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EU legislation has interpreted the right to family life in its widest sense and allows Courts to examine whether it is in the children’s best interest to continue to have a relationship with their grandparents. This was decided on 28 January 2020 by Mr Justice Anthony Vella in CM & RB vs SM & MM. The plaintiffs are Italian and the defendant, their daughter, is married to a Maltese national. The defendants have a daughter who is three years old. The defendants lived with the plaintiffs in Italy for a number of years. After the birth of their grand-daughter they developed a strong bond with her until 2017, when their daughter, husband and grand-daughter returned to Malta. From then on, they were cut off from their grand-daughter, even when they travelled to Malta.

They argued that although the parents have the primary care and custody of the minor child, there is no legal justification for the grandchildren not to have a healthy relationship with their grandparents. This was established in European Court for Human Rights in Neli Vocheve vs Georgios Babanarakis decided on 31 May 2018. The Court held: “It must be noted that ‘rights of access’ are defined broadly, encompassing in particular the right to take a child to a place other than that child’s habitual residence for a limited period of time. …That definition does not impose any limitation in regard to the persons who may benefit from those rights of access. …Regulation No. 2201/2003 does not expressly exclude a request made by grandparents for rights of access to their grandchildren from coming within the scope of that regulation.”

The plaintiffs asked the Court to allow them to have access to their grand-daughter by establishing days and time when this can take place. The defendants filed a statement of defence in which they held that there were similar proceedings in Italy which are now final and therefore, this case cannot be heard. They claimed also that the plaintiffs do not have a juridical interest in this case, since the law does not give a legal remedy. Furthermore, the defendants pleaded what the plaintiffs requested in a threat to public order because it would establish a new norm for grandparents to have right of access, a precedent in our legal system. Mr Justice Vella considered these pleas. With regard to whether the case is res judicata (final), the Court noted that the Italian Court did not enter into the merits of the case but limited itself to lack of jurisdiction since the child was in Malta. As to whether the grandparents have a juridical interest, the defendants accepted that the plaintiffs did have an emotional and general interest in seeing their grand-daughter but all the same they did not have a juridical interest emanating from any law. The plaintiffs did not quote from any article of the law which allows them to file an action with these claims.

On the other hand, the plaintiffs held that their right to file a claim for access is derived from case-law of the European Convention of Human Rights. This area was described by the European Court of Human Rights in Valeheve vs Barlanakis decided on 31 August 2018, as a grey area. Even though this is a ‘grey area’, it does not mean that Courts should not take into consideration the developments that occur in society and that family ties may give rise to uncertainties concerning the existence of rights of access by persons other than the parents, such as grandparents. In Mareks vs Belgium, decided on 13 June 1979, the European Court of Human Rights held that “family life” includes at least the ties between near relatives, for instance those between grandparents and grandchildren since such relatives may play a considerable part in family life.

Article 8 of the European Convention of Human Rights provides “Everyone has the right to respect for his private and family life, his home and his correspondence”. This extends to family relationships such as between grandparents and grandchildren. Neil Valcheva -v- Georgios Babanarkis, decided by the Court of Justice of the European Court on 31 May 2018, interpreted Regulation 2201/2003, which is known as the Brussels IIa. The Court held that “It must be noted that the right of access’ are defined broadly, encompassing in particular the right to take a child to a place other than that child’s habitual residence for a limited period of time”.

The right of grandparents is not contrary to this Regulation. The Court pointed out that this Regulation takes precedence over domestic law. Maltese law does not contemplate access rights of grandparents and therefore, the interpretation given to the Regulation should prevail. The Court then moved to reject the plea.

As to whether this case ran contrary to public order, the Court held once the European Courts have ruled in favour of Courts considering whether grandparents having access to minor grandchildren, then those judgements form part of Maltese case-law also. Regulation 2201/2003 is part of Maltese legislation and as such, the Court has to allow grandparents to file actions as the plaintiffs have done. The supreme principle applied by all Courts is that the best interests of the children prevail and therefore one must see whether access of grandparents to minor children is in their best interest.

Therefore, any decision that is taken by the Court, has to have the principle that the interest of the children prevail. This is reflected in the Convention on Contact concerning Children and Convention on the Rights of the Child. Article 149 of the Civil Code allows the Court to give any direction as regard to the person or the property of the minor. Therefore, the right of access of grandparents is not automatic and must be given in the best interest of the child. This plea was also rejected. The Court ordered that the case continue to be heard on the merits.

Av. Malcolm Mifsud


Mifsud & Mifsud Advocates 

This article may also be accessed on Malta Today.

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