This case concerned a request by the plaintiff father to be granted exclusive custody of his child.

The facts of the case were as follows:

The parties were married according to the Islamic Rite at a mosque in Malta and had a son together. The defendant eventually left the home they shared together. The parties were granted joint custody of their son. The plaintiff feared that the defendant being of Moroccan nationality would leave Malta given that her entire family lived in Morocco. Moreover, the defendant had no work permit nor was she entitled to freedom of movement and therefore, the plaintiff was concerned that the defendant would leave Malta to Morocco or another Arab country, since she would surely take their son with her. He held that if the defendant would be granted care and custody over their son, this would seriously prejudice his rights as a father since if the defendant departed from Malta, it would be impossible for the plaintiff to bring his son back to Malta. The plaintiff therefore requested the court to grant him exclusive custody of his son.

The defendant held, amongst other things, that the plaintiff’s requests were unfounded in fact and in terms of law. She claimed that it was inconceivable that she be denied the care and custody rights over her child simply because she was not of Maltese nationality. Furthermore, she claimed that the plaintiff’s request be examined exclusively in the light of what was in the best interests of the child and not in the interests of the plaintiff father. In her opinion, there was no reason why she should lose custody of her child who lived a happy life with her and it was therefore certainly not in her son’s best interests to be separated from his mother. She also informed the court that she had no intention of leaving Malta where she has been living for the past 15 years, particularly since she had her two children in Malta who were six, having been born in Malta whose lives were established here. She therefore claimed that the plaintiff’s claims of fear of her leaving Malta were totally fabricated and unfounded. There was no doubt that she wanted to provide the best quality of life for her children and she had no intention of destabilising them.

The defendant furthermore claimed that when her relationship with the plaintiff came to an end, she had applied to the Maltese authorities and obtained a residence permit to be able to stay in Malta. Apart from the fact that she did not have a work permit being irrelevant, the defendant explained that she was a housewife before the parties split up and therefore she had not required a work permit.

The defendant also filed a counterclaim against the plaintiff holding that he had failed to provide maintenance with respect to his son since they had ended their relationship and she was therefore supporting their son alone. On this basis, the defendant requested the court to grant her exclusive custody of their son while allowing the defendant access.

The Civil Court (Family Section) on 22 May 2009 ruled in favour of the defendant and granted her the care and custody of her son while providing for visitation rights to the plaintiff and ordering that he pay the maintenance established by the court.

The court inter alia held that there was no doubt that it was in the best interests of the minor for his mother to retain care and custody rights in his respect.

The plaintiff appealed the judgement of the Court of First Instance

The court considered the requests and claims put forward. It noted that the likelihood that the defendant would leave Malta was minimal particularly since she had a permit to live in Malta after living here for 15 years and also since, apart from her son she also had a daughter who was already in senior school in Malta and who could only speak Maltese and English. Furthermore, the defendant herself admitted that her children had a better future in Malta and that she would not consider uprooting her children, particularly her daughter and going to Morocco where lessons at school are only delivered in Arabic or French.

The court agreed with the Court of First Instance in its trust in the defendant. However the Court of Appeal acknowledged the fact that since anything in life is possible, there was nothing stopping the defendant from suddenly deciding to leave Malta. The Court of Appeal therefore held that some sort of control was indeed necessary.

The Court of Appeal therefore upheld the plaintiff’s appeal in part by confirming the judgement of the Civil Court (Family Section) yet ordering that the minor should not be permitted to leave Malta except with the express consent of both parties or with the authority of the competent court and that every decision that could affect the health, education or religious upbringing of the child be decided upon jointly by the parties or by the competent court in case the parties cannot be reached. The Court of Appeal ordered that a copy of this judgement be delivered to the Principal Immigration Officer and the Passport Officer.