Published on 4 October 2021

FIRST SECTION

Application no. 4952/21 N.V. and C.C. against Malta lodged on 12 January 2021 communicated on 15 September 2021

STATEMENT OF FACTS

1. The applicants, Ms N.V. and Mr C.C., are Maltese and British nationals respectively, who were born in 1976 and 1968 respectively and live in Xewkija, Gozo. They are represented before the Court by Dr W. Cuschieri, a lawyer practising in Mosta.

The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. The first applicant married J. and a son, E., was born from their marriage in March 2006. They separated from each other by means of a deed of personal separation on 14 January 2008. In that deed, the first applicant and J. agreed that they would live independently of each other and that none of them would interfere in the private life of the other party. It was further agreed that the first applicant would have E.’s care and custody and that E. would reside and live with the first applicant on the island of Gozo (one of the islands of the Maltese archipelago), where both parents lived at the time, and that J. would have access or visitation rights.

4. Subsequently, on 5 June 2009 the first applicant asked the court in Gozo to authorise her to move from Gozo to Malta, to live there with the minor child and register him in a school in Malta, in the light of her new job. That court granted her request by means of a decree of 23 July 2009.

5. In 2012 J. instituted proceedings before the Civil Court (Family Section) (see paragraph 7 et sequi. below).

6. In the meantime, J. begun a relationship with a third party (who already had a daughter of her own) from whom he had another child. In December 2013, the first applicant also begun a relationship with the second applicant, and in 2016 she became pregnant of him, giving birth to the child in November 2016.

7 . The subject of these proceedings before Civil Court (Family Section) instituted in 2012 was initially J.’s access rights, with a certain animosity arising between the parents. Issues included the presence of J.’s partner during the visits and the hindrance of the first applicant to the visits, as well as requests for prolonged visits over the holidays.

8. On 5 May 2015 C.S. was appointed as a psychologist to assist and follow E.

9. On 12 June 2015 the first applicant asked the court to allow her (and the second applicant) to travel with her son. J. objected claiming that the second applicant had been violent during an incident on 18 July 2015.

10. On 20 August 2015 (two days before the planned holiday) the court rejected the first applicant’s request to travel with her son, upholding the objections raised by the father, and noting that the Children’s Advocate’s opinion (see paragraph 13 below) had not yet been submitted. On the same day the first applicant submitted a note explaining the situation and noting that the second applicant had been the victim of violence not the other way around.

11. In the meantime, in July 2015 the first applicant had asked the court to revoke J.’s access in the light of the violent incident of July 2015.

12. Subsequently, by means of an application filed by J. on 24 July 2015, J. asked the court to order that E. live with him and that E. be forcefully taken from his mother with the assistance of court marshals and the executive police. He brought to the court’s attention that on 18 July 2015 the second applicant had gone to his house and threatened that he would kill E. He further alleged that the second applicant had psychological problems, that E. was scared of his mother and that he had been lying. J. asked the court to appoint a psychologist to examine the mother and to determine whether she was fit to have custody of the child.

13 . On 3 August 2015 the first applicant objected to J.’s request. On the same day a Children’s Advocate was appointed and on 29 September 2015 she submitted her report, but the parties were not informed.

14. By means of a decree delivered on 1 October 2015 the court ordered the first applicant not to expose the minor to her partner (the second applicant) and this with immediate effect. The court also admonished the first applicant for hindering J.’s access rights and warned her of serious consequences if she were to continue with such hindrance. It also appointed psychologist C.S. to assess the minor children ( sic. ) after communicating with the Children’s Advocate and ordered the Aġenzija Appoġġ (AA) social workers to perform monitoring visits at the first applicant’s home and report accordingly. It transpired from the decree that a report of the Children’s Advocate, that was sealed by order of the court and was not accessible to the parties to the proceedings, had been presented.

15. The court-appointed psychologist (C.S.) submitted her report on 25 November 2015, after fourteen meetings with the parties. From the report it resulted that E. (at the time nine years old) cared for both parents and wanted to please them both but considered that his life was in Malta and that his moves to Gozo every other week were frustrating his life and commitments. It also transpired that E. was very fond of the second applicant who he missed and wished to see, and that there was nothing untoward and/or dangerous in the relationship established between them. C.S. suggested that visits take place after the child’s Saturday commitments until Sunday, and that they be prolonged when he is on school holidays, so not to disrupt his commitments. She also considered that both the life E. had with his mother and that with his father could be beneficial to him, had the parents been able to understand that and be more co-operative. She suggested that they be assisted by a parental coach or family therapist.

16. This notwithstanding, the court did not revoke its decree of 1 October 2015 of its own motion. On 9 October 2015 the first applicant thus requested the revocation of the just-mentioned court order. Taking into consideration the fact that the court had ruled without knowing, seeing or hearing the second applicant, she also asked the court to extend the role of the psychologist to evaluate the second applicant’s character as well as his relationship with E. who could also be heard. She asked the court to hear the second applicant. J. objected, reiterating the arguments made in his application of 24 July 2015.

17. On 28 October 2015, without holding a hearing, the court dismissed the request under all its heads “for some of the reasons mentioned in the objection pleadings”, no specific reasons were mentioned.

18. As a result, the first applicant who lived with her son and was expecting a child of the second applicant could not live with the latter in the same household, and the latter could not assist her in everyday needs. While the order of 1 October 2015 remained in place for five years, it appears from the testimony of the second applicant in the constitutional redress proceedings (referred to below) that the situation only continued in practice until the birth of their child in November 2016 (see paragraph 20 below).

19. On 20 June 2016 the applicants instituted constitutional redress proceedings. They complained that the decree of 1 October 2015 and subsequent decrees rejecting any requests for it to be revoked, breached their rights under Article 8, as they were precluded from living together, travelling together or being together, if E. was present. The consequences were even more serious considering that the applicants were expecting a baby. They also complained that those decisions were in breach of Article 6 :

- In that the second applicant was deprived of his right to access to court due to the fact that the Civil Court (Family Section) made an order in his regard which affected him without him ever having been a party to those proceedings, without having been granted a hearing, without any form of investigation whatsoever and notwithstanding a request that he be heard.

- In respect of both applicants in so far as the report of the Children’s’ Advocate was sealed by order of the court and none of the parties to the proceedings had had access to it.

- In respect of the first applicant in so far as the decisions affecting her were made by the Civil Court (Family Section) without granting her an oral hearing;

- In respect of the first applicant in so far as she had no effective remedy and no true and proper access to a court to impugn the court decrees ordering her not to expose the minor to her partner and all decrees intended to overturn, vary or revoke that decree. This was so because they all had to be challenged before the same court presided by the same judge who had taken those decisions;

- In respect of the first applicant in so far as the decrees were being delivered without any reasoning, in breach of Article 6.

They asked the court to annul those decrees and award damage with costs. J. was a party to these proceedings.

20 . It would appear that on 3 November 2016 the Civil Court (First Hall), in its constitutional competence, invited the parties to make a concession, without this being understood as being in contempt of the Civil Court (Family Section), and to allow E. to be close to the applicants in the time after the birth of their child. Such an arrangement had to be cautious, prudent and in the best interests of the child.

(a) First-instance

21. By a judgment of 30 May 2019, the Civil Court (First Hall), in its constitutional competence, found that there had been a breach of Articles 8 and 6 of Convention, but did not consider it necessary to award compensation. It however annulled the decision of 1 October 2005 and ordered the applicants to pay one third of the costs of the proceedings.

22. In particular, rejecting the State’s plea of non-exhaustion, it considered that the first applicant had challenged the decision of 1 October 2015, which under domestic law was not amenable to a request for leave to appeal. It thus decided to take cognizance of the case, and accepted J.’s locus standi in these proceedings.

23. It found that the applicants and E. were a de facto family, which suffered interference with their family life in so far as they could not live together due to the order of 1 October 2015.

24. On the merits of Article 8 it considered that the impugned decision had not been justified and had not been in the best interests of the child. Apart from the violent incident, there had been no other reason to justify such a measure. In relation to the violent incident, while the two men had different versions of the events, the only objective fact was that the second applicant was injured but not J. There had therefore been a breach of Article 8.

25. As to Article 6 it considered that the provision had been violated since:

- In a case as sensitive as the present one, which had an impact on vulnerable children and ultimately two families, the least the Civil Court (Family Section) could have done was to appoint an oral hearing and hear the second applicant, as well as other persons, and evaluate the entire situation, particularly given that the evidence showed that E. had a good relationship with him;

- The report of the Children’s Advocate, which could have been the only basis of the decision, had not been accessible to the parties;

- The first applicant had not had any oral hearings in relation to her challenge. The same was the case for her request to travel, and in relation to the variation of J.’s visitation rights.

(b) Appeal

26. The State appealed.

27. By a judgment of 20 July 2020, the Constitutional Court varied the judgment appealed from in part. In particular it annulled that part of the judgment whereby the court had found a breach of Article 8 and instead declared that the complaint need not be entered into once the decree of 1 October 2015 had been annulled and the parties to the civil proceedings had been put in the “ status quo ante ”. It considered that it could only hold that there was a breach of Article 8 of the Convention in the event that proof was adduced to the effect that the impugned decision had not been in the interests of the minor. This could only be known after a fair hearing was granted and such hearing had not yet been granted, and the procedure in 2015 had not been a fair one. The State’s appeal on the finding of a breach of Article 8 was therefore no longer necessary.

28. It also annulled the part of the judgment whereby it had been held that there was a breach of Article 6 in respect of the second applicant and hence dismissed his claim holding that the provision did not apply to him since he was not a party to the civil proceedings between the first applicant and J. Moreover, he had not attempted to lodge an application with the court requesting it to hear him. Half of the costs of the proceedings were to be borne by the applicants.

29. It confirmed the remaining violation of Article 6 under the different aspects upheld by the first-instance court, noting further that the first applicant had not been able to present any evidence to the court which had been adamant in its decisions.

COMPLAINTS

30. Both applicants complain of a breach of Article 8 of the Convention in so far as the decision of 1 October 2015 remained in place for five years. They considered that that decision interfered with their family life and it had not been in accordance with law, nor necessary in a democratic society. The second applicant also complains under Article 6 that the domestic courts had taken a decision affecting him, without him having had the opportunity to participate in those proceedings.

QUESTIONS TO THE PARTIES

1. Was the interference with the applicants’ family life in accordance with the law and necessary in terms of Article 8 § 2 ? In particular, did the domestic authorities strike a fair balance between the interests of the parties concerned and were the reasons adduced to justify the impugned measure relevant and sufficient for the purposes of Article 8 § 2?

2. Did the domestic authorities respect their positive duty under Article 8 to take measures to facilitate family reunification as soon as reasonably feasible? The parties are requested to specify what arrangement was put in place following the invite of 3 November 2016 of the Civil Court (First Hall) in its constitutional competence, and whether such arrangements had been brought to the attention of the Civil Court (Family Section).

3. Did the second applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?