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Last update: 29-07-2004
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Parental responsibility - Malta

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TABLE OF CONTENTS

1. What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility? 1.
2. As a general rule, who has the parental responsibility over a child?(as a general rule exercised jointly by the parents as long as they live together, but may lay with the mother if the parents are not married) 2.
3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place? (or a guardian may be appointed if the parents are deceased or incapable of taking care of their child) 3.
4. If the parents divorce or split up, how is the question of parental responsibility determined for the future? (by common agreement or by going to court) 4.
5. If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding? (e.g. approval of an authority or a court) 5.
6. If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court? (e.g. mediation) 6.
7. If the parents go to court, what issues can the judge decide upon relating to the child? (e.g. the residence of the child, whether the parents shall have joint custody or whether one parent shall have single custody, the visiting/access rights of the parents, the obligation to pay maintenance for the child, the choice of school of the child, the name of the child etc.) 7.
8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent? (e.g. move with the child to another address within the same country, move with the child to another country, decide which school the child shall attend etc.) 8.
9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice? 9.
10. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application? 10.
11. Which procedure applies in these cases? Is an emergency procedure available? 11.
12. Can I obtain legal aid to cover the costs of the procedure? 12.
13. Is it possible to appeal against a decision on parental responsibility? 13.
14. In certain cases, it may be necessary to apply to a court or another authority to have a decision on parental responsibility enforced. Which procedure applies in such cases? 14.
15. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in [name of Member State concerned]? Which procedure applies in these cases? 15.
16. To which court should I turn in (Member State making the fiche) to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases? 16.
17. Which is the applicable law in a proceeding on parental responsibility where the child or the parties do not live in (name of Member State making the fiche) or are of different nationalities? (explain the choice-of-law rules of each Member State). 17.

 

1. What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

In practical terms the legal term parental responsibility means anything concerning the care, welfare, education, maintenance of children, and administration of property belonging to children.

2. As a general rule, who has the parental responsibility over a child?(as a general rule exercised jointly by the parents as long as they live together, but may lay with the mother if the parents are not married)

As a general rule parental responsibility is exercised jointly by the parents. A single mother has parental responsibility unless the father registers the birth jointly with the child’s mother. If the father registers the birth then parental responsibility is exercised by him as well.

3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place? (or a guardian may be appointed if the parents are deceased or incapable of taking care of their child)

The court can appoint a tutor to exercise parental responsibility over the child. However a parent can appoint a tutor to take over parental responsibility in the event that he or she dies.

4. If the parents divorce or split up, how is the question of parental responsibility determined for the future? (by common agreement or by going to court)

If the parents separate then unless they reach an agreement either outside court by or during court proceedings, the court will refer the parents to the court services. The parents will be subject to an investigation by qualified and trained social worker/s, depending on the complexity of the case, who apart from the parents and children will also consult other members of the family, teachers and other professionals who have assessed the parties and their case. The judge will then decide on the basis of the report submitted by the social worker. The parents can also settle the issue through mediation.

5. If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding? (e.g. approval of an authority or a court)

To be legally binding the separation agreement in which the issue of parental responsibility is agreed upon has to be filed in the Public Registry and ratified in Court.

6. If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court? (e.g. mediation)

Mediation services can be resorted to. These services are offered free of charge by the Maltese government so long as the parties abide by the appointments given by the chosen mediator, or else a person may opt to resort to private mediation sessions which obviously are subject to payment.

7. If the parents go to court, what issues can the judge decide upon relating to the child? (e.g. the residence of the child, whether the parents shall have joint custody or whether one parent shall have single custody, the visiting/access rights of the parents, the obligation to pay maintenance for the child, the choice of school of the child, the name of the child etc.)

The judge can decide on the residence of the child, which parent is to have custody, visiting and access rights, the obligation to pay maintenance for the child, whether the parent not having custody is to be consulted in the case where important decisions have to be taken in the interests of the child, and other matters which the parties may claim in their respective application and reply, and which the Court considers as important for the child’s welfare.

8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent? (e.g. move with the child to another address within the same country, move with the child to another country, decide which school the child shall attend etc.)

The court rarely grants full care and custody to one parent but in case this is done then the parent having such custody can determine important issues regarding the child without consulting the other parent, so long as the other parent’s rights, such as access rights, are not going to be affected.

9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

In practice this means that the child has to reside with one parent and with the other in determinate periods as agreed upon by the parents or as decided by the court. Moreover every decision concerning the child has to be by common accord.

10. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

Usually the issue regarding parental responsibility is part of the separation proceedings and so if it is not agreed upon during mediation it is part of the separation application submitted in front of the Family Court. Otherwise a separate application has to be filed in front of the Family Court.

11. Which procedure applies in these cases? Is an emergency procedure available?

The application is set for hearing on a particular date. During the hearing of the case the judge will hear the parties and other witnesses the parties summon. The Court may also appoint social workers and psychologists to draw up a report on the child if it recognises such need. A report will be drawn up by the experts appointed by the Court after they consult the parents, the child and other professional persons connected in some way with the case. If the party submitting the application indicates sufficient valid reasons which show urgency then the application will be treated so, but this depends also on whether the interests of the child are in danger.

12. Can I obtain legal aid to cover the costs of the procedure?

Legal aid can be obtained so long as the individual satisfies the conditions for admission to the benefit of legal aid as provided by article .912 of the Maltese Code of Organization and Civil Procedure (Refer to “Legal Aid - Malta”).

13. Is it possible to appeal against a decision on parental responsibility?

It is only possible to appeal if a point of law is involved, that is if for example one of the parties is not given the right to produce a witness without the court giving a valid reason.

14. In certain cases, it may be necessary to apply to a court or another authority to have a decision on parental responsibility enforced. Which procedure applies in such cases?

If a parent having parental responsibility fails in some way to exercise this right, such as when he fails to maintain the child, then an application may be lodged in front of the Family Court and once filed it is set for hearing.

15. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in [name of Member State concerned]? Which procedure applies in these cases?

For enforcement of a decision on parental responsibility issued by a court in another member state then the documents as required by EC Regulation No 2001/2003 on jurisdiction and recognition and enforcement of judgments in matrimonial matters and parental responsibility have to be obtained. An application has to be made to the First Hall of the Civil Court accompanied by a copy of the judgment and a copy of the certificate (Annex 1 to EC Regulation No. 2001/2003) issued by the Court or authority of the Member State of origin. An address for notification purposes must also be identified. All documents are to translated into Maltese or English.

16. To which court should I turn in (Member State making the fiche) to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

To oppose the recognition of a decision on parental responsibility issued by a court in another Member State an application has to be made in front of the First Hall of the Civil CourtThe procedure as laid down in EC Regulation No 2001/2003 on jurisdiction and recognition and enforcement of judgments in matrimonial matters and parental responsibility applies.

17. Which is the applicable law in a proceeding on parental responsibility where the child or the parties do not live in (name of Member State making the fiche) or are of different nationalities? (explain the choice-of-law rules of each Member State).

The general principle is that the law of the country where the child is domiciled is applied.

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Last update: 29-07-2004

 
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