A nine-month-old baby remains stateless due to a legal loophole that is forcing the mother to choose between making a false declaration and registering the child under the name of her abusive ex-husband, or not registering the infant.

The legal loophole – that is impacting the registration of other babies – was flagged by a Maltese mother who has been battling to register her child under the rightful biological father but is being blocked from doing so.

Maltese law presumes that a child conceived in wedlock is the child of both spouses. Lara*, who has been estranged from her husband for four years, had a baby from her partner nine months ago. By then she had not yet obtained a separation as her ex-husband refused to sign the required documentation.

Despite a DNA test that proves the mother’s partner is the infant’s biological father, she is effectively being held hostage by her ex-husband as a result of the law.

Since she refuses to register her child on a man who is not his father, the infant does not exist in the eyes of the law and cannot receive state medical care or childcare services. This has meant that Lara also lost her job in the meantime.

Her case is not the first, and it highlights a gaping hole in the law. The legal loophole blocking the registration of biological fathers as the rightful parents of children born to mothers who are legally still married to another man has been flagged by the Children’s Commissioner before.

According to the commissioner, as well as midwives and lawyers who spoke to Times of Malta, they encounter several other cases like Lara’s.

“The Office of the Commissioner for Children is aware of difficulties encountered with regards to registering the

biological father of a child and not the person a mother is legally married to or hasn’t been legally separated, divorced or annulled from for the time stipulated by law.

“The office has, on various occasions, advocated for provisions to be amended to address such difficulties… Apart from such provisions, emphasis also needs to be placed on the right of a child to be registered at birth and all stakeholders, including parents, should therefore act in the best interests of the child,” a spokesperson for the office said.

‘I was speechless’

The birth of a child was meant to be a positive chapter for Lara who was rebuilding her life with her partner after an abusive marriage.

“When I gave birth and we went to Identity Malta’s office at Mater Dei, we were told that our child will be registered under my ex,” she told Times of Malta.

“I initially thought it was just a mistake, and I said ‘no, no, the child is my partner’s, who has a different surname from my former husband’. But the clerk told me that’s the system: we need to register the child on my ex and then request a change in paternity at court.

“I was shocked. Speechless. Devastated. I refused to register my child under a person I was a victim of until four years ago. The system that should be protecting me was not only throwing me back at the mercy of my abuser but was this time also dragging an innocent child into the ordeal, linking them to this man. It is also unfair on my partner to be refused his right to be recognised as the actual father of his own child.”

Lara’s marriage to her ex-husband had been annulled by the church before the birth of her child, and she was also in possession of a separation of assets.

Despite multiple attempts to finalise separation proceedings, her ex never cooperated and instead requested money from her to sign the paperwork.

Once she left the hospital with her newborn, Lara and her family knocked on the doors of several authorities: from the Office of the Commissioner for Children to the Ombudsman, private law firms  and government ministries, to inquire about their legal standing.

“To this day, everyone is telling us that according to the law, we need to register the child on my ex, and then request a change in paternity. I’m being forced to live a lie: register the child on my ex when my child is not linked to him in any way, while depriving my partner from his right to fatherhood.”

Her biggest heartache remains the fact that “my baby does not exist”.

“We cannot baptise our child, travel or enrol them for childcare. I have, therefore, not been able to return to work. It is extremely scary that we cannot take our child to hospital, or abroad, if, God forbid, something was to happen to them.”

Re-victimising domestic violence victims

Over the summer, Lara was eventually informed that, together with her ex, she could declare, at the court of revision of notarial acts, that the child was biologically her partner’s.

However, she had her doubts that her former husband would cooperate and recalls that the first thing he did was ask for a sum of money, and, consequently, refused to turn up for the sitting.

Lara eventually managed to obtain a second appointment for another sitting. Her ex did turn up and according to documents seen by Times of Malta, he swore the child was not his, and that four years ago he had left the home where Lara lived.

I’m being forced to live a lie

Lara’s current partner also swore the child was his, something that has also been proven by DNA tests.

However, when her ex was asked to sign the court transcription of their declaration, done under oath, her former husband turned on Lara, asking her for money. He refused to sign the paperwork and left the court building.

“My partner and I were left there, mouth open in disbelief. We were told that despite our declaration under oath, the procedure could not be completed.”

The ordeal is traumatic for the couple, with Lara often finding herself wading terrible memories she had managed to put behind her.

“Years ago, in supporting this man and trying to save the marriage, I had forgotten all about myself. I didn’t realise that in the meantime, I was broken and I had reached such a low.

“Four years ago, I won my life back. Who would have thought this person would reappear in my life, and I’m again forced under his control during what is meant to be the best time of my life?”

“It’s like déjà-vu. For four years, this man no longer lived in my thoughts. Nowadays, we live under his ‘mercy’.”

She hopes her pleas do not fall on deaf ears and legislators take action so that no other parent will have to go through what she and her partner are experiencing.  

A law that ignores social reality

Under Maltese law, a newborn must be registered with the public registry within 15 days of birth. The law presumes that a child conceived in wedlock is the child of the spouses. It says that: “A child born not before one hundred and eighty days from the celebration of the marriage, nor after three hundred days from the dissolution or annulment of the marriage, shall be deemed to have been conceived in wedlock.”

The law allows for the name of the father registered to be changed following civil court procedures. But it does not allow for the biological father – in such cases – to be immediately registered as the father.

Judge Emeritus Giovanni Bonello said this was not the first time this issue was raised. Over the years, the European Court of Human Rights has established that the child has an equal right to establish his true biological parents and to have this recognised by the state.

In the landmark 1994 judgment ‘Kroon and Others vs The Netherlands’, the European Court had stated that respect for family life required that biological and social reality should prevail over a legal presumption.

Kroon had a child whose biological father was not her husband. The national law did not allow the mother to register the child’s real father. The court noted that between the child and the father there existed a bond amounting to family life.

Since the state failed to ensure the possibility of the father to be legally recognised as the child’s father, the state had not fulfilled its obligation to allow complete legal family ties to be formed

between the father and his child as expeditiously as possible. Therefore, the court found a violation of the right to private and family life.

This was the same human right breached in a case that concerned a Maltese family that was also taken to The European Court of Human Rights and decided in 2006. In this case, there was a different perspective to the same legal issue – that of the estranged husband who was not the father but forced to be registered as so without being allowed to contest it.

The father, a Maltese businessman, had suspected that his wife was having an affair. The couple separated and soon after a child was born in 1967.

The businessman was registered as the father. He wanted to contest it with a DNA test but, back then, the law did not allow it. This was addressed through a legal amendment some years later. 

Years later, in 1993, the DNA test was carried out and established he was not the father. He claimed the law was in breach of several of his fundamental human rights and the court agreed there was a breach of his right to respect for family life, among others.

It found that the husband had the right to establish true biological parenthood, notwithstanding the legal fictions derived from presumptions in the Civil Code. 

*Not her real name.