A father was declared the natural father of a minor child, irrespective of the fact that the mother’s husband had adopted the same child. This was held in a judgement delivered by the Family Section of the Civil Court in AB -v- CD and FD et, presided by Mr Justice Anthony Vella. This judgement was delivered on 30 April 2020.
AB, told the court in his application that in 2014, his partner CD, gave birth to their son. A year later the mother married FD. Recently he was informed that when the minor child was born his birth certificate read ‘unknown father’. The mother had a relationship with the Plaintiff, AB, before her marriage and also after. Again the Plaintiff learned that the mother’s husband is now registered as the father of the child. He asked the court to declare him as the father of the child.
The Defendant husband of the mother filed a statement of defence, and argued that this action was filed in terms of Article 77A of the Civil Code and that the birth of the child did not occur in wedlock. He further argued that this action cannot succeed because he adopted the minor child.
The Defendant mother also argued that this action cannot succeed since the parents are herself and her husband and therefore, the Plaintiff has no juridical relationship with the minor child.
The Director of Public Registry who is also a Defendant, argued that Article 86 of the Civil Code, stipulates that the Plaintiff should have filed a judicial letter before filing this action, something which was not done.
Mr Justice Vella analysed the facts of the case. The Plaintiff and the Defendant mother had a relationship and she became pregnant. The Plaintiff claimed to be happy with the news of the pregnancy and visited the doctor with the Defendant mother. However, shortly before the birth of the child the couple argued and the mother did not speak to him. He tried to make contact, however, was accused of stalking her. He was not even informed when she gave birth and learned from third parties and from the criminal proceedings she instituted against him. In 2015, the Defendant mother married and from there allowed the Plaintiff to visit the child and there were times he slept at the Plaintiff’s house. It seems that the mother rekindled her relationship with the Plaintiff. The son has taken to calling the Plaintiff “papa”.
The Defendant mother had a different version of events. She told the court that when she had a relationship with the Plaintiff, she thought he was separated, but later learnt that he was still living with his wife and children. She spent the pregnancy mostly on her own. After the birth she met FD and he immediately began to form a genuine bond with her son. Therefore, it was natural for him to adopt this boy. She accused the Plaintiff of pretending that the child is not his. He only showed interest when she had matrimonial problems with FD. She reconciled with her husband and at the time both felt unsafe because of the Plaintiff’s attitude and had to hire security.
The Court appointed a DNA expert, who had sent the blood samples and the photos of the parties to a laboratory in Germany. The Defendant mother contested these results, since the expert did not carry out the tests himself, but merely sent them abroad and received the results back. The Court turned down the request for these results to be removed from the acts of this case, since the procedure had been used by this experts for over a decade and therefore, it was acceptable for the Court to carry on this practice.
The Court then dealt with the pleas raised. The Court turned down that this action was based on Article 77A of the Civil Code, since it regulates filiation within marriage and obviously the parents in this case were not married.
As to the plea raised by the Director of Public Registry, in that the Plaintiff should have first filed a judicial letter again this was turned down. This article stipulates that if a person claims to be a parent of a child out of wedlock, he/she should file a judicial letter. This is done when the certificate states that the father is unknown, however, we are now speaking of the child being adopted by the mother’s husband.
The legal point that the Court concentrated on is whether filiation can take place, when the child is adopted. The Court quoted from a previous judgment Reginald Bugeja -v- Charmaine Calleja et decided on 30 June 2004. In this judgement the Court held that it is within the interest of the minor child that he/she knows who his/her father is and the Court should not be used to hit upon this essential fact. Therefore, the Court saw that it is in the interest of the minor child to know who their natural father is. The Court expressed concern on the Defendant mother’s actions, who drifted to and fro from the Plaintiff to her husband together with her son. The plaintiff had a relationship with his son and shows an interest in him. The Court held that it is unfair for the minor child not to have a healthy relationship with his father, because there is an abuse of the adoption. This is contrary to the interest of the child.
The Court then moved to uphold the Plaintiff’s claims.
Avv Malcolm Mifsud
Mifsud & Mifsud Advocates
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