The Maltese courts have a category of court cases distinguished from all other cases by the colour of the files – pink files. Hundreds of these cases can be filed every year in Malta’s and Gozo’s family court according to estimates of my sources in the justice system.
And you know what the judges have to decide: whether a parent can take his or her child on holiday without the consent of the other parent.
The cases can be repetitive. If a parent wants to travel with the same child three times in a year – and the other parent withholds consent – a new court case has to be filed every time, a new pink file opened every time, the judge every time hears the same arguments and the same objections, and possibly the same lies or false allegations, and decide on the same matter. (This is something I experienced in the past, having to go to court repeatedly within same year to get authorization for my daughter to travel.)
Since court cases in family courts are assigned by rotation, if you do this twice in a year, you might get a different judge and two different decisions even though the facts would largely be the same. This is because judges (or magistrates in Gozo) in such matters exercise discretion that often boils down to personal sensibility (one judge for example – and I did hear a judge say this – might feel that a child ought to miss not even one day of school to go for a holiday, while another might feel that there is no issue with that).
These discretionary, variable decisions embolden a parent who wants to pick battles or be spiteful: all that parent has to do is to refuse consent, or not even reply to a written request for consent, and then the onus would be on the requesting parent to incur most effort and expense to go to court and prove his or her case.
The reason these clusters of case – as I said, hundreds of cases every year – are generated is because when marriages break down in Malta and the parents of children under 16 or 18 separate, the spouses end up with separation contracts, either reached amaibly or through litigation, which usually have a so-called travel clause that regulates how the child or children can be taken out of Malta on holidays. The clause usually specifies that any of the parents can take the child or children on holidays with the other parent’s written agreement, and if consent is not granted, then the parent wishing to travel would apply to the family court for authorisation.
Below is an example of the kind of wording find in such clauses.
Some parents manage to do variations on that clause to make consent harder to be refused, for example by specifying that the parents can travel for a defined period of time every year. Yet consent is still implicitly needed, and the issue would still end up in court, if the non-travel parent insists that access (contact with child) provisions have to be respected. (In case of missed access, a police report can be made and the police, in such cases, prosecute almost automatically.)
In fact, the travel provisions have become so established that many schools require parents to fill in a form before the school can authorise any travel that falls on school days, and the form specifies that in the absence of one of the parent’s signature, then court authorisation has to be appended.
As already pointed out, these travel provisions generate lots of litigation that heaps further work on already overworked judges and magistrates as well as court administration – the courts in Malta suffer from chronic shortage of staff and space (there is no room for additional files or paperwork).
Yet this is neither necessary nor legal.
Yes, you read right – like you I also assumed that the travel provisions were legal or legitimate until a European lawyer I collaborate with on international parental disputes saw one such clause and told me that he believes that that clause is in breach of Schengen free movement regulations and EU law. I then consulted two additional experts in EU law and both of them concurred that such clause is in breach of EU law. (I am not mentioning any of their names because I did get permission from them to use their name in publication.)
What I am saying here only applies to the EU – all legal sources told me that that clause is fine for travel outside the EU. I am not going to go into the reasons why these legal experts believe that clause jars with EU rules as that is beyond the scope of this article.
Instead I want to conclude this article by making the following points – which touch upon the scope of this article: the efficiency and delays and injustice and arcane ways of Maltese courts – on what the government and court administration can do:
- Seek legal expertise on the legality of such travel clauses within EU rules on freedom of movement and, if the advice they get is that it is not legal, then judges can simply start rejecting that clause in separation contracts (all contracts have to be endorsed by family court), or accepting a modified version of it that applies to travels outside the EU.
- Process these cases entirely online – all submissions can be filed online and any hearings conducted online. This reduces the burden of paperwork and human traffic, and need of actual courtrooms, in the court building (the court system is already overwhelmed with room constraints). It would also make the cases more efficient for everyone – courts as well as litigants. Such a system works entirely well in some tribunals – for example, the planning tribunal, where cases are heard entirely online – and so it would work easily for cases in which the only decision that has to be taken is whether a child can travel temporarily abroad with a child.
Featured Image in this article created by AI for illustrative purposes.
