Our law, like many other continental frameworks, provides its own set of rules for the impeachment or confirmation of biological parentage. These rules do not lend themselves to straightforward interpretation and are often complex in their differentiation of various possible base scenarios leading to judicial action.

In the proceedings in the names ‘AB v CD pro et noe and the Director of Public Registry (application number 44/18/2 AGV)’ the plaintiff had originally brought a claim for disavowal of paternity of a minor. Ordered by the court in first instance, the plaintiff rooted his claim in terms of articles 99, 77(b) and 70(1d) of the Civil Code. Naturally, the defendants contested the claim.

Article 99 provides for the possibility of impeachment of an acknowledgment of a child conceived and born out of wedlock. Article 70(1d), then provides the possibility to any spouse (except, of course, for the spouse who gave birth to the child), to bring an action to repudiate a child born in wedlock if such spouse proves that, during the said time, the spouse who gave birth had committed adultery or had concealed the pregnancy and the birth of the child.

Article 77(b) provides that the filiation of a child born in wedlock may also be impeached by any interested person if said person proves that, during the said time, the wife had committed  adultery and, furthermore, produces evidence of any other fact which may also be genetic in nature and provides scientific tests and data that exclude the husband as the natural father of the child. Proceedings were conducted in the English language.

The plaintiff’s claims were rejected in first instance. The court noted, with respect to the application of article 99, that the English language version of the law and the Maltese language version of the same provision are not identical.

The English language version, the court noted, speaks of the impeachment of an acknowledgment of a child conceived or born in wedlock, whereas the Maltese version refers to the right of impeaching the acknowledgement of a child “imnissel u mwieled barra miż-żwieġ” . This, the court argued, created an anomaly as the English version is speaking of a “legitimate child”, whereas the Maltese version refers to an “illegitimate child”.

The court noted that the Maltese language version is the one that should prevail.

Essentially, this meant that the plaintiff brought forward his action for disavowal of paternity, attempting to impeach an acknowledged “illegitimate child”.

The court agreed with both defendants that article 99 could not apply to the plaintiff’s claim, as from the facts of the case, it had transpired that the minor child was born outside wedlock, after the defendant had a relationship with another man and later, the plaintiff and the defendant (who had previously been in a relationship together) decided to reconcile, get married and legitimate the child through the subsequent marriage. Having legitimated the child through marriage, the court argued, the child cannot be conceived as an “illegitimate child” any longer and the presumption is that he/she was always conceived and born in wedlock.

The parties got married two years after the minor was born, so essentially there could have never been any adultery committed by the defendant – as adultery of itself can only occur within a marriage

The plaintiff’s claim, as based on article 70(1d), was rejected as from the evidence produced throughout the case, it resulted that the parties got married two years after the minor was born, so essentially there could have never been any adultery committed by the defendant – as adultery of itself can only occur within a marriage.

The plaintiff’s claim in terms of article 77(b) was also rejected. The court argued that for a plaintiff to proceed under article 77(b), the court must first and foremost ensure that by proceeding with such an action, no prejudice would be caused to the minor. By creating such presumption at law, the legislator wanted to uphold the social and legal interests of the child, more than the biological interests at stake, in the sense that it would be more detrimental to a child to find himself suddenly declared to be “illegitimate” once again, when he was legitimated for all intents and purposes at law. One cannot simply overturn a child’s life upside down after having brought him up within a family structure, with a person who he always considered as his parent, the court noted.

The court highlighted the safeguards offered by the law to the rights of a minor child, which rights are ultimately supreme. It was insufficient for the plaintiff to produce genetic tests that confirm that he is not the child’s biological father, as these alone, the court noted, do not suffice for the purposes of article 77(b).

The plaintiff brought his complaints to the Court of Appeal; his demands were, however, rejected once more, with costs, on appeal by judgment of March 25.

Among the complaints brought forward, the plaintiff noted that with its decision, the first court condoned a situation which does not reflect the truth, with all the legal consequences that this brings with it, meaning also that in effect, neither the scientific proof of paternity, nor the defendant’s admission, had sufficient legal strength for the plaintiff’s demands to be upheld.

He complained that the interpretation of article 81 of the Civil Code, given by the first court meant that no action he could have lodged would have been successful.

Article 81 lays down that: “No person may claim a status contrary to that which is attributed to him by the act of birth as a child conceived or born in wedlock and the possession of a status in conformity therewith” and that “likewise, it shall not be lawful to contest the status of a child conceived or born in wedlock in respect of a person who possesses a status in conformity with his act of birth.”

The Court of Appeal, however, rejected this grievance underlining that the first court did not consider article 81 since it concluded that article 77(b) did not apply because there was no adultery, since the parties married when the child was already two years old.

The Court of Appeal continued to note that the plaintiff had failed to contest the conclusion of the first court that article 77(b) was not applicable to his case − this was the relevant issue which the plaintiff should have addressed, however, no such ground of appeal was included in the plaintiff’s appeal application.

The court concluded by ordering its registrar to notify the State Advocate with a copy of the judgment in view of the discrepancy between the Maltese language version and English language version of article 99 of the Civil Code.

As I see it, there are two lines at the bottom of all this: the first relates to the continued differentiation between children born in or out of wedlock; the second relates to whether a minor’s social and legal interests should outweigh biological interests.

I, for one, will reserve my position, waiting to see whether this particular case will find itself in the docket of a court of constitutional jurisdiction.

Keith Borg is a partner at Azzopardi, Borg and Associates Advocates.