Child abduction cases spiked in 2020, when 19 children were reportedly taken out of Malta illegally by one of the parents in a trend fuelled by “opportunities and travel complications” created by the virus pandemic.
Family lawyer Robert Thake, who specialises in child abduction cases and noticed the increase, said COVID-19 added a layer of complication, when courts stopped operating and flights were grounded for months.
“COVID did impact the spike in child abductions because, in some cases, parents took advantage of the circumstances created by the pandemic,” he said.
“I’ve had clients leaving to the UK to visit their family but staying there and blaming it on the risk of travelling during the pandemic.
“I’ve seen many parents break down because their children were taken from them"- Lawyer Robert Thake
“As time passes, the children are setting up roots in that country – like going to school – making the return process more complicated,” he added.
'Make child abduction a crime'
The increase in cases has spurred Thake to call for child abduction to become a crime in Malta. According to the Maltese Central Authority, which handles child abduction cases, 104 children were reported to have been abducted and taken out of Malta illegally over the past 10 years.
The number peaked in 2020.
“Taking a child away from a parent and forcing a child and a parent out of contact should be a crime. Making it a crime would, at least, act as a deterrent. This sort of illegal removal is very cruel on both the child and on the left-behind parent,” said Thake.
Lawyer Robert Thake, who specialises in abduction cases“I’ve seen many parents break down because their children were taken from them,” he said.
Thake had 12 enquiries and cases and this January has already dealt with two cases.
He had clients seeking the return of their children from the UK, France, Libya, Ukraine, Sweden, North Macedonia, Germany and Guatemala. In most of the cases, the children were aged under 10 and were taken out of Malta by their foreign mother.
What does the law say?
Under Maltese civil law, a child must have the written consent of both parents to be able to leave the island.
However, if one parent takes the child out of the country without the permission of the left-behind parent, this constitutes a breach of civil law and not criminal law. This means it is not a punishable crime.
A recent amendment to the Criminal Code makes it a crime to remove a child from Malta if this is in breach of a court order or a care order. While Thake believes that this is a positive amendment, he does not think it goes far enough.
“It’s an excellent amendment but it falls short. Abductions often happen when the court isn’t involved. Sometimes the parties are still in a relationship,” he said.
He said cases are usually divided into two general categories: illegal removal and illegal retention.
Illegal removal is what is commonly referred to as “abduction” and is when a child is removed from the child’s country of habitual residence without the consent of the other parent.
On the other hand, illegal retention is when a parent is given consent to travel for a defined period but refuses to return at the expiration of the given time period.
Mother stayed abroad, another disappeared
In one recent case, Thake said, a Maltese father gave his consent for the child to travel with the mother to her home country in order to spend an extended period of time with her family since the mother said she was feeling homesick.
However, after several months, and following repeated requests by the father for information, the mother declared that she had no intention of returning to Malta with the child after all.
In another recent case, the parents of a Maltese child travelled to France together as a family. However, while abroad, the mother packed the child’s belongings and passport and disappeared with the child and refused to disclose their location.
Thake explained that, in such cases, a left-behind parent has one year, from the date when the child leaves the country, to start proceedings under the Hague Convention on the Civil Aspects of International Child Abduction.
This is done by applying to the Maltese Central Authority for assistance.
Once engaged, the Maltese Central Authority communicates with the central authority in the other country where a lawyer is appointed to start civil proceedings to return the child to Malta.
The court in that country then decides whether to issue a return order or not.
Things get complicated when the whereabouts of the child are unknown or when the child is illegally removed to or retained in a country that is not a signatory of the Hague Convention on Child Abduction.