Issue link: https://maltatoday.uberflip.com/i/958047
50 maltatoday SUNDAY 25 MARCH 2018 I n the absence of DNA, declaration of the parents of a child could be sufficient to prove the paternity of a child. This was held in a judgement delivered by Madame Justice Abigail Lofaro presiding over the Civil Courts (Family Section) in AB in her name and on behalf of her daughter ND -v- CD. The judgement was delivered on 21 March 2018. The mother, AB filed an application before the courts, explaining that in 2002 she gave birth to a girl, ND and on the birth certificate her husband's name was registered as the father. However, the parties at the time of conception were undergoing separation proceedings and although they lived together, she had an affair with a person she named as G, but does not know his name. The parties were separated in July 2003 by means of a contract. When AB became pregnant she informed her husband and told him that he was not the father. AB asked the court to declare her daughter not to be of her husband and order the Public Registry to amend the birth certificate. CD replied by saying that the case should have also been instituted against the Director of Public Registry, but apart from that agreed with his wife. The Court held that it took into consideration what the daughter declared to the Advocate of the Minor. She held that she met CD in court for the first time and she knew that he was not her natural father. She could not say who her father is, because her mother did not inform her who G was. She also objected to having her mother's husband's surname, since he was not her father. The Court held that according to Article 67 of the Civil Code, the husband was presumed to be the father of the child. The Court also noted that the mother filed the case and not CD and therefore the action was based according to Article 77 of the Civil Code. However, this Article allows that the action must be filed within six months of the birth of the child, if filed by the mother. If the action is filed after the six months then authorisation for amendments to the birth certificate is not allowed. This was held in Nadine Falzon -v- Jalil Zaneldin, decided on 7 December 2016, which upheld a plea raised by the Public Registry that the six months period had elapsed. The would allow the natural father to file an application asking for him to be recognised as the father. Therefore, if the action is done after the six months, then the law would allow an action of filiation and not denegata paternita. The Court pointed out that the mother was representing herself and her daughter. If the mother simply filed the action on her own, the case would have been thrown out, because it was filed well after the six months from the birth. However, the law allows the children to file the same action under Articles 83 and 84 of the Civil Code: "83. Proof to the contrary may be made by evidence tending to show that the claimant is not the child of the person that he alleges has given birth to him, or, where this is proved, that he is not the child of the other spouse. 84. No prescription shall run for an action for a child to establish his proper filiation." On this ground court proceeded with the case. With regard to the merits of the case the court could not rest of scientific evidence, since this is not the only evidence that establishes paternity. DNA results are considered as extremely important in such cases and surpass any legal presumption. The mother may accept that she had an extra matrimonial affair. If the action is brought by the child, this can be proved all the same. In this case the mother had immediately declared that the child was not of her husband and had admitted that she had an intimate relationship with someone she barely knew by name. Article 70(2) of the Civil Code reads: "(2) The declaration of the mother to the effect that the husband is not the father of the child shall be given consideration in an action regarding the exclusion of the paternity of the husband". The Court pointed out also that the defendant agrees that the girl was not his daughter. Although there is no scientific evidence the Court was convinced that the girl was not CD's child. The Court then upheld the plaintiff's request to amend her daughter's birth certificate. Dr Malcolm Mifsud Partner Mifsud & Mifsud Advocates Opinion A development planning application providing for the demolition of an 'existing residence' followed by the construction of a new dwelling was turned down by the Planning Commission. The building in question was located in a Category 3 settlement outside the development zone of Rabat. In its decision, the Commission took note of the following considerations: 1. The height of the proposed building was deemed to exceed the allowable height limitation stipulated in Local Plan policy NWRS 3; 2. The proposal was in breach of policy P36 of the Development Control Design Policy, Guidance and Standards 2015 since the design envelope was not stepped down 'to ref lect the profile of the existing topography'; 3. The proposed dwelling f loorspace exceeded the area permitted at law, namely 200 square metres. 4. Aggrieved by the decision, the applicant lodged an appeal before the Environment and Planning Review Tribunal, claiming that the permit should have been granted. In his submissions, applicant (now, appellant) indicated that 'various permits were issued for similar works' within walking distance of his site. Moreover, appellant pointed out that the Superintendence of Cultural Heritage had not objected to his proposal, highlighting that 'in principle there should be no issue with the demolition of the existing building and its replacement with a new building'. 5. In addition, the Tribunal was reminded that fresh drawings were submitted, showing an aggregate dwelling f loorspace of 200 square metres, as required by policy. Appellant underlined that his site was sandwiched between two streets situated at different levels. For this reason, an 'extra f loor' was inevitable due to the steep gradient linking the two streets. Furthermore, appellant went on to conclude that his development would screen a blank party wall and the proposed height was, in any event, similar to that of the building next door. In reply, the case officer representing the Planning Authority warned that the proposal was in breach of planning policies, reiterating that 'the impact of a basement plus ground and first f loor levels in relation to the sloping nature of the existing streetscape' was visually unacceptable. The permits mentioned by applicant concerned other sites which, by contrast, were not characterised by a 'heavy slope'. In conclusion, the Tribunal was reminded that policy NWRS 3 permits the redevelopment of existing buildings on the premise that the proposal would "not have a detrimental effect on the character of the settlement and the surrounding landscape." In its assessment, the Tribunal acknowledged that the proposal envisaged three f loors in an ODZ Category 3 Settlement. Having said that, the Tribunal observed that the site was located between two streets situated at different levels. The construction of two f loors above upper street level was permitted whereas a three- storey elevation at lower street level was inevitable. Against this background, the Authority was ordered to issue the permit provided applicant submits fresh drawings showing smaller facade apertures. Dr Robert Musumeci is an advocate and a perit with an interest in development planning legislation robert@robertmusumeci.com Robert Musumeci […] a three-storey elevation at lower street level was inevitable Malcolm Mifsud DNA is not the only evidence to establish the paternity of a child When an ODZ site is sandwiched between two streets @ maltatoday