MALTA Law and Practice Contributed by: Robert Thake, Robert Thake – Legal Office
the left-behind parent, and this is likely to impact the overall cost. 2.3.9 Time Taken by an Application for Relocation Unlike in the case of abductions, there is no timeframe within which a relocation case must be determined. Very frequently, the parent wishing to relocate the child would typically be in a hurry to do so and would react accordingly. The other parent, on the other hand, is likely to attempt to do the opposite. 2.3.10 Primary Caregivers Versus Left-Behind Parents A parent who stands to lose a child as a result of relocation is likely to receive some sympathy from the court, but it would be inaccurate to suggest that either party holds a default position of sympathy in the eyes of the court. It would be fair to assume, however, that a court would be unlikely to be sympathetic towards a parent who wishes to relocate for their own reasons and attempts to use the child to attain this end by claiming that the move is actually for the benefit of the child. 2.4 Relocation Within a Jurisdiction Malta is an archipelago of three main islands, of which two are inhabited. Malta covers an area of 246 square kilometres, whereas Gozo covers an area of 67 square kilometres. Moving from one city to another or even from one island to another is not considered reloca - tion, despite potentially causing an inconvenience to the other parent exercising access. The unilateral removal of a child from Malta, without the consent of the other parent, is forbidden under civil law (Section 131 of the Maltese Civil Code), and is illegal in so far as it is punishable under criminal law in very limited circumstances. Section 89A of the Maltese Criminal Code states that anyone who removes from Malta or retains abroad, a minor under the age of 16 years in breach of an order given by the Maltese court, or in breach of a care order issued by a competent authority in accordance with 3. Child Abduction 3.1 Legality
the Minor Protection (Alternative Care) Act, shall, on conviction, be liable to imprisonment from 13 months to three years. The law goes on to specify that “removal from Malta” means the removal from Malta of a minor, even by deceit or fraud, and even by a person having parental authority over the minor, in breach of a court order or care order. Similarly, “retain” means the retention outside Malta for a period of more than three days of a minor, even by deceit or fraud, and even by a person having parental authority over the minor, in breach of a court order or care order. Although the law offers a remedy to the left-behind parent, its effectiveness is limited in the absence of a court order. As a result, the law lacks any deterrent effect before judicial proceedings are initiated, allow - ing an individual who abducts a child prior to court involvement to avoid prosecution altogether. 3.2 Steps Taken to Return Abducted Children If a child is removed from Malta without the neces - sary consent, the course of action would depend on whether the country to which the child has been taken is a signatory to the Hague Convention of 25 Octo - ber 1980 on the Civil Aspects of International Child Abduction (the “Hague Convention”). If the child is taken to a country that is not a signatory state, the options available to the left-behind parent are very limited. The left-behind parent could either initiate custody proceedings in Malta and attempt to enforce the eventual judgment in the country where the child has been taken, or initiate equivalent pro - ceedings in that country. Neither option is generally considered particularly desirable or effective. On the other hand, if the country where the child is taken is a signatory to the Hague Convention, the left-behind parent should immediately contact a law - yer specialising in child abduction in order to initiate proceedings through the local Central Authority. The Central Authority will provide the left-behind parent with a form requesting essential information about the taking parent, the child, and the left-behind parent, as well as any known details regarding the child’s likely whereabouts in the destination country. In addition,
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