Posted Monday, August 12, 2019
Abduction cases against parent based on UN Convention procedurally defective

The United Nations Convention on the Rights of the Child binds States to observe the obligations set forth in its articles, but not individuals, especially not private individuals such as parties to a case. This was stated by the Civil Court (Family Section), presided by Justice Hon. Padovani Grima in the case of AB vs CD on the 3rd of July 2019.

The Court heard the pleas by the plaintiff, a Chinese citizen who married the respondent, a Ukrainian national, in Beijing in 2008. In 2013 their daughter, who was the subject of the lawsuit, was born in America and obtained US citizenship. After living in Malta for a few years and purchasing a property, the parties moved to China in 2011, where they lived close to the child’s maternal grandparents and eventually had another child who presently still resides in China.

In April 2018, the respondent showed interest in travelling with the child in question and the applicant agreed because due to her American citizenship, the child needed to re-apply for a Family Reunification Visa. The applicant alleged that the respondent stated he would apply for her Visa in Malta and booked return flights from Malta to Beijing from July to August 2018.

The applicant stated that in a vile and premeditated act, the respondent not only did not return the child to China, but also, went to a notary to authorise his sister to take the child to Ukraine without the applicant’s consent. The applicant emotionally stated how even on the child’s birthday, she was separated from her and had little to no communication with her daughter.

The applicant explained how once the child returned to Malta in October 2018, the applicant made arrangements to travel here in order to take her child back to China. It was stated that the child looked ill and neglected, and although the applicant primarily resided with the respondent in their property, she eventually had no choice but to move to a shelter with her daughter. A warrant of prohibitory injunction was also filed in order to prevent the travelling of her daughter with any of the parties until the decision of the Court on her future.

Applicant asked the Court to declare that the respondent was responsible for the abduction of their daughter, and this to the detriment of the rights afforded by the United Nations Convention on the Rights of the Child. The Court was also requested to release the child’s passport to the mother in order for her to return to China with her. She stated that her daughter was traumatised by the events that had unfolded, and that she needed to return to her family.

The Court also heard the respondents’ pleas, wherein it was alleged that the best interest of the child was indeed for her to stay with her father in Malta. It was claimed that not only was the applicant mentally ill, but that she also had physically abused her daughter. Furthermore, it was held that it was the applicant who had abducted the minor when she fled with her daughter to a shelter. In fact, her father only presently has supervised visitations with his daughter through the services of Agenzija Appogg.

The respondent pleaded with the Court to consider that should his daughter go back to China he will not be able to see her, since he had not seen his younger daughter in a long time because her mother kept her in China. It was also held that both Parties had not agreed on whether or not the child was to return to China before the trip to Malta, and that the respondent felt that the minor would be educated at a higher level here and that she should be entrusted to the care and custody of her father because of the volatile and aggressive nature of her mother.

The Court then heard a number of witnesses and experts that shed light on the case. The Court heard from Social Workers and Psychologists that held that applicant seemed to have a good relationship with her daughter and that there was no evidence of physical abuse. Indeed, on a visit to Mater Dei by the respondent and his daughter, doctors discharged the minor stating that there was no sign of physical abuse on the child. Concern was shown however for the child and her involvement with her parents’ conflict as she frequently spoke about sensitive details of the case.

The Court stated that the Convention on the Rights of the Child only pertains to States, and not individuals.  It is for this reason that the Court could not take cognizance of the applicants’ claim as the law only relates State’s duty to ensure that the law and procedure relative to issues regarding children are consistent with its obligation under the Convention. This aside, the Court also held that the applicant’s claims were premature since both parents have care and custody of the child. Until a decision or agreement is made regarding the primary residence and domicile of the child as well as the custody issues, the Court must reject the applicant’s claim. Both parties were ordered to pay their own expenses.

 
Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates


 
Share
© MIFSUD MIFSUD. All Rights Reserved.
All Articles - Sitemap - Terms Of Use - Privacy Policy