The First Hall of the Civil Court in its judgement (application number 1057/2013) of 14 March, 2017 held that it was not the competent Court to revoke a 1981 adoption. This was held in a court case presided by Mr Justice Silvio Meli, between a son and his natural and adoptive parents and the Director of Public Registry.
The son explained in his application that he was born in the UK in 1964 and in his birth certification there was indicated that the father was unknown. His maternal grandparents adopted him in 1981. His natural mother gave birth to him when she was 17 years of age and therefore, still a minor and was unmarried and she was forced to give up her son for adoption to her own parents. His natural father was not consulted about the adoption and did not give his consent. His natural mother told him who his father was and he spent only a few days with him until he died. In view of this the son was asking the court to disclose the adoption proceedings file and to revoke the adoption decree of 1981 and therefore, amend his birth certificate to show the names of his natural parents.
The Director of Public Registry contested this by filing a statement of defence. The Public Registry stated that all that was required in 1981 was the consent of the mother and according to Article 115(4) (a) of the Civil Code the father’s consent is required if the father recognised his son, contributed to his maintenance and showed some interest in the child.
The Public Registry argued that an adoption decree may be revoked if the mother was not aware of the adoption proceedings and if she never gave her consent. It was also argued that the birth certificate could not be attacked by the court since it is a birth certificate containing the details of the adoptive parents.
Mr Justice Meli went through the evidence of the case, where it was established that the son’s parents lived in the UK and returned to Malta when he was a year and a half. The mother was apprehensive to return to Malta because of her parents. When the son returned he lived with his grandparents and thought that his mother was his sister. The grandparents adopted him and became his legal parents. The son claimed that his natural mother was forced to give him up for adoption and his father was not consulted. The only contact between the father and son was for a few months, after the son’s birth.
The Court then considered whether the First Hall of Civil Court is competent to hear this case. The Court quoted from Subsidiary Legislation 12.19 which states that the Civil Law of Voluntary Jurisdiction should take care of adoption issues. The Court concluded that the First Hall of the Civil Court is not competent to hear this case.
The Court continued to consider the other legal issues raised in the case and moved on to whether the father’s consent was in fact required. Art 115(4)(a) of the Civil Code requires that the father is to be heard in adoption proceedings, however, the father must recognise the child and the Court must be satisfied that he showed interest in the child and paid maintenance.
From the birth certificate and according to the records of the case the father never recognised his son formally and there was no evidence that before the adoption the father contributed to the maintenance or showed interest. Therefore, the Court was not bound in 1981 to hear the father in the adoption proceedings.
The Court quoted a previous judgement Emanuel Cachia -v- Director of Social Security decided on 12 May, 2003 which stated that the person who must decide a court action has to do so on the balance of probabilities derived from his moral conviction. Mr Justice Meli pointed out that the natural mother had lived with her son during his childhood, as his sister, and she herself kept this as a secret. This should indicate her consent for the adoption to take place. Furthermore, it is the Court which has to verify that the mother’s consent is being given voluntarily before the adoption.
The Court then moved to dismiss the son’s requests.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
This article may also be accessed on Malta Today.
For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.
