Parenthood encompasses the acquisition of rights and responsibilities towards one's children. Parents are duty-bound to look after, maintain, instruct and educate their children, as well as administer their property and represent them in all civil matters. Whereas children are under the authority of their parents until they reach adulthood, and they are expected to obey their parents within the boundaries of the law.
When regulating the relationship between parents and their children, Maltese law refers to parental authority and custody. The law does not define these terms, but to make a general and brief distinction between the two, parental authority entails taking responsibility for the general welfare of one's children, while custody pertains to the children's living arrangements.1 When a parent is divested of custody, it does not mean that their parental rights are lost, the right to visitation, taking decisions concerning their children, and the right to be informed of the child's progress still need to be exercised.2
DETERMINING CUSTODY
Article 56 of the Civil Code, explains that in personal separation cases, the Court determines in whose custody the children will be entrusted. Custody can either be vested in one parent, or with both jointly. When doing so, the paramount consideration is the welfare of the children. In fact, the Court carries out a broad assessment of all factors of the child's life such as; the wishes of the parents and the child, the interaction and interrelationship of the child at home, at school and in the community as well as the mental and physical health of the individuals involved. In doing so, the Court may appoint medical and psychological experts to examine and assess the family dynamic between the parties and provide recommendations – based on which, the Judge would be in a better position to reach an informed and suitable decision on the case at hand.
WHAT LEADS TO THE CESSATION OF PARENTAL AUTHORITY?
In normal circumstances, both parents have an important role in the life and upbringing of their children, for which reason neither parent should be excluded from the upbringing of their children unless there are grave reasons for the Court to take such a drastic measure. In taking these decisions, the Court is guided by the best interests of the children, hence it should examine whether in the circumstances of the case at hand, it is in the best interest of the children that one of the parents is devested from parental authority.
Parental Authority ceases either by operation of the law3 or by Court Order4. In the former instance, parental authority ceases on the death of both parents, or when the child attains eighteen years of age, or if the child marries or if the child leaves the parental home and sets up a separate domestic establishment. The Court may deprive a parent from parental authority wholly or in part in the following circumstances:
- if that parent exceeds the bounds of reasonable chastisement;
- if a parent ill-treats their children or neglects their education;
- if the conduct of the parent endangers the education of the children;
- if the parent is interdicted or under a disability as to certain acts;
- if the parent mismanages the property of the child and if the parent fails to perform any of the obligations to look after, maintain, instruct and educate their children.
In serious cases, the Court may also exclude both parents from the exercise of these rights, in which case, the children would need to be placed in alternative care.
In addition to the above, when determining personal separation proceedings, the Court may deprive a parent or both from parental authority 'when circumstances so require'.5 Thus the legislator intended to give the Courts wider discretion when parents will no longer be residing together. When commenting on this law, in Case 291/2018 the Court explained that divergencies between parents is not a sufficient reason to deprive a parent from exercising parental authority – if this were the case, then losing parental authority over one's children would be the rule not the exception.6
COURT OBSERVATIONS DURING CUSTODY CASES
The Case 291/2018 concerned the defendant's complete abandonment of his daughter to the extent that it was not possible to trace his whereabouts for the purposes of those proceedings. The defendant had not seen his child since birth, had not enquired in her regard, neither contributed financially towards her upbringing. This abandonment placed the mother of the child in a difficult situation with regards to taking necessary decisions relating to the child, since the defendant made it impossible for the mother to contact him. In this case, the Court determined it was not in the best interest of the child that the mother would need to resort to judicial proceedings every time, the consent of the father was required, hence the Court was convinced that there were sufficient reasons to deprive the father from parental authority, and for this to be vested exclusively in the hands of the mother.
In another case with application number 76/2022,7 the mother of a four-year-old child, filed proceedings against the father claiming he no longer took interest in their child's upbringing after starting a new relationship and a family with a third party. The communication between the parties was no longer positive, the father stopped paying maintenance and expressed the intention of not remaining present in his child's life. In determining this case, the Court clarified that where minors are concerned, there is not a right for the parent to be granted access to the children, but an obligation of both parents to contribute towards the upbringing and development of their children. For this reason, the minor needs to be in contact with both parents. No child should be deprived of any parent unless recommended by experts or it is clear, on a case-by-case basis that it would not be in the best interest of the child to retain contact with one of the parents. In view of the above observations, the Court vested the care and custody solely in the hands of the mother, deprived the father of parental authority however still ordered the father to visit his child once a week, for two hours under supervised access and in the presence of the mother.
Through these court decisions, one notes that it is only in exceptional circumstances that ties between a parent and their child are completely severed.
Footnotes
1 In the Civil Court (Family Section) presided over by Justice Robert Mangion, application number 24/2012 with the names; 'AB in her name and on behalf of her minor daughter CD v. ED' decided on the 28th May 2015; the Court enters into this distinction and states; 'Ezami akkurat tal-Artikolu 56 appena citat juri illi l-ligi taghna taghmel distinzjoni bejn 'IL-KUSTODJA' tal-ulied fuq naha u 'IS-SETGHA TA' GENITUR' jew 'L-AWTORITA' TA' GENITUR' fuq in-naha l-ohra. (...) Strettament ghalhekk il-Qorti ghandha tiddeciedi fl-ewwel lok dwar il-kustodja tal-minuri, u cioe' ma' min il-minuri ser tirrisjedi u fit-tieni lok dwar jekk ghandiex iccahhad lil xi hadd mill-genituri mill-awtorita' ossia s-setgha ta' genitor.
2 In the Civil Court (Family Section) presided over by Madame Justice Abigail Lofaro, application number 140/2019 with names 'Mark Micallef pro et noe v. Ramona Caruana' the Court clarified this distinction; "(...) s-setgħa tal-ġenitur ma hijiex ugwali għal kura u kustodja, izda huwa kunċett legali li emanixxa mid-Dritt Ruman li jinkorpora fih, fost oħrajn, il-kunċett tal-kura u kustodja. Fil-fatt jekk wieħed ma jkollux f'idejh il-kura u kustodja, ma jfissirx li jitlef id-drittijiet l-oħra li jappartjenu lilu bħala ġenitur, fosthom id-dritt ta' aċċess, id-dritt li jieħu deċizjonijiet flimkien mal-ġenitur lieħor, id-dritt li jkun infurmat dwar il-progress tal-minuri, u d-dritt li jiffirma u jġedded passaport.
3 Article 150 of the Civil Code, Chapter 16 of the Laws of Malta
4 Article 154 of the Civil Code, Chapter 16 of the Laws of Malta
5 Article 56(5) of the Civil Code; 'Meta c-cirkustanzi hekk jehtiegu'.
6 In the Civil Court (Family Section) presided by Madame Justice Jacqueline Padovani Grima, with application number 291/2018, in the names AF v. Dr Yanika Bugeja and PL Gerald Bonello as curators of the absentee EF decided on the 13th October 2020.
7 In the Civil Court (Family Section) presided by Madame Justice Abigail Lofaro, with application number 76/2022, in the names 'AB v. CD' decided on the 24th November 2022.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.