By Dr Daniela Azzopardi Bonanno

The media reporting of the judgment of the child abducted and removed from Malta by her own biological mother has stirred conflicting views and opinions on social media. People have questioned how it could be abduction when the child travelled with her own biological mother. Yet on the 8 of February 2021 the Family Court of Malta, presided by Madame Justice Jacqueline Padovani Grima LL.D, declared that the taking of the child out of Malta constituted an illegal abduction and should the minor be traced and found, she is to be immediately returned to Malta.

How can a biological mother abduct her own child?

An abduction or the illicit removal of a child takes place when any person removes the child from the place of residence of such child. In this case, the child was born and had always lived in Malta. She also attended school and extracurricular activities in Malta. Despite her foreign origins, she spoke Maltese and English and had integrated fully into the Maltese foster family having lived with the family for years. Hence the removal of the child by her biological mother from the place where she found as familiar and as the place that gave her security, still constituted an act which of itself goes against the child’s wellbeing. The child was not at all prepared for such a change since she was taken out of Malta without any prior notice and without any personal belongings. Despite the mother having planned her departure with the child, she had not disclosed this to the child and therefore the child took nothing of value with her. One day she was living a life she knew, a routine that she had been living for years and the next day she was taken to a life outside of Malta which is unfamiliar to her, where she knows none and where she is constantly on the run from the authorities as her mother would face criminal proceedings against her if she gets caught.

In fact, in the above cited judgment the Family Court examined in great detail the constituitive elements of  an illicit abduction, which briefly are the following:

1.That the child was removed from the place in which she had lived for a considerable period of time and which felt home to her;

2.That the child was taken away without the consent and/or authorisation of the person who is trusted with the care and custody of the child; and

3.That the return of the child to such a place of residence will not present significant risk to the wellbeing of the child.

The first element has already been delved into above. With regards to the second element, it is important to note that the actions of the mother constituted illicit abduction since the care and custody of the child had been entrusted into the hands of the Minister for Social Justice and Solidarity, the Family and Children’s Rights by virtue of a care order. However, it still needs to be pointed out that even if this were not the case, the same action could still amount to illicit abduction if the prior authorisation of the other parent is not sought and obtained. In fact there is a string of judgments relating to abduction whereby proceedings were filed on behalf of the ‘left-behind parent’ since the child was taken out of the country or retained in another country beyond the agreed period of time, without the authorisation of that parent. Hence, even if the alleged abductor is the biological parent of the child, it is still consdiered an illegal action since one is acting unilaterally and violating the rights of the other parent.

With regards to the third element, Madame Justice Padovani Grima eloquently noted in her judgment that the return of the child to the country in which she had lived before the abduction can only be spared if this return will cause significant harm to the child’s wellbeing. This is not to mean that any psychological confusion is to constitute this element, since it is only natural for the child not to understand all that would be going on and certainly not why the parent has to face criminal sanctions. Therefore it would only be in circumstances which would seriously harm the child that the return of the child is not ordered.

This abduction case was certainly not the first of its nature, however it was particular in that the abducted child was under the protection of a care order and therefore the ‘left behind parent’ in such a case is the Minister vested with the child’s care and custody. It was also particular in the fact that the child had left the Island with a valid passport of another child who resembled her greatly and who had similar origins and it was for this very reason that no alert was raised by the authorities.

The timing of the judgment examined here was also crucial in that, in contrast to previous jugdments, the legal declarations of illegal abduction and of the return of the child upon being found, where sought before the child had been traced and found. This proactive approach was sought in order to aid the ongoing efforts to trace and find the child, especially since the Hague Convention stipulates a one-year time period for the return of the child from the date of the alleged abduction. Should the child be found, the Central Authority of the place where she is found will immediately proceed before the court of that place to enforce the Maltese judgment already obtained, instead of going through proceedings to have the above mentioned elements established and declared afterwards.

Dr Daniela Azzopardi Bonanno is Partner at Lex Group Legal