Issue link: https://maltatoday.uberflip.com/i/1206972
maltatoday | SUNDAY • 2 FEBRUARY 2020 17 LAW & PLANNING Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates EU legislation has interpreted the right to family life in its widest sense and al- lows Courts to examine whether it is in the children's best interest to continue to have a relationship with their grand- parents. This was decided on 28 Janu- ary 2020 by Mr Justice Anthony Vella in CM & RB vs SM & MM. The plaintiffs are Italian and the defend- ant, their daughter, is married to a Maltese national. The defendants have a daugh- ter who is three years old. The defend- ants lived with the plaintiffs in Italy for a number of years. After the birth of their grand-daughter they developed a strong bond with her until 2017, when their daughter, husband and grand-daughter returned to Malta. From then on, they were cut off from their grand-daughter, even when they travelled to Malta. They argued that although the parents have the primary care and custody of the minor child, there is no legal justifica- tion for the grandchildren not to have a healthy relationship with their grandpar- ents. This was established in European Court for Human Rights in Neli Voch- eve vs Georgios Babanarakis decided on 31 May 2018. The Court held: "It must be noted that 'rights of access' are de- fined broadly, encompassing in particular the right to take a child to a place other than that child's habitual residence for a limited period of time. …That definition does not impose any limitation in regard to the persons who may benefit from those rights of access. …Regulation No. 2201/2003 does not expressly exclude a request made by grandparents for rights of access to their grandchildren from coming within the scope of that regula- tion." The plaintiffs asked the Court to allow them to have access to their grand-daugh- ter by establishing days and time when this can take place. The defendants filed a statement of defence in which they held that there were similar proceedings in It- aly which are now final and therefore, this case cannot be heard. They claimed also that the plaintiffs do not have a juridical interest in this case, since the law does not give a legal remedy. Furthermore, the defendants pleaded what the plaintiffs requested in a threat to public order be- cause it would establish a new norm for grandparents to have right of access, a precedent in our legal system. Mr Justice Vella considered these pleas. With regard to whether the case is res judicata (final), the Court noted that the Italian Court did not enter into the mer- its of the case but limited itself to lack of jurisdiction since the child was in Malta. As to whether the grandparents have a juridical interest, the defendants accept- ed that the plaintiffs did have an emo- tional and general interest in seeing their grand-daughter but all the same they did not have a juridical interest emanating from any law. The plaintiffs did not quote from any article of the law which allows them to file an action with these claims. On the other hand, the plaintiffs held that their right to file a claim for access is derived from case-law of the European Convention of Human Rights. This area was described by the European Court of Human Rights in Valeheve vs Barlanakis decided on 31 August 2018, as a grey area. Even though this is a 'grey area', it does not mean that Courts should not take in- to consideration the developments that occur in society and that family ties may give rise to uncertainties concerning the existence of rights of access by persons other than the parents, such as grandpar- ents. In Mareks vs Belgium, decided on 13 June 1979, the European Court of Human Rights held that "family life" includes at least the ties between near relatives, for instance those between grandparents and grandchildren since such relatives may play a considerable part in family life. Article 8 of the European Convention of Human Rights provides "Everyone has the right to respect for his private and family life, his home and his corre- spondence". This extends to family rela- tion-ships such as between grandparents and grandchildren. Neil Valcheva -v- Georgios Babanarkis, decided by the Court of Justice of the Eu- ropean Court on 31 May 2018, interpret- ed Regulation 2201/2003, which is known as the Brussels IIa. The Court held that "It must be noted that the right of access' are defined broadly, encompassing in par- ticular the right to take a child to a place other than that child's habitual residence for a limited period of time". The right of grandparents is not contra- ry to this Regulation. The Court pointed out that this Regulation takes precedence over domestic law. Maltese law does not contemplate access rights of grandpar- ents and therefore, the interpretation giv- en to the Regulation should prevail. The Court then moved to reject the plea. As to whether this case ran contrary to public order, the Court held once the European Courts have ruled in favour of Courts considering whether grandpar- ents having access to minor grandchil- dren, then those judgements form part of Maltese case-law also. Regulation 2201/2003 is part of Mal- tese legislation and as such, the Court has to allow grandparents to file actions as the plaintiffs have done. The supreme principle applied by all Courts is that the best interests of the children prevail and therefore one must see whether access of grandparents to minor children is in their best interest. Therefore, any decision that is taken by the Court, has to have the principle that the interest of the children prevail. This is reflected in the Convention on Contact concerning Children and Convention on the Rights of the Child. Article 149 of the Civil Code allows the Court to give any direction as regard to the person or the property of the minor. Therefore, the right of access of grandparents is not au- tomatic and must be given in the best in- terest of the child. This plea was also rejected. The Court ordered that the case continue to be heard on the merits. AT issue was a proposal for a 118 room four-star hotel in Pieta, which would have replaced a number of houses sit- uated along the Marina seafront, oppo- site the Floriana Bastions. Following publication, the proposal drew the attention of a number of objec- tors who warned that the interventions would jeopardise the architectural and historical value of the nearby Giardino Zammitello and Villa Frere. One of the houses earmarked for demolition was al- so scheduled. The objectors also pointed out that 'scale and massing of the project would impact on the views of St Luke's hospital and the Pieta Primary School'. The proposed hotel was to have 118 bed- rooms and employ 40 people. According to policy, 34 parking spaces were required while 31 spaces were to be provided on site. The shortfall could thus be compen- sated by way of a financial compensation towards the Urban Improvement Fund. Still, the central issue was clearly the building envelope. To begin with, the ar- ea could, in principle, be developed into five floors with a semi-basement although parts of the site 'earmarked for its cultural importance' had to be assessed in light of the surrounding context. Moreover, Local plan policy NHTO01 allows hotels to exceed one floor over and above what is normally permitted in the Local Plan. On top of that, the more recent Height Adjustment Policy allows four-star hotels to have 'two additional floors over and above the height limita- tion permitted in the Local Plan'. This im- plied that the building in question could theoretically reach a height of 35.8 me- tres, equivalent to '8 floors and semi-base- ment'. Having said this, the scale of the propos- al was revised during the course of assess- ment, so much so that the case officer felt that this should be specifically pointed out in the application report. Moreover, the officer underlined that the building would not encroach on the so called 'giardino chiuso' as originally envisaged. More so, the facades of the historic and scheduled buildings would also be preserved. In fact, it was the case officer himself who said that the Superintendent of Cultural Heritage had withdrawn his objections to the 'the latest submissions' subject to there being monitoring if the application were to be approved. Before that, the case officer report had noted that the Superintendence was con- cerned about 'the overall heights and vol- umes' and recommended 'a lowering of the overall height by at least one floor' to- gether with 'relocating the penthouses to a central position on the building mass'. From a policy standpoint, the case of- ficer report noted that the site lies within a Residential Area. But even so, the situ- ation on the ground was that 'a number of office blocks had been approved in the immediate context'. For this reason, the Planning Directorate considered that the site was considered suitable for a hotel. But even so, the Authority thought that the proposal would still dominate the views of St Luke's Hospital, 'totally di- vorcing the gardens of Villa Frere from any visual link to the sea'. Against this background, the propos- al was rejected after the Planning Board thought that it was in breach of Urban Objective 2 which seeks to improve the townscape and environment in historic cores and their setting. Grandparents have a juridical interest to request access to grandchildren Material considerations come into play LAW PLANNING Dr Robert Musumeci is an advocate and a perit having an interest in development planning law