Issue link: https://maltatoday.uberflip.com/i/1480753
maltatoday | SUNDAY • 2 OCTOBER2022 15 LAW CLASSIFIEDS CARE and custody is not based solely on who is the better par- ent, but the court must see the best interest of the child in the widest sense. This was decided by the Civil Court (Family Sec- tion) presided by Mr Justice An- thony Vella in AB -v- CD. The judgement was delivered on 27 September 2022. The plaintiff, the father of a 9 year old boy, filed an applica- tion against the mother asking the Court to grant him care and custody of the child and be al- lowed to take his son with him to live in Canada. In the appli- cation her explained the parties to the case were living in Malta since 2014. In 2016, his wife, the mother, fled to the Czech Republic with the minor child. The Parties then returned the next year and the child attend- ed a primary school. In 2018, the Parties separated by means of a contract and the father was granted care and custody of the child and that the child's habitual residence was to be Malta. In 2020, the mother fled again with the child to the Czech Republic without the father's consent. The Czech courts ordered the child's return to Malta. The Mother did not return with the child and the Czech Courts had to remove the child from the mother, but she moved to Austria. The fa- ther then took the child from Austria to Canada. The father then returned the child to Mal- ta. The father explained that he would like to return to Canada and live together with his son. The mother filed a state- ment of defence, explaining that there does not exist the legal grounds for the father to be granted exclusive care and custody. She claimed that the father has a criminal record and has a problem of alcohol and drugs. She accused the fa- ther of abducting the child to Canada. The Court analysed the evi- dence where the parties were married in 2010 in Canada and the minor child was born in 2012 in Canada. The family moved to Malta, but they sep- arated in Malta in 2018. Their son was abducted by the par- ties. The father showed how the mother took the minor child out of Malta after a sepa- ration contract signed in 2018. In their affidavits the Parties accused each other of various allegations. The Court com- mented that the mother failed to that the father had a crimi- nal record or had a violent be- haviour. The father proved that there were two occasions where the mother took the child with- out his consent and the court ordered that their son be re- turned to Malta. When he took their son to Canada he volun- tarily returned to Malta. The Court commented that once the parents could not de- cide on where the minor child was to live, then it was up to the Court to take this deci- sion. The Court quoted from a publication "A Judge's guide – Making Child Centred De- cision in Custody Cases" pub- lished by the American Bar As- sociation. The Court held that it had to see whether the relocation of the child was to have a negative impact on the child's develop- ment. The age between 8-10 is described as a critical age of industry and productivity, as there is need of a supportive learning environment at home as the child faces increasing academic challenges. The pub- lication lists a number of com- peting interests when there is a relocation of the child. These are: • The child;s right to sta- bility and meaningful regular contact with both parents after a divorce. • The custodial parent's right to move on with his life after divorce eithout the interference and po- tential costly litigation • The noncustodial par- ent's right to continue to have a meaningful con- tact with his or her child after divorce. On considering relocation, the Court should consider whether the move will improve the quality of life for both the custodial parent and child and whether the motives of the re- locating, custodial parent are in good faith and whether the custodial parent will comply with the new visitation orders and other considerations. The Court also quoted Ar- ticle 3 of the Convention on the Rights of the Child which states: "In all actions concerning children, whether undertaken by public or private social wel- fare institutions, courts of law, administrative authorities or legislative bodies, he best in- terests of the child shall be a primary consideration." This was echoed in a judge- ment Carmelo Mizzi -v- Mary Mizzi decided on 20 June 2015, by the Family Court. The Court held that the par- ties in the case did not prove that a move to Canada will be detrimental to the minor child. As to the care and custody of the child, the Court quot- ed from Giuseppe Scicluna -v- Maria Scicluna pro et noe decided by the First Hall of the Civil Court on 31 May 1958, which held that the care of a child is regulated by the princi- ple of what is in the best inter- est of the child in the circum- stances at the time it is being requested. The Court held that it was convinced that both Parties loved their son. Their access arrangements was working. The father paid maintenance, although they shared equally time with the son. The Court considered the times that the mother ran off with the child to the Czech Re- public and Austria. The Court held that the father would give more stability and concluded that care and custody should be given to the father. The mother should have frequent access remoting a minimum of four times a week and when she travels to Canada, she will have uninterrupted with her son. 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