minor. Moreover, the child’s passport had expired four years back and it had been submitted to the Inspector of Immigration Police according to the court’s first decree in the acts of this warrant.
The court, however, further noted that the mother’s country of origin, albeit being a signatory to the 1980 Hague Convention on the Civil Aspects of Child Abduction, had reported a significant number of court delays on the part of the judicial authorities which has negatively affected cases in 2020, and thus should the mother abscond with the child to her country of origin, such judicial delays may cause irremediable harm to parent-child relationship, especially since the child is very young.
Moreover, the court considered that such country is at present a ‘level 4 country’ and thus COVID-19 poses a significant threat where even fully vaccinated travellers may be at risk for contracting and spreading COVID-19 variants.
Based on the above, the court considered that the essential elements of the warrant of prohibitory injunction concur and ordered that the mother be prohibited from taking or allowing anybody to take the child out of the Maltese islands, while the said child’s passport would remain deposited under the authority of the same court.
Rebecca Mercieca is an associate at Azzopardi, Borg & Associates Advocates.