A five-year-old Eritrean girl is caught in the middle of a heartbreaking legal battle between the Maltese woman she has lived with all her life and her biological parents, who are migrants about to relocate to Switzerland.

This situation would never have arisen if foster rules were enforced

Today, a judge will seal the girl’s fate, deciding whether she will leave tomorrow, as planned, with her parents and three siblings, or, as her “ad hoc” guardian is requesting, go on with her life in Malta until a smoother transition can take place.

Tragically, experts warn, this is not a one-off case.

Fostering regulations are frequently “sidelined” when it comes to migrant children who are offered up temporarily to Maltese volunteers by their vulnerable parents.

This is what happened to Clarissa* when she was just a four-month-old baby and a young Maltese woman, who used to help at the Ħal Far open centre, accepted to babysit her while the child’s mother sought employment.

But when Jane*, a 35-year-old with no children of her own, realised Clarissa was spending the rest of her week at a crèche, she offered to provide care on a full-time basis.

Although there was no paperwork involved, Clarissa spent five years living with Jane, who paid for all her needs, enrolled her in a private school and sent her to extracurricular activities such as ballet and gymnastics.

But despite Clarissa developing a bond with Jane, her extended family, school friends and teachers, her family has been given the chance to build a new life together and eventually get ­citizenship in Switzerland.

However, Jane has filed a court application for temporary care and custody of the child, as well as for a temporary warrant of prohibitory injunction, calling on the courts to stop the resettlement until the child’s interests are properly addressed.

Girl, five, caught in custody battle between families

Jane, who is being represented by lawyer Nicole Vella, says she does not want to stop Clarissa from starting a new life but demands that the child is prepared for the traumatic move and assisted by social workers throughout the process.

Clarissa was at no stage properly prepared for the resettlement and has already displayed signs of trauma and heartbreak at the thought of leaving the home she grew up in, according to Jane.

“She is being treated like a mobile phone... Just being picked up and taken abroad. She needs to be prepared for this completely different life,” she added.

Jane says she was only told about the relocation earlier this month. Although she had prepared herself for such an eventuality, she was taken aback by the insensitive process that ensued.

She also fears Clarissa’s parents only want her now because without her they would not be accepted by Switzerland, which takes in the most vulnerable of refugee families.

On Thursday night, Clarissa was handed to her parents after a bitter ordeal at a police station. Clarissa’s biological mother filed a report against Jane, claiming she was refusing to return her daughter.

Jane brought Clarissa to the police station where most of the officers were at a loss about what to do, particularly when the closeness between the girl and the Maltese woman became so clear.

Eventually, an inspector asked Clarissa to choose who she wanted to live with, in the presence of Jane and her biological mother.

Jane admits the child chose her mother but says she immediately threw a huge tantrum: “She was hitting her head and saying, ‘sorry, they’re mixing up my head!’”

Jane says she is “disgusted and disappointed” by all the authorities involved because none of them were professionals capable of dealing with the sensitivity of such a case involving children.

She also wants this story to warn people in her position who think they are doing a good deed by caring for migrant children.

“My advice is to give them back because when something like this happens no one will help out with the breaking of this bond for the child... I feel like I shouldn’t have tried to do something good.”

Meanwhile, the lawyer of Clarissa’s parents, Lara Dimitrijevic, says this story began as an “act of kindness towards a very ­vulnerable family” which has now been “abused”.

“[Jane] provided opportunities which the parents could obviously not offer their daughter,” she said, “but they never gave consent to give up custody.”

She insists that the parents kept very close contact with Clarissa, who refers to her mother as “Mummy” and also has strong bonds with her father and three siblings.

Dr Dimitrijevic said the migrant family now had a “golden opportunity” to move to Switzerland, where they have family.

“They went through due process. UNHCR conducted interviews with all the family, including [Clarissa] and never noticed any irregularity, showing she had a strong bond with the family.

“This is a one-off opportunity. If they do not take it they will lose it and the family is not prepared to leave her behind. It’s either all of them or nothing,” she said,

The lawyer insistedthe parents were acting in the child’s interests and were even prepared to stay in Malta if their child was prevented from leaving.

Meanwhile, human rights campaigner Neil Falzon (Aditus) says this situation would never have arisen if regulations on fostering and adoption were enforced.

“I don’t know why there is this idea that you can go to the open centre as if it’s a supermarket and choose a child because you want to help,” he said.

Maltese people and migrants were entering into these “ad hoc” arrangements out of goodwill but by doing so out of a legal framework neither was acting in the child’s interests, he said.

If this happened within a controlled system, everyone involved would have been given counselling and training to make sure the fosterers and parents were prepared for these eventualities.

“Had this been done within a legal framework, the whole discussion would not have arisen,” he said, warning there were “many” similar cases where laws were being “sidelined”.

* Names have been changed to protect the girl’s identity.