MALTA Law and Practice Contributed by: Robert Thake, Robert Thake – Legal Office
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility In Malta, a parent’s decision-making power stems from the institute of “parental authority” or “paren - tal responsibility.” According to Section 131 of the Maltese Civil Code, a child is subject to the author - ity of their parents for all effects established by law. Except in cases provided for by law, such as in cases of a medical emergency, this authority is exercised jointly by both parents. Following the death of one parent, the surviving parent assumes full authority. In the event of a disagreement between the parents on matters of particular importance, either parent may apply to the appropriate court as prescribed by law, requesting directions deemed appropriate to the cir - cumstances. 1.2 Requirements for Birth Mothers Parental rights in Malta are vested in a parent simply by virtue of their parenthood. In the case of the moth - er, the mother is always deeded to be certain (mater semper certa est) and as such her rights of parental responsibility are immediate and automatic. 1.3 Requirements for Fathers The parental rights of a father differ depending on whether he is married to the mother who gave birth to the child or not. If the parents are married, he is deemed to be the father of the child automatically and is vested with parental rights as a result thereof. If the parents are unmarried, the father would need to be registered as the father of the child since his recogni - tion as being the father is not presumed as it is in the case of marriage. Once registered as such, the father would enjoy rights of parental authority over the child. 1.4 Requirements for Non-Genetic Parents Under Maltese law, non-genetic parents are recog - nised limitedly through the institute of in loco parentis. In this latter case, the spouse of a child’s parent may enjoy rights and obligations over the person of a child by reason of their marriage to the parent of that child but on when the other parent of that child shall have, at any time before or during the marriage, died or been declared as an absentee.
A judgment handed down recently, however, has rec - ognised the right of non-genetic “parents” to request access to a child who they would have helped to raise during their relationship (not marriage). The judgment was handed down by the Civil Court (Family Sec - tion) but was not appealed, meaning that the Court of Appeal has not as yet had the opportunity to pro - nounce itself on this point. 1.5 Relevance of Marriage at Point of Conception or Birth Marriage has a legal impact on parental responsibility only in so far as the father is concerned. A married father is deemed to be the parent of the child given birth to by his wife (pater est quem nuptiae demon - strant). In this latter case, the father is registered as the father of the child automatically. On the other hand, if a mother and a father are not married, the father would not automatically be registered as the father of the child. Once registered, the father would enjoy rights of parental authority over the child. The mother of a child is always considered to be the mother (mater semper certa est) and her rights of parental responsibility are immediate and automatic. 1.6 Same-Sex Relationships Individuals in same-sex relationships acquire parental responsibility as soon as they are legally recognised as the child’s parents, on the same basis as any other parents. 1.7 Adoption In the case of adoption, once the adoptive parents adopt their child, they are deemed to have obtained parental responsibility over that child without the need for any additional procedure or formality.
2. Relocation 2.1 Whose Consent Is Required for Relocation?
Section 131 (2) of the Maltese Civil Code makes it clear that, save those cases established by law, all aspects of parental authority are to be exercised by the common accord of both parents. This includes the relocation of common children. If one parent relocates
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