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MALTATODAY 4 August 2019

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maltatoday 11 | SUNDAY • 4 AUGUST 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application for the 'construction of stables' in a field located outside the development zone of Zurrieq. Following a negative recommenda- tion from the Planning Directorate, the request was also turned down by the Planning Commission after it found that the proposed interven- tions failed to meet the policy criteria. In particular, the Commission high- lighted that the proposed works, namely the stables and the ancillary facilities, would occupy an a floor ar- ea in excess of that allowed by policy. Furthermore, it was maintained that the stables were not constructed in timber as required by policy. To complicate matters, the Com- mission also noted that a wall was built to demarcate the site in ques- tion without applicant having sought prior permission. Subsequently to the decision, appli- cant lodged an appeal before the En- vironment and Planning Review Tri- bunal, insisting that the Commission had acted unreasonably. In his rikors (appeal application), applicant (now, appellant) argued that the initial design proposal was undertaken prior to the rural policy being updated in 2014. Having said that, applicant signaled that he had submitted new designs prior to the decision, which designs were alleg- edly ignored. As to the illegal dividing wall, ap- plicant insisted that he had no con- nection whatsoever in that respect. Nevertheless, appellant stessed that the said wall had been in existence since 2008. Moreover, applicant pointed out that the said wall, which the Authority claimed to be illegal, was made of rubble material. In this context, reference was made to Legal Notice 160 of 1997 which seeks to protect rubble walls and en- courage their upkeep so much so that no planning permit is needed to carry out maintenance works thereto. For this reason, appellant contend- ed that the Authority should seek to protect the said wall rather than or- der its removal. In its assessment, the Tribunal con- firmed that the Commission had re- ceived a revised set of plans showing stables with a floor area which was less than what was permitted. Moreover, the Tribunal noted that during the pendency of proceedings, a permit was also issued for the sanc- tioning of the boundary wall. Having said that, the Tribunal asserted that appellant had submitted an outline application, meaning that the design of the stables was not as yet deter- mined. Against this background, the Au- thority was ordered to issue the out- line permit subject to the design of the stables being held as a reserved matter. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Stables approved by Tribunal following revised drawings THE United Nations Convention on the Rights of the Child binds States to observe the obligations set forth in its articles, but not individuals, es- pecially 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 daugh- ter, 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 be- cause due to her American citizenship, the child needed to re-apply for a Fam- ily 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 al- though 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 trav- elling 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 Con- vention 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 trauma- tised by the events that had unfolded, and that she needed to return to her family. The Court also heard the respond- ents' 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 pres- ently 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 be- cause 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 phys- ical abuse. Indeed, on a visit to Mater Dei by the respondent and his daugh- ter, doctors discharged the minor stat- ing that there was no sign of physical abuse on the child. Concern was shown however for the child and her involve- ment with her parents' conflict as she frequently spoke about sensitive details of the case. The Court stated that the Conven- tion 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 du- ty 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 regard- ing the primary residence and domicile of the child as well as the custody is- sues, the Court must reject the appli- cant's claim. Both parties were ordered to pay their own expenses. Abduction cases against parent based on UN Convention procedurally defective LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates

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