The Constitutional Court today confirmed a court decision to have a 5 year old boy be sent back to Poland and join his mother as his father was deemed to have acted illegally in keeping him in Malta.
The Court of Appeal had already called on the parents not to use the boy in the fight between them and said the rule of law must prevail as allowing parents to kidnap children is not in the interest of the children.
The Constitutional Court that the decision of the Court of Appeal to send the child back to his mother in Poland does not break any fundamental right of the child. The Court said that the child’s father did not present any evidence in court and the Polish authorities were unable to safeguard the interests of the child.
The boy was born on 25 March 2007 out of a relationship between a Maltese man and a Polish woman. They had a very turbulent relationship, fought a lot and the mother used to go back to Poland. In December 2007 the father had gone to Poland and the child’s mother told him she would not go back to Malta with the child unless her rights on the child were protected legally.
The parents had eventually agreed that if they were to separate the child would be left in the custody of his mother while the father would have free access to him. The civil court has issued a decree to bind the two to this agreement.
The two came back to Malta hoping that they would settle down to a peaceful family life but they started fighting again and the mother left for Poland with the child and refused to come back with him.
On 12 October 2009 the father sought to have access to his child through The Hague Convention and he started legal proceedings against the mother in March 20120. The man and woman reached another agreement whereby the father could go to Poland pick the child up from his mother’s residence and bring him to Malta for an agreed period of time and then take him back to his mother.
In February 2011 the mother came back to Malta with the intention of joining the child’s father and settle down to family life with him but the father had started a relationship with another woman. Seven months later the mother went back to Poland with the child to stay there. She started a full time job to support him, registered him in a school close to an apartment she rented for both of them.
In December 2011 the father went to Poland to bring the child to Malta. On 10 January 2010 he was bound to take him back to his mother ion Poland but he refused and kept him here, breaking the agreement he had with the child’s mother.
The father said he did all this as the boy was happy with him and that eh had never wanted to give the custody of the child to his mother. He said he was forced to agree tot hat to have access to the child. He argued that what he could give the child in Malta was much better than what his mother could give him in Poland.
The Department of Social protection had started proceedings against the father as he had kidnapped the child as the father had broken EU regulations and asked the court to giver custody of the child to the mother. Both the Civil Court and the Court of Appeal had condemned the father for breaking international law.
The father had then asked the Constitutional Court to overturn the sentences of the two courts as he claimed that he had not been given any fair hearing and that the best interests of the child had not been safeguarded properly by the court rulings. He said that he had asked for a psychologist to report about the state of the child.
The Court said that the father did not present any evidence to support his claims. The report of an educational psychologist presented by the father proved nothing as he did not speak to the child or the mother. The Court also said that the father did not prove that the father was being put at risk in going back to Poland, quite the contrary the mother showed that she really cared properly for the child.
According to the child’s lawyer, the boy was very happy and excited when he met his mother. When asked whether he wanted to go back to Poland at first he said he did not want to go as it is very cold but then said that his father had told him to say so. In another encounter when asked whether he wanted to go back to his mother, the child said yes and started kissing her photo.
The Court also refused the father’s claim that the child is being denied a family life as he is being forced to abandon his father and his brothers.