Malta Law Firm > Insights > Pre-empting Abduction: The Warrant of Prohibitory Injunction

Pre-empting Abduction: The Warrant of Prohibitory Injunction

3.3.25

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3 MINS

Practice Area

Litigation and Dispute Resolution

What constitutes Abduction?

International Child Abduction entails wrongfully removing or retaining a child under the age of sixteen, in a country which is not their habitual residence, without the consent of any person, institution or other body who at the time of the wrongful removal or retenation where actually exercising custody rights over the child, or would have exercised these rights where it not for the removal or retention.¹ From a civil law perspective child abduction merely entails taking by force or kidnapping a child – if the removal or the retention of the child is perpetrated with the intent to harm the child or place their life in danger, this would constitute a criminal offence and falls outside the scope of this article.

Pre-empting Abduction

Child abduction in the context of family law, is generally committed by one parent, whose intention would be to flee and settle in another country with their children without informing the other parent of their whereabouts, resulting in the left-behind parent, not being able to exercise their custody rights. Hence, when a parent exercising custody rights over their child, has a real and reasonable fear that the other parent might remove or retain their child in another country without their consent, it is advisable to file a warrant of prohibitory injuction, aimed at restraining any person from taking any minor outside Malta. This precautionary measure in layman’s terms can be referred to as implementing a ‘travel ban’ on the children.

Filing a Warrant of Prohibitory Injuction

The warrant must contain the name, surname, description and any other particulars of the child such as their photo to enable the authorities who would eventually be served with the warrant to ascertain the identity of the children. When a warrant of the sort is filed before the Courts, the Court will provisionally acceed to the request immediately. Consequently, the Court has a time-frame of 30 days within which to take a definitive decison whether to uphold or withdraw the warrant for a definitive period, during which time-frame the Court must receive the defendant’s reaction to the said warrant in writing, and must schedule a hearing for the parties to appear before it and bring forth all evidence to substantiate their respective positions.

Article 877 of the Code of Organisation and Civil Procedure, explains that when a warrant of prohibtory injuction is filed to restrain any person from taking a minor outside Malta, this needs to be served; first and foremost to the person having legal or actual custody of the minor concerned, as well as to the officer charged with the issuance of passports, and the Commissioner of Police. In circumstances where the children have any valid passports or travel documents issued in their name, the Court may order that they are deposited in Court.

If after hearing the parties, the Court decides to uphold the warrant, this remains valid for a period of one year from date of issuance – an extension of its effects may be requested by means of an application served on the parties and authorities concerned before its expiration date. When issuing a decree in this sense, the Court will state the date until when the extended warrant shall remain in force. Although an extension may be granted more than once, it may only be granted for one year each time.

Court Considerations

Whilst determining warrant no 34/2019/1², the Court held that, ‘… in proceedings for the issuing of a precautionary warrant, the Court may not delve into the merits of the case, but rather it must be satisfied that the person asking for the warrant to be issued, has a prima facie right and that the warrant is necessary in order to preserve that right.’ The Court must therefore determine that the person requesting the issuance of the warrant is exercising custody rights, and has a real and reasonable fear, that the children may be removed from Malta – which would result in the depravation of exercising such rights. If any one of these elements does not subsist, the Court will reject the claim.

To further qualify this, in warrant no. 15/2023/2, decided on the 3rd March 2023, the Court remarked that if the applicant has a prima facie right which should be preserved and the warrant is necessary, the Court must be convinced that the grade of prejudice which the applicant will suffer if this right is not safeguaraded by the issue of a warrant must be irremediable. Mere difficulty, discomfort or worry is not enough to request the issuance of such warrants. By irremediable, one understands that the prejudice must be such that it cannot be remedied other than by the issuance of the warrant. If the however, the inconvenience or complaint can be remedied by means of a Court decision after the Court investigates the merits of the case, the elements necessary for the issuance of the warrant do not subsist.³

These proceedings are treated as the exception and not the rule since they are restrictive in nature. In the Courts’ words⁴; “… such proceedings should only be availed of to safeguard the best interest of the minor and to protect one of the parents from being arbitrarily deprived of a relationship with the minor, and not as an attempt to hold the other parent hostage in a particular country.”

References

¹ For a detailed read on the topic, reference is made to the publication by GHSL, entitled ‘Selective Essays on Family law’, 2024 wherein the author in caption has penned an article discussing ‘Child Abduction Cases’.

² The Civil Court (Family Section) JOF vs. MS decided on the 8th May 2019;

³ The Civil Court (Family Section) SV vs. KM decided on the 3rd March 2023, ‘Anke jekk rikorrent ghandu jedd prima facie x`jigi tutelat, il-grad ta` pregudizzju li jkun se jgarrab jekk il-jedd tieghu prima facie ma jkunx tutelat bil-hrug tal-Mandat, irid ikun irrimedjabbli – dan skond il-gurisprudenza tal-Qrati taghna. Mhux bizzejjed li jkun sempliċi diffikulta’, disagju jew thassib’ … ‘B`irrimedjabbli wiehed ghandu jfisser illi l-hsara li minnha r-rikorrent ikun qed jilmenta, tkun wahda tali illi ma tistax tissewwa mod ieħor. Jekk l-inkonvenjent jew in-nuqqas lamentat jista’ jitnehha, mqar b’deciżjoni wara li jiġi mistharreġ il-kaz fil-mertu, jiġi nieqes dan l-element mehtieg għall-hrug tal-Mandat.’

⁴ The Civil Court (Family Section), warrant no. 134/2021/2, RZ v. DZ decided on the 5th October 2021.

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