Skip to main content

The concept of best interest of a minor should prevail in situations of care, custody, access and maintenance.

This was held in a judgement delivered by the Civil Court (Family Section) in SZ vs LE, presided over by Justice Jacqueline Padovani Grima on 8 November 2023.

The parties were involved in an intimate relationship, from which a child, CZ, was born. The parties had an agreement regulating the care, custody, access and maintenance of the minor child CZ, as stipulated by a contract dated the 6 December 2013.

The plaintiff SZ, instituted court proceedings following unsuccessful mediation procedures to amend a contract regulating the care, custody, access and maintenance of a minor, CZ, to better reflect the current circumstances. The plaintiff is requesting the Court to keep the care and custody conjoint between both parties, to reduce maintenance to €250 a month from what is currently established, to increase the hours of access to the child as were agreed upon the contract, and to order the defendant to consult with the plaintiff in matters regarding health and education of the minor child.

The defendant LE, replied by stating that these matters are already regulated through a contract published on 6 December 2013, and what is stipulated in the contract is law between the parties (pacta sunt servanda). The defendant affirms that there were no changes in the current circumstances of the plaintiff that in a way entitles him to ask for such amendments to the contract. The defendant also states that the care and custody of the minor child is already stipulated by contract as conjoint between the parties. Furthermore, the defendant declares that the maintenance and access established through the contract are reasonable and according to law, whilst in addition stating that access was never denied to the plaintiff.

The Court went on to consider the facts and merits of the case following the evidence and testimonies produced during the proceedings. The Court was categorical in affirming that in situations of care and custody, the concept of the best interest of the minor should prevail.

The Court further notes that it has the power to assign care and custody of a minor to one of the parents, if it is in the best of interest of the minor as stipulated under Article 56 of the Civil Code. In fact, the Court remarked that the interests of minors far supersede the rights of the parents.

The Court took also into account the issue about access. Making reference to Article 57 of the Civil Code, the Court affirmed that it is generally in the best interest of minors that their relationship with both parents is preserved, independently from the state of the relationship between the parents. However, at the same time the Court has an obligation and duty to look after and protect the interests of the minors.

Whilst quoting from jurisprudence, the Court stated that Article 149 of the Civil Code makes it ample clear that when it concerns the supreme interest of minors, the Court is not hindered by the strict rules of procedures, but in fact the Court has the right to take the best provision in the interest of such minor.

The Court followed by making certain considerations on the issue of maintenance. The Court stated that the maintenance for children is stipulated under Article 7(1) of the Civil Code which provides that:

“Parents are bound to look after, maintain, instruct and educate their children in the manner laid down in article 3B of this Code.”

Hence, the Court affirmed that as resulting from the dispositions at law, parents have the same obligation towards their children and both parents need to contribute towards the upbringing of their children.

Such obligations are calculated based on their means in accordance with Article 20 of the Civil Code. In fact, the Court quoting from various jurisprudence stated that parents cannot abdicate from their responsibilities to maintain their children, irrespective of their income.

Following the request from the plaintiff to make amendments, the Court noted that what was agreed in the contract, is to be considered binding as law between the parties, under the principle known as pacta sunt servanda. Such principle is established in law under Article 992 of the Civil Code.

The Court further states that although such principle of pacta sunt servanda should be followed, the provisions in the contract about the care, custody and access of a minor, in exceptional cases, and with approval of the Court, could be amended in the best interest of the minor.

Following these considerations and the analysis of the contract by the Court, it was established that the parties had already agreed about the conjoint care and custody of the minor, CZ. Thus, the Court did not consider that such matter needs further examination.

In considering the request for amendments to access for the plaintiff to the minor, the Court affirmed that pendente lite (pending litigation), a decree by the Court was issued on the 1st March 2021, where it was established and agreed between the parties, the dates and time for such access during weekdays. Furthermore, the contract already established precise time for access during weekends and holidays. Hence, again the Court did not consider that it should depart from such decree.

Regarding the issue of maintenance, the Court took cognition of the documentation exhibited by both parties, in particular the income of the plaintiff. The Court in this case established that it should not depart from what was agreed between the parties in the contract.

The Court further remarked that the agreed maintenance was adequate, just and reasonable.

For these reasons the Court decided to abstain from taking cognition of the request for conjoint care and custody of the minor, and for the defendant to consult with the plaintiff regarding health and education matters of the minor, since the contract dated 6 December 2013 already included such provisions. Furthermore, the Court rejected to decrease the maintenance for the reasons above-mentioned and affirmed that access should be as stipulated by the Court decree for weekdays, and as already established by the contract for weekends and holidays.

Av. Malcolm Mifsud


Mifsud & Mifsud Advocates

This article can also be accessed on Malta Today.

For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.