Maltese law on taking children abroad during separation/divorce proceedings

by , on Feb 02, 2022 10:53:57 AM

Can I take my child abroad if I am undergoing separation/divorce proceedings?

In many situations after parents divorce, the child ends up in the most vulnerable position. Sometimes such parents violate the court order by taking the child and going to another state. Here a question arises: “Is this strongly prohibited under Maltese law?”

Maltese law says that a warrant can be given to the person or persons who may have the legal or actual custody of the minor enjoining them not to take, or allow anybody else to take the child outside Malta. Although one person cannot be deprived of his right to travel outside Malta, this does not apply to taking minors outside of the territory of the country. The purpose of this measure is to maintain a healthy parent-child relationship and protect the needs and interests of the child. Such recourse is used in cases where there is a risk that one of the parents can leave the country with the child. The warrant can be also served on the Commissioner of Police enjoining him not to allow the minor in question to leave Malta, as well as the officer charged with the issue of passports enjoining him not to issue and deliver any passport in respect of the minor and include child’s name in the passport of the child’s legal representatives or other persons. The defendant is given a short period of time to file a reply and both parties are allowed to testify.

In a recent case, rendered by the Family Court in Malta, a minor’s father filed a warrant of prohibitory injunction against the mother or any other person (which included him) not to travel outside Malta with the child. The mother in this case came from a country outside the EU which is a signatory to the 1980 Hague Convention on the Civil Aspects of the Child Abduction.

According to the father, the mother was about to abscond to her country of origin, while she denied it, and counterclaimed that she had already established herself professionally and socially in Malta. The applicant also noted that the child asked for a passport for her birthday. The father was generally worried that he had no control over whether the minor would be issued a foreign passport or different type of a travel document which would make it easier for the defendant to disappear with the child.

The mother, on the other hand, stated that it is her general wish to travel and for the child to have a good relationship with her side of the family. She also confirmed that she was contractually bound to remain in Malta for the next five years because of her work. The mother also said that she feels uncomfortable if her child, who does not have the vaccine, also has to take COVID-19 SWAB tests to go abroad.

As noted by the Court, the mother’s country of origin, although being a member of the 1980 Hague Convention on the Civil Aspects of the Child Abduction, had shown numerous court delays which had a negative impact on several cases. Thus, if the mother goes back to her home country, there is a possibility that such delays may occur again. In addition, this country is currently a ‘level 4 country’ and thus COVID-19 poses a significant threat even for fully vaccinated people who decide to go there as they may not only contract the virus but also spread its variants.

As a final decision, the court prohibited anyone from taking the child out of the Maltese islands, while the minor’s passport shall remain deposited under the authority of the same court.

Author: Stephanie Marinova