Issue link: https://maltatoday.uberflip.com/i/800760
48 maltatoday, SUNDAY, 19 MARCH 2017 Opinion T he 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. Dr Malcolm Mifsud is partner Mifsud & Mifsud Advocates A development planning application to renew a permission for the "upgrading" of stables was turned down by the Environment and Planning Commission, even though the applicant had been granted a permit in 2009. The site is located outside the development zone of Luqa, with a direct access from Triq il-Kunsill ta' l-Ewropa. The architect in charge of the application had indicated that the stables were intended for the "keeping of horses for human consumption". The Commission however found that the "stables" were converted to a restaurant. Moreover, the applicant carried out a series of structural alterations which were not shown in the approved plans. Against this background, the Commission concluded that the proposal was not considered to be "essential to the genuine needs of agriculture" since the farm was evidently "no longer in operation". Reference was also made to Rural Objective 3 of the Strategic Plan for Environment and Development (SPED) which seeks to militate against unjustified rural development. The applicant felt aggrieved by the decision and lodged an appeal before the Environment and Planning Review Tribunal. In his submissions, the applicant rebutted that the premises were not being used as a restaurant. More so, the "electrical services had been suspended". It was also noted that the Agricultural Advisory Committee had found no objection to the application on condition that the "the farm capacity would be limited to seven horses". As a final point, the applicant maintained that it was nonsensical not to renew the permit since "over 65%" of the approved building had been constructed. The case officer representing the Planning Authority confirmed that the premises were no longer being used as a restaurant. Having said that, it was highlighted that a number of illegalities (such as the construction of a toilet and extensive paving works) were still present on site. For this reason, the Authority reiterated that it was correct not to renew the permit. In its assessment, the Tribunal found no reason to dismiss a request to renew a permit if the second application is submitted when the original permit is still valid. Moreover, the Tribunal observed that the Authority had noted that there was considerable on site commitment deriving from a valid permit. Consequently, the Tribunal thought that it made more sense to "finish off " the works in line with the original permit. Against this background, the Tribunal held that the 2009 permit should be renewed subject to the removal of any unauthorised works. Dr Robert Musumeci is an advocate and a perit with a direct interest in development planning law Approval to 'finish off' permitted development Robert Musumeci No reason to dismiss a request to renew a permit if an application is submitted when the original permit is still valid Malcolm Mifsud Court turns down son's request to have adoption decree revoked