This was an appeal of a judgement delivered by the Family Section of the Civil Court in June 2007. X appealed from the judgement in favour of the director ordering the return of X’s child back to the United States of America.

The facts of the case were as follows:

X was married to Y and together they had three children. A was one of these children born in 1993 in the US. X and Y’s relationship started deteriorating and in July 2006, X moved to Malta bringing with him two of his children, A being one of them. It seemed that Y did not object to this at the time since she still had access to the children. However, as time went by, their relationship went from bad to worse so much that divorce became a possibility.

The children found themselves in the middle of their parents’ feud. Y initiated proceedings in conformity with the Child Abduction and Custody Act (Chapter 410 – Laws of Malta) authorising the director to undertake the relevant procedures to retrieve her child. Once the director found the child and his father, the procedure began. This Act allowed the ratification of two international Conventions, one being the Convention on the Civil Aspects of International Child Abduction.

According to Article 3 of the First Schedule of this Act, “the removal or the retention of a child is to be considered wrongful where

“(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and

“(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”

There was no doubt that the Act was applicable to A since when he was brought to Malta, both X and Y had custody rights over him.

The Court felt that the only defence X had was that A had told the Court that he was happy in Malta and seemed to be doing very well at school.

Article 13 of the First Schedule provides that:

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

“(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

“The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”

X told the Court of his intention to take the children with him when he eventually moved to the Caribbean.

The aim of the Convention in question was precisely to stop parents from taking the law into their hands. According to a UK judge, “[t]he general principle is that in the ordinary way any decision relating to the custody of the children is best decided in the jurisdiction in which they have normally resided. The general principle is an application of wider and basic principle that the child’s welfare is the first and paramount consideration.”

The Court highlighted the fact that although the law mentions the best interests of the child, this is not tantamount to what the child wants. If this were so, Courts would be unnecessary to determine custody cases. One would merely need to ask the child.

For these reasons, the Court of First Instance decided that although there was no doubt that X was taking care of A well, the child’s care and custody had to be determined by the Court of Florida where he lived until July 2006. The Court hence ordered that A be returned to the US.

X appealed particularly on the grounds that although he admitted that he had unlawfully removed A from the US, he failed to agree that he had unlawfully retained him due to the fact that his wife had come to Malta in November 2006 and had visited the school the children were attending. In his appeal application, X stated that Y had approved of her children’s lives here. It was only when she decided to contest the state of affairs that she resorted to the Convention. X claimed that this surely could not have been the scope of this Convention. Y did not take advantage of the procedures outlined in the Convention. It was only once their marriage got sour that she resorted to the Convention, at which point her children had already settled down in Malta. X further claimed that returning A to the US could have detrimental effects since there was proof that his mother suffered from clinical depression. He claimed that it was in his child’s best interest that he stays in Malta.

The Court of Appeal examined all the evidence and took into consideration the fact that despite both parents having joint custody, X would only allow Y limited contact with her children and openly talked about his plan to move to the Caribbean.

The Court of Appeal stated that due to the above, it could be stated that he had illicitly retained his child in Malta for the purposes of Article 3 of the Convention. The Court referred to emails to prove the occurrences and hostilities. Regarding the plea that A’s return would be risky, the Court of Appeal referred to a Scottish judgement P.W. v. A.L. or W. (June 2007) where the Court stated: “If the court is satisfied that the child objects to being returned, has attained an age and suitable degree of maturity, and that it is appropriate to take account of his views, it then has to decide whether it is prepared to exercise its discretion to refuse to order the child’s return… The child’s views are never determinative: the final decision as to return must be the court’s own… A balancing exercise requires to be carried out, and one of the factors which are to be placed in the balance in favour of return is the spirit and clear purpose of the Convention which is to leave it to the Court of habitual residence to resolve the parental dispute.”

On the basis of the above, the Court of Appeal confirmed the judgement of the Court of First Instance ordering the return of A to the US.