Civil & Criminal Aspects of Child Abduction in Malta

Children are said to be abducted when they are removed from the country of their habitual residence and brought into another country without the consent of their parents or in breach of a court order. In most cases, child abduction happens when one parent decides to take the child to live in another country without the consent of the other parent. 

The 1980 Hague Convention provides that children removed from one country and taken into another without the consent of the left behind parent should be returned to the country from which they have been abducted from. 

In order to return a child to its country of habitual residence, legal proceedings need to be instituted before the Family Court. If all conditions are fulfilled the Family Court, where the child is found, will order that the child is returned to the country of origin. Court proceedings requesting that a child is returned to the country of origin can only be instituted once that the child is located.

Child abduction is also a criminal offence in a number of countries and the abducting person, even if he or she is the parent of the child, may also face criminal charges.

Each country that ratifies the 1980 Hague Convention establishes a Central Authority, whose function is:

1) to receive applications from abroad concerning children abducted into their territory and,

2) to guide local citizens in sending applications to foreign countries demanding that the abducted children are promptly returned to the country the child has been abducted from. 

In both circumstances, Central Authorities are obliged to follow-up with the case until the order for return is made.

Experience demonstrates that there are court judges and staff in central authorities who do their best to ensure that abducted children are promptly returned to their country of origin. However, it is clear that there are court judges and staff in central authorities who are not converse with the child abduction convention or EC regulation 2201/2003, particularly in certain EU member states. Therefore, left-behind parents are always advised to be assisted in parallel with lawyers who are familiar with the law on child abduction so as to ensure that central authorities perform their functions and the correct legal arguments are brought before the law courts where a child-return is requested. 

Abduction of children to foreign countries, particularly by their parents, is not a recent problem. Most governments around the world signed the 1980 Hague Convention on the Civil Aspects of Child Abduction. This convention establishes that: children removed from their country of habitual residence without the consent of the left-behind parent, are to be promptly returned to their country of origin. Therefore, if a child is abducted to a country that signed the 1980 Convention, the law courts of that country are obliged to return the child to the country from where the child has been removed. There are only seven instances wherein the law courts are not obliged to order the return of the child, which instances are difficult to materialise. 

Many authorities and law courts around the world take the 1980 Hague Convention seriously and in a good number of cases the law courts of these countries order the immediate return of children who have been wrongly removed from another country.

In Europe, the 1980 Hague Convention is supplemented with EC Regulation 2201/2003 which provides that court proceedings in child abduction cases should be concluded within a 6-week time-frame. The same regulation also provides that notwithstanding an order for non-return by the foreign court, in certain circumstances the courts from where the child has been abducted can still order the return.

Child Abduction is a specialized branch of Family Law. It is strongly advisable that left-behind parents engage lawyers who specialize in child abduction so that the necessary measures are taken in time.

Left behind parents should also make contact with the Central Authority in their country under the 1980 Hague Convention, whose function is to help left-behind parents navigate through the complex legal maze of child abduction. Be aware that personnel working with Central Authorities may also be inexperienced and give left-behind parents the wrong advice. Therefore, it is always advisable that a left-behind parent always first seeks the assistance of specialized lawyers.

The Central Authority for Child Abduction in Malta is the Social Care Standards Authority. Contact details of Central Authorities around the world are available here.

If the where about of the child is unknown, the left-behind parent would also need to trace the exact location of the child. A lawyer experienced in child abduction cases will be likely able to assist trace the missing child without possibly having to engage a private investigator. In certain cases, a left-behind parent may also have to engage a private investigator to find the location of the missing child.

A number of countries made it a criminal offence for a parent to remove a child from the country with the intention of changing the child's place of residence. In such eventuality, the abducting parent may face criminal charges upon return to the country the child was abducted from.

If the abducting person removes a child without the necessary consents from a country where it is a criminal offence to do so, the police may assist the left behind parent in tracing the child.

If the abducting person takes the child into a country where it is also a criminal offence to remove a child without the necessary consent from the other parent, the police may request that the abducting parent is extradited to the country from where the child is wrongfully removed.

The Maltese Criminal Code does not have a specific section which states that parental-child abduction is a criminal offence, however, there is a constant string of judgments delivered recently by the Criminal Court of Magistrates and Criminal Court of Appeal which holds that Article 86 and 87 of the criminal code, concerning 'Illegal Arrest and Detention' have been stretched to include cases of parental-child abduction. 

The Police can be helpful in tracing missing children, both locally and abroad. Nowadays Police cooperate with greater ease with their European counterparts. Likewise, they are also able to cooperate with their counterparts in non-European countries, particularly if the requested country is willing to cooperate.

A good number of child abduction cases were solved with the help of the police. Experience shows that in certain situations they managed to mediate between an abducting a left-behind parent or persuade an abducting parent to return to Malta.

There are certain cases where the abducting parent closes communication or does not cooperate with requests to return. In such circumstances, the police may notice on the Schengen Information System stating that such person has gone missing. Once a person is listed as a 'missing person' in the Schengen Information System as missing, a police officer in any other European country may arrest that person.

In cases where it is likely that the child will be subject to harm or endangered, the police may issue an Amber Alert. Cases of parental child abduction, by themselves, are not sufficient to trigger Amber Alert but should be enough to trigger a missing person alert on the Schengen Information System, if the abducting parent or child's location is unknown.