FOURTH SECTION
\nDECISION<\/p>\n
Applications nos. 42825\/17 and 66857\/17
\nSharon Rose ROCHE against Malta
\nand Kaden Mario ROCHE against Malta<\/p>\n
The European Court of Human Rights (Fourth Section), sitting on 12\u00a0June 2018 as a Committee composed of:<\/p>\n
Georges Ravarani, President,
\nVincent A. De Gaetano,
\nMarko Bo\u0161njak, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n
Having regard to the above applications lodged on 2 June 2017 and 5\u00a0September 2017 respectively,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant in the first case, Ms Sharon Rose Roche, has dual, Maltese and British, nationality. She was born in 1968 and lives in Nadur (Gozo).<\/p>\n 2.\u00a0\u00a0The applicant in the second case, Mr Kaden Mario Roche, also has dual Maltese and British, nationality. He was born in 2011 and lives in Nadur (Gozo). The application on his behalf was lodged by his mother, the first applicant.<\/p>\n 3.\u00a0\u00a0They were represented before the Court by Dr A. Formosa, Dr\u00a0L.\u00a0Formosa, lawyers practising in Victoria, Gozo and Dr T. Azzopardi, a lawyer practising in Valletta, Malta.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 4.\u00a0\u00a0The facts of the case, as submitted by the applicants, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0Background to the case<\/em><\/p>\n 5.\u00a0\u00a0A certain D.M.R., a British citizen, and the first applicant were married in Gozo, Malta, on 27July 2007having first met a year and a half before. At the time of their marriage both lived and worked in the\u00a0United\u00a0Kingdom (hereinafter, \u201cthe U.K.\u201d), but frequently holidayed in Malta.<\/p>\n 6.\u00a0\u00a0The first applicant owns a farmhouse in Xag\u0127ra, Gozo,and co\u2011owns with D.M.R. a house in Nadur, Gozo.<\/p>\n 7.\u00a0\u00a0Their son, the second applicant, was born in Gozo on 1\u00a0October 2011.<\/p>\n 8.\u00a0\u00a0On 15August 2014 the first applicant flew to Malta on a one\u2011way ticket from Birmingham accompanied by the second applicant.She had previously informed her husband that she needed to go to Malta for some time to assist her mother who had to undergo a medical intervention. The first applicant kept postponing her return to the U.K. until early in September of the same year, when she informed her husband via e\u2011mail that she would not be returning, that she would be seeking an end to the marriage and that she intended to live in Gozo.<\/p>\n 9.\u00a0\u00a0The first applicant subsequently initiated mediation proceedings and on 12 November 2014 she was granted temporary sole custody of the second applicant, later confirmed by a decree of 3 March 2015.<\/p>\n 10.\u00a0\u00a0D.M.R. had in the meantime already requested the Central Authority in the U.K. to ask the corresponding authority in Malta to proceed with an application in terms of Article 8 of the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter, \u201cthe Hague Convention\u201d).<\/p>\n 2.\u00a0\u00a0The Hague Convention proceedings (10\/2015)<\/em><\/p>\n 11.\u00a0\u00a0On 2 February 2015 the Director for Social Welfare Standards (Malta), representing the Central Authority in Malta for the purposes of the Hague Convention (hereinafter, \u201cthe Director\u201d) lodged an application (in accordance with the Child Abduction and Custody Act, Chapter 410 of the Laws of Malta, in terms of Council Regulation no.\u00a02201\/2003 \u2013 see paragraph 74 below) before the Court of Magistrates (Gozo), Superior Jurisdiction (Family Section), asking the court to return the minor child to the U.K. The court was further asked to make the necessary arrangements for the return of the minor and to order that he be accompanied by the police or other relevant entity should the respondent fail to co-operate.<\/p>\n 12.\u00a0\u00a0The first applicant objected to the request, noting that the requisites of Article 27 of Chapter 410 of the Laws of Malta, and of Council Regulation no.\u00a02201\/2003 did not subsist. In particular she noted that i) the habitual residence of the child was not the U.K.; ii) there had been no wrongful detention or removal since the father had had no custody rights over the minor child these having been vested in the first applicant by the Maltese courts in proceedings in which D.M.R. was participating; iii)\u00a0D.M.R. started these proceedings in retaliation; iv) there was a grave risk of psychological harm if the child was returned; and v)\u00a0that return would constitute a breach of the child\u2019s right to private and family life.<\/p>\n 13.\u00a0\u00a0On 27 March 2015 the court accepted the first applicant\u2019s request to appoint a counselling psychologist to assess the minor child for the purposes of Article 13(b) of the Hague Convention.<\/p>\n 14.\u00a0\u00a0The court heard evidence from both parents and from the witnesses called by the first applicant, and took also in account affidavits, ex-parte reports and other documents produced by the parties. It also examined the court appointed expert\u2019s report, confirmed on oath, and the written submissions of the parties represented by counsel.<\/p>\n 15.\u00a0\u00a0By a decree of 9 June 2015, confirmed on 10 July 2015, the court dismissed the first applicant\u2019s (respondent in the case) conventional complaint (under Article 8) as being premature.<\/p>\n (a)\u00a0\u00a0First-instance judgment<\/p>\n 16.\u00a0\u00a0By a judgment of 24 July 2015, the court rejected the request for return.<\/p>\n 17.\u00a0\u00a0In relation to the respondent\u2019s plea concerning the (i) habitual residence of the minor child not being the U.K., the court noted that although both the [Hague] Convention and the [EC] Regulation made this one of the requirements for a return of the child, neither provided a definition of \u201chabitual residence\u201d for the purpose of return proceedings. On being called in to define this concept, the European Court of Justice noted that in the absence of any express reference to the law of the Member States, the term \u2018habitual residence\u2019 was an autonomous concept. If national law were to define that concept, the free movement of judgments would be hindered as some Member States might have a definition of \u2018habitual residence\u2019 which was too broad, whilst others might choose one which was too narrow, leading to situations where several courts of different Member States claimed jurisdiction or, conversely, where no court was willing to assume it. It held that the concept of \u2018habitual residence\u2019 should be shaped in light of the best interests of the child.<\/p>\n 18.\u00a0\u00a0In the present case, the court held that the habitual residence of the child had to be established with regard to the situation as existing prior to the removal of the child from the U.K. and not afterwards. The evidence produced showed that the couple was living in Birmingham, U.K., in a house owned by D.M.R. even before he married the first applicant. Both spouses had a full\u2011time job in the area. D.M.R. had two other children (thirteen year old twins) from a previous relationship, who lived with their mother, but visited him for sleepovers on alternate weekends. The first applicant\u2019s son was born in Malta, as his mother felt that she would get better treatment there. However, soon after the birth she returned to the U.K. and the child was brought up there. When he was only four months old, the child was sent to a nursery, to be looked after, while both parents were at work. Up until 15\u00a0August 2015, the couple only visited Malta, together with their child, for short visits. These circumstances left no doubt as to the fact that the U.K. was to be considered the habitual residence of the Roche family.<\/p>\n 19.\u00a0\u00a0As to her plea concerning (ii) custody rights, the court noted that under Article 2(1) of the Children Act of the U.K. (1989) \u201cwhere a child\u2019s father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child.\u201d According to Article\u00a02.11(a) of the [EC] Regulation, a removal or retention is considered wrongful where \u201cit is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention.\u201d Since there was no evidence of an acquired judgment or agreement with regards to the rights of custody, the present case had to be considered governed by the law of England above-indicated. As to the temporary measure determining responsibility for the child while he was still on the island [Malta], during mediation proceedings before the local courts, the court recalled that under Article 17 of the [Hague] Convention the sole fact that a decision relating to custody had been given in, or is entitled to recognition in, the requested State was not a ground for refusing to return a child.The position had also been confirmed in a similar case before the Civil Court (Family Section).<\/p>\n 20.\u00a0\u00a0As to the plea regarding (iii) the consent for removal and acquiescence in the retention of the child \u2013 on the basis that the father never objected to his wife\u2019s visit to Gozo on 15 August 2015 and her taking their child with her \u2013 the court noted that this was the case; nonetheless the father was taken completely by surprise when he learned that his wife was not returning to the U.K. and intended to stay in Gozo with their child. This clearly showed that his consent was only for a temporary visit to the island so that his wife could take care of her mother during her convalescence. The consent was therefore not clear and unequivocal as required by international jurisprudence.<\/p>\n 21.\u00a0\u00a0The court noted that the first applicant argued that her husband then acquiesced to the retention of the child on these islands, as he only requested the present proceedings in December of 2014,when his child had been in Gozo since August; and that he had accepted the jurisdiction of the Maltese courts when he participated in mediation proceedings initiated by the first applicant and even visited his son, with his wife\u2019s approval, while on the island. In this connection the court noted that the fact that the father was trying to reach an amicable solution to this problem did not amount to acquiescence. Furthermore, it was only natural for him to want to see his son, and his contacts with his wife for such a purpose should not be interpreted as amounting to acquiescence.<\/p>\n 22.\u00a0\u00a0As to the plea concerning (iv) the grave risk or intolerable situation, defence under Article 13(b) of the [Hague] Convention, the court referred to Article 12 and 13 of the [Hague] Convention, applicable to the present situation, as the child had been less than a year on the island, and to Baxter v.\u00a0Baxter [15 September 2005] where the American Court of Appeal explained that: \u201cto meet her burden under the Article\u00a013(b) exception, the respondent must establish that the alleged physical or psychological harm is a great deal more than minimal\u201d. Indeed, the harm must be \u201csomething greater than would normally be expected on taking a child away from one parent and passing him to another\u201d. In the present case to substantiate this defence, the first applicant had exhibited two ex\u2011partereports of psychologists who examined the situation from information supplied by the first applicant and after visiting the child, who were of the opinion that the child should not be returned. The court\u2011appointed expert agreed with these opinions. The court noted that the experts concurred in the view that the child would suffer psychological harm if he were to be separated from his mother and returned to the U.K. to live with his father. The first applicant had made it abundantly clear that she was unwilling to go back to the U.K. where she would be on her own, had no job and had nowhere to go. All her immediate family resided in Malta, she had settled in her own home in Gozo, and had a good job and could even work from home, to be in a better position to take care of her son. On the other hand D.M.R. had a full time job and it was not clear who would look after the minor. Further, the most worrying aspect of returning the child to live with his father concerned the latter\u2019s alcohol abuse. Quite a few episodes had been recounted of D.M.R. not having full control of his senses when he was under the influence of alcohol, and at times he had even been somewhat violent, though no evidence had been produced of the father ever physically harming his son. These allegations had been very weakly rebutted. Also worrying was the medical conditionwhich D.M.R. was said to suffer from, especially if he would be living on his own with the child.<\/p>\n 23.\u00a0\u00a0Citing Article 11(4) of the Brussels Regulation the court noted that no proof had been adduced that adequate arrangements had been made to secure the protection of the child after his return by the competent authorities in England or by the father himself.<\/p>\n 24.\u00a0\u00a0Referring to Article 13 [of the Hague Convention] the court noted that a three year old child could not express his views on the matter. However, sufficient evidence had been produced to show that he was happily settled in Malta, was attached to his mother and her immediate family and had made good progress at school.<\/p>\n (b)\u00a0\u00a0Appeal judgment<\/p>\n 25.\u00a0\u00a0Both parties appealed. The first applicant claimed that the son\u2019s habitual residence was Malta; that she had been granted sole custody of the child by the Maltese courts; that the father had consented and acquiesced to the fact that the child would remain living in Malta. D.M.R. claimed that no clear or convincing proof had been made to support that return would result in grave and serious harm to the child.<\/p>\n 26.\u00a0\u00a0By a judgment of 30 October 2015 the Court of Appeal rejected the first applicant\u2019s appeal and reversed the first-instance judgment.<\/p>\n 27.\u00a0\u00a0Referring to the elements raised by the first applicant to prove residence and relying on domestic case-law which referred to British jurisprudence, it considered that none of those elements sufficed to show that the child\u2019s habitual residence was Malta. Indeed the parents lived in England for several years and they worked there \u2013 during which time the child was at a nursery in England. They had thus decided to live in England \u201cfor settled purposes as part of the regular order of their life\u201d. In particular the fact that the first applicant had family and property in Gozo, as well as\u00a0that she had given birth to her son there, could not alter that conclusion.The Court of Appeal confirmed the first-instance reasoning that the fact that the Maltese courts had given the first applicant temporary custody did not constitute an obstacle to returning the child in accordance with Article\u00a017 of the Hague Convention.<\/p>\n 28.\u00a0\u00a0As to the father\u2019s acquiescence, the court confirmed that on 1\u00a0September 2014 when the first applicant informed D.M.R. that she would not return he objected \u201cin a clear and unequivocal manner\u201d and insisted on return, so much so that he lodged a request to this effect with the relevant central authority. In the Court of Appeal\u2019s view there was no acquiescence on the part of the father.<\/p>\n 29.\u00a0\u00a0The court noted that in line with the provisions of the Hague Convention, the point of departure was that the return of the minor to his habitual residence was in his best interest, save in exceptional circumstances stipulated in its Article 13. Referring to legal literature on the matter as well as British and domestic case-law and case-law of the European Court of Human Rights (ECtHR), it reaffirmed that the idea of Hague Convention proceedings was to restore the status quo ante and of leaving the issues of custody and parental authority to be determined by the courts that had jurisdiction in the place of the child\u2019s habitual residence in accordance with its Article 19, and only grave and impelling reasons could justify a decision not to return. Nevertheless, following the judgment of Neulinger and Shuruk v. Switzerland ([GC], no.\u00a041615\/07, ECHR 2010), it was for the courts to make an in-depth examination of the entire family situation. The Court of Appeal noted that in the present case, the first-instance court had relied solely on the expert reports, and it was clear that the ex\u2011parte experts had understood their mission as being one intended to examine care and custody and not one establishing whether the minor risked serious harm if returned. Those experts had also relied on the first applicant\u2019s allegations, but D.M.R. had strongly denied them during the proceedings. As to the court\u2011appointed expert, she had based her conclusion on a two-hour session with the mother and child, but had never heard or attempted to hear the father. Furthermore, her testimony was entirely based on elements given to her by the mother. It also appeared from her testimony that she understood her role as being one where she had to determine whether the child was happy in Gozo. She had further confirmed that while there was \u201ca very clear and strong bond\u201d, between mother and child, she had been unable to observe the bond between the father and the son or their relationship. She stated that on being shown photos of the father, the child had shown no signs of discomfort. Thus, in the court\u2019s view it had not been shown that clear and compelling evidence of grave risk of harm would ensue.<\/p>\n 30.\u00a0\u00a0According to the Court of Appeal it had been the mother who illegally created a situation of anxiety for the child by removing the child from the U.K., to his detriment, and such a de facto situation could not be endorsed by refusing to return the child. Whether the child would be happier in Gozo than in the U.K. was a matter of care and custody; in the present case, the exceptions provided by Article 13(b) did not apply, and thus the law required that the child be returned. This did not mean that the mother could not move back to England with the child.<\/p>\n 31.\u00a0\u00a0It was the child\u2019s interests which had to be predominant and not those of the mother. It was for the U.K. courts to decide where the child should reside. Indeed it would have been in the child\u2019s best interests if the first applicant had sought to request custody before the U.K. courts, before creating the illegal situation which could have a negative impact on the child. Furthermore, the U.K. had adequate support services which the mother could have sought if in need.<\/p>\n 32.\u00a0\u00a0Noting that the first court had also seemed to focus more on care and custody, as opposed to the Hague Convention criteria, the Court of Appeal reversed the first-instance judgment and ordered that the Maltese central authority make practical arrangements for the return of the child. It further ordered the first applicant to comply with such arrangements, in default of which the arrangements were to be enforced by a court officer with the assistance of the police and social workers.<\/p>\n (c)\u00a0\u00a0Retrial<\/p>\n 33.\u00a0\u00a0A request for retrial of the Hague Convention proceedings lodged by the first applicant was rejected by the Court of Appeal on 17\u00a0May 2016.<\/p>\n (d)\u00a0\u00a0Request for a stay of enforcement of the appeal judgment of 30 October 2015<\/p>\n 34.\u00a0\u00a0Pending the above mentioned retrial request, the first applicant filed a collateral application asking the court to stay the execution of the appeal judgment of 30 October 2015 (see paragraphs 26\u201132 above). The Director objected to the stay.<\/p>\n 35.\u00a0\u00a0By a decision of 18 February 2016, the court noted that as the applicant had instituted constitutional redress proceedings on 11\u00a0November 2015 (see paragraph 37 below), the agreement of 17\u00a0July 2015 (see paragraph 37 below) remained valid and the child could not be returned pending a decision in those proceedings.<\/p>\n 36.\u00a0\u00a0Thus, the court found that the claimant\u2019s request was premature.<\/p>\n 3.\u00a0\u00a0First set of constitutional redress proceedings (59\/2015)<\/em><\/p>\n 37.\u00a0\u00a0Pending the above Hague Convention proceedings, the first applicant lodged constitutional proceedings. On 17 July 2015, in the course of the constitutional redress proceedings she and the representative of the relevant department signed an agreement to the effect that the applicant would withdraw the constitutional redress application, upon a guarantee that in the event of a negative appeal decision in the Hague Convention proceedings, within fifteen days of that decision, she would be able to lodge a new constitutional redress application and the child would not be returned until the determination of such further constitutional redress proceedings.<\/p>\n 38.\u00a0\u00a0In consequence of this agreement the first set of constitutional redress proceedings was withdrawn (\u010beduta) on the same day.<\/p>\n 4.\u00a0\u00a0Second set of constitutional redress proceedings (81\/2015)<\/em><\/p>\n (a)\u00a0\u00a0First-instance<\/p>\n 39.\u00a0\u00a0On 11 November 2015 the first applicant instituted constitutional redress proceedings in her own name, and later (following an authorisation of 13\u00a0January 2016) also in the name of her son, after the acceptance of her request to act as curator ad litem of her minor child. She complained that the judgment of the Court of Appeal of 30 October 2015 (see paragraphs\u00a026\u201132 above) was in breach of Articles 6 and 8 of the European Convention on Human Rights (hereinafter, \u201cthe Convention\u201d). She claimed that that judgment was not in the best interests of the child and that the child had not been heard by the court, nor was a child advocate nominated, as required by domestic law. She argued that if that decision were to be enforced, it would be in breach of Article 8 since she would be denied her right to exercise care and custody and to have a family life with her child; moreover, her son would be denied her care and custody as well as the environment in which he had been developing. Under Article 6 she claimed that her son had not had a fair trial, and that both should be awarded compensation separately.<\/p>\n 40.\u00a0\u00a0The first applicant further asked the court to stay the execution of the return measure until these proceedings were decided.<\/p>\n 41.\u00a0\u00a0In connection with the latter request the respondent replied that they were willing to stay the execution only if the court would hear the case with urgency.<\/p>\n 42.\u00a0\u00a0On 11 December 2015 and 20 January 2016 the first applicant requested the court to appoint a psychiatric expert and a child advocate to represent her minor child, respectively.<\/p>\n 43.\u00a0\u00a0On 25 January 2016 D.M.R. was allowed to intervene as a third party in the proceedings.<\/p>\n 44.\u00a0\u00a0By a judgment of 27 July 2016, after having heard the witnesses and counsel, as well as having regard to the documents and submissions presented, the Civil Court (First Hall) in its constitutional competence, rejected the complaints and found that there had been no breach of the first applicant\u2019s or her son\u2019s rights. It noted that its task was not to decide on the care and custody of the minor or where he should live, nor was it its task to decide the matter decided by the Court of Appeal, as constitutional proceedings where not a further appeal.<\/p>\n 45.\u00a0\u00a0Referring to Article 13 of the Hague Convention, it noted that the child was born in October 2011; therefore, at the time of the constitutional proceedings he was less than five years old, and at the time of the Court of Appeal\u2019s judgment he was only four years old. In line with ECtHR case\u2011law his tender age justified the court\u2019s decision not to hear him. As to the lack of a child advocate, the court noted that in such proceedings it was generally considered that the interests of the minor were well protected by the parent against whom such proceedings were lodged. In the present case it did not appear that his interests were not pursued by the mother and her legal team. It had further to be noted that such proceedings concerned mainly the matter of jurisdiction. Further, given the limited scope of a child advocate in Maltese law, in the present case, the aims it pursued had been attained by means of the expert opinions. Moreover, all throughout the proceedings the court had not been asked to appoint a child advocate. Lastly, the court noted that all the evidence (which it re-examined) had been collected at first\u2011instance and only in exceptional circumstances the Court of Appeal would re\u2011open this stage of the proceedings. There was therefore no violation of Article 6.<\/p>\n 46.\u00a0\u00a0As to Article 8, it noted that the Court of Appeal\u2019s decision did not mean that the first applicant would be separated from her child. Not only could she join him in the U.K. (the child had shown a good sense of adaptability) but more precisely the Court of Appeal had only decided the return of the child to the U.K. \u2013 the jurisdiction which should decide on the care and custody. In the court\u2019s view the extremes of the case of Neulinger\u00a0and Shuruk, cited above, were not present in the instant case.<\/p>\n (b)\u00a0\u00a0Appeal<\/p>\n 47.\u00a0\u00a0The first applicant, in her own name and on behalf of her minor child, appealed claiming that the first\u2011instance judgment should be declared null, the court having failed to reply to her requests of 11\u00a0December 2015 and 20 January 2016 respectively (see paragraph\u00a042 above); and secondly noting that there were a number of failings by that court, namely:<\/p>\n (i) from the judgment it appeared that the court had not understood the scope of the case;<\/p>\n (ii) it had not appointed a child advocate, the minor was thus not represented by counsel, nor was he heard by the court;<\/p>\n (iii) it had failed to make an assessment under Article 8 on the evidence before it;<\/p>\n (iv) it had failed to assess the issues before it and assessed other issues instead;<\/p>\n (v) its judgment would create an unnecessary separation given that the court failed to take into consideration the fact that the issue of care and custody was being dealt with by the Maltese courts;<\/p>\n (vi) it had failed to give consideration to the case of Neulinger\u00a0and\u00a0Shuruk, cited above, and more recent case\u2011law of the ECtHR;<\/p>\n (vii) it had failed to give consideration to the case of B. v.\u00a0Belgium, (no.\u00a04320\/11, 10 July 2012) in relation to expert psychological reports;<\/p>\n (viii) it had failed to assess the case on the basis of all the relevant proof and jurisprudence;<\/p>\n (ix) it (as well as the Court of Appeal) had failed to verify whether there were adequate practical arrangements for the return of the child.<\/p>\n 48.\u00a0\u00a0By a judgment of 16 March 2017 the Constitutional Court rejected the appeal and confirmed the first-instance judgment. It also noted that the first applicant had failed to indicate which pleas concerned her own rights and which those of her son.<\/p>\n As to her claim of nullity it considered that the case concerned the decision of the Court of Appeal; it was thus the situation then which had to be examined, and in any event the failure to decree on those two requests could not lead to the nullity of the judgment. Further the court had decreed on 27 July 2016 that all her requests had been rejected, thus it had decided also her request to appoint an expert. As to the other request, the fact that, later on, the first applicant was authorised to act on behalf of her son rendered useless the appointment of a child advocate given that by then he was represented by counsel; lastly the first applicant had not reiterated her request in any of her further submissions.<\/p>\n 49.\u00a0\u00a0As to the various heads of her second plea, the Constitutional Court considered that it was obvious from the judgment that the lower court had understood its role, irrespective of any more general considerations. As to the failure to appoint a child advocate during the Hague Convention proceedings the Constitutional Court noted that in those proceedings the first applicant had never argued that such a failure would breach the child\u2019s human rights \u2011 nor was it for the court to raise it of its own motion. The Court of Appeal had carefully examined the evidence and the interests of the child, without needing to hear the child himself. It correctly set aside considerations related to care and custody which were not the subject of those proceedings, as did the Civil Court (First Hall) in its constitutional competence.<\/p>\n 50.\u00a0\u00a0On the merits again the first applicant\u2019s arguments related to care and custody as opposed to the issue of return to the country from where the child had been removed. The first applicant did not show in what way her Article 8 rights were breached while she had herself brought about the situation complained of. The lower courts had considered the legality and the effects of the return order, its legitimate aim and whether it was proportionate in the light of the best interests of the child as required by national and international law and case\u2011law. Indeed the latter provided that the harm referred to in Article 13(b) of the Hague Convention had to be proved, and more particular that it could not arise from the separation from the parent who was responsible for the wrongful removal or retention. Further, the return of the child did not amount to an inevitable and permanent separation; it solely sought to return to the status quo\u00a0ante.<\/p>\n 51.\u00a0\u00a0Furthermore, the first applicant was wrong to consider that the question of jurisdiction on care and custody was settled, and in any event the courts examining (or reviewing) the return were not bound by any determination on the matter.<\/p>\n 52.\u00a0\u00a0As to the weight given to the expert reports, those reports were focused on matters which were not the determining factors to make a return decision. Lastly, the Court of Appeal had also given indications as to the arrangements for the return of the child, meaning that it had considered this practical aspect and was satisfied. The same was also confirmed by the third party\u2019s testimony; it thus appeared that there was no fear that such arrangements were not satisfactory.<\/p>\n 5.\u00a0\u00a0Separation and care and custody proceedings (12\/2015)<\/em><\/p>\n 53.\u00a0\u00a0By a first\u2011instance judgment of 21 February 2017, the Court of Magistrates (Gozo), Superior Jurisdiction (Family Section), inter\u00a0alia, pronounced the separation, a mensa et thoro, between the parties for reasons imputable solely to D.M.R., mainly moral and physical abuse on wife and child also as a result of his alcohol problem. It also awarded full care and custody exclusively to the first applicant and detailed access rights for the father.<\/p>\n 54.\u00a0\u00a0Relying on the Court of Appeal judgment of 30 October 2015 (see paragraphs 26\u201132 above), the court noted that D.M.R. had accepted the jurisdiction of the Maltese courts concerning the care and custody of the minor. It thus rejected a request to stay the proceedings pending a final decision on return. After having heard all the parties and the relevant evidence, the court considered that the best decision concerning the child was that he lived with his mother surrounded by her extended family that helped him feel loved and welcome. The court was also convinced that D.M.R. had neither the time (due to his heavy work commitments and his habit of visiting the pub on various nights of the week) nor the will to be granted, and exercise, full care and custody. Indeed in his submissions he did not insist on full care, but on ample access. Moreover, the court could not exclude incidents where the father could be violent with the child as had happened with his other daughters.<\/p>\n 55.\u00a0\u00a0An appeal against this judgment was lodged by D.M.R. and was, in May 2018, still pending.<\/p>\n 6.\u00a0\u00a0Ordinary Proceedings 35\/2016<\/em><\/p>\n 56.\u00a0\u00a0On an unspecified date the applicant had instituted a further set of proceedings asking the court to declare that the Hague Convention proceedings were unlawful and null and therefore without effect. She claimed that the fact that the jurisdiction of the courts where the minor had been \u201cillegally retained\u201d had been accepted by both parents had rendered the return proceedings superfluous.<\/p>\n (a)\u00a0\u00a0Injunction no. 16\/2016 in case 35\/2016<\/p>\n 57.\u00a0\u00a0Pending these proceedings and the second set of constitutional redress proceedings, the first applicant lodged a further request to stay the second applicant\u2019s return.<\/p>\n 58.\u00a0\u00a0By a decision of 24 May 2016 the Court of Magistrates (Gozo) in its superior jurisdiction (General Section) granted the first applicant\u2019s request and issued an injunction staying the second applicant\u2019s return.<\/p>\n (b)\u00a0\u00a0Proceedings on the merits in case 35\/2016<\/p>\n 59.\u00a0\u00a0By a judgment of 2 December 2016, the Court of Magistrates (Gozo) in its superior jurisdiction (General Section) rejected the first applicant\u2019s claim considering that her arguments raised in various jurisdictions had been already subject to a decision and were thus res\u00a0judicata. Indeed the applicant was only trying to reverse that judgment expecting the court to act as a third instance court.<\/p>\n 60.\u00a0\u00a0The first applicant appealed this decision.<\/p>\n 61.\u00a0\u00a0At the same time she also requested the recusal of the judges and, following their refusal, she filed a further set of constitutional proceedings (third set) complaining about the impartiality of the judges delivering this decision \u2013 these proceedings were in May 2018 still pending at first\u2011instance. During the appeal proceedings (before the Court of Appeal in its ordinary jurisdiction) the applicant also filed two further applications, which were refused. In consequence in February 2018 the applicant instituted a further set of constitutional redress proceedings (fifth set) complaining under Article 6. These proceedings were in May 2018 still pending at first\u2011instance.<\/p>\n 62.\u00a0\u00a0By a judgment of 18 April 2018, the Court of Appeal confirmed the judgment of 2 December 2016 (see paragraph 59 above).<\/p>\n 63.\u00a0\u00a0As a result of this judgment, injunction no. 16\/2016, granted on 26\u00a0May 2016 by the Court of Magistrates (Gozo) (see paragraph\u00a058 above) fell through automatically.<\/p>\n 7.\u00a0\u00a0Judicial review proceedings (38\/2017)<\/em><\/p>\n 64.\u00a0\u00a0On an unspecified date the first applicant instituted judicial review proceedings against the Director. She claimed, inter alia, that the latter had acted unlawfully and contrary to the principles of natural justice and procedural correctness and that he abused his power and abdicated his duties by failing to consider that the father of the child had submitted to the jurisdiction of the Maltese courts and by disregarding the judgment granting the first applicant care and custody of the minor.<\/p>\n (a)\u00a0\u00a0Merits<\/p>\n 65.\u00a0\u00a0These proceedings were still pending at first\u2011instance in May2018.<\/p>\n (b)\u00a0\u00a0Injunction no. 16\/2017 (in case 38\/2017)<\/p>\n 66.\u00a0\u00a0Pending the above judicial review proceedings the first applicant also requested the Court of Magistrates (Gozo) in its superior jurisdiction (General Section) to issue a prohibitory injunction to stay the return of the child and prohibit the making of any arrangements for his return. She referred to the fact that she had lodged constitutional redress proceedings challenging the decision of the Court of Appeal of 30 October 2015, as well as proceedings before the ECtHR.<\/p>\n 67.\u00a0\u00a0By an interim decision of 14 July 2017, the court, bearing in mind that the burden of proof for the issuance of a warrant of prohibitory injunction was a prima facie right, acceded to her request.<\/p>\n 68.\u00a0\u00a0The court reiterated that the interests of the child were paramount. It noted the fact that the child had not yet been returned a year and nine months after the judgment ordering his return \u2013 this was a substantial period of time capable of changing the situation and warranting different measures. It further noted the first-instance decision (against which an appeal was still pending) granting the mother care and custody. It further considered that the request made by the father concerning the return of the child had not been aimed at the best interest of the child, especially given the limited participation of the father in the domestic proceedings concerning the matter, namely written submissions. Furthermore, no proof had been submitted concerning any special arrangements put in place to safeguard the best interests of the child, if he had to be returned.<\/p>\n 69.\u00a0\u00a0On 2 May 2018 the Central Authority filed an application requesting the revocation of this injunction, it argued inter alia that under Maltese law and the relevant jurisprudence a prohibitory injunction could not be used to stop the enforcement of a final judgment which was res\u00a0judicata.<\/p>\n 70.\u00a0\u00a0The first applicant opposed the application. In June 2018 a decision had not yet been delivered, the case being adjourned for decree to 21\u00a0June 2018.<\/p>\n 8.\u00a0\u00a0Fourth set of constitutional redress proceedings (36\/2017)<\/em><\/p>\n 71.\u00a0\u00a0In the meantime on 19 May 2017 the first applicant in her name and on behalf of the second applicant filed a fresh set of constitutional redress proceedings complaining about the judgment of the Court of Appeal of 30\u00a0October 2015 (see paragraphs 26\u201132 above). She claimed that returning the child in the current circumstances would be in breach of Articles 8 and 3 of the Convention. She also complained under Article 8 that the Constitutional Court had erred in its judgment of 16 March 2017 (see paragraphs 48\u201152 above), as it had not taken into account all that had happened after the judgment of 30\u00a0October 2015 ordering the return. She also complained under Article 6 that the latter judgment was in contrast with the judgment of 21 February 2017 (see paragraphs 53\u201154 above), and thus in breach of the principle of legal certainty.<\/p>\n 72.\u00a0\u00a0She highlighted that her claim was not res judicata as further happenings had occurred after the Constitutional Court judgment of 16\u00a0March 2017 (see paragraphs 48\u201152 above). Notably, further time had passed, the child was still in Malta and had amply settled there. Furthermore, the issue of care and custody had in the meantime been decided on 21\u00a0February 2017 (see paragraphs 53\u201154 above). Relying on the Court\u2019s case\u2011law she insisted that it was for the court to decide on what was best for the minor at the time of the enforcement of the return decision, and noted that uprooting the child again from his habitual environment would probably have serious consequences for him.<\/p>\n 73.\u00a0\u00a0The first applicant asked the court to allow her to represent her child in the proceedings. The court rejected the request and appointed a child advocate to represent the child.<\/p>\n (a)\u00a0\u00a0Merits<\/p>\n 74.\u00a0\u00a0The case on the merits was in May 2018 adjourned for 6\u00a0July 2018.<\/p>\n (b)\u00a0\u00a0Interim request (447\/2018 in proceedings 36\/2017)<\/p>\n 75.\u00a0\u00a0In the meantime, on 23 March 2018 the first applicant filed an application asking the court to stay the return of the second applicant and to prohibit the Central Authority from making any practical arrangements for the return of the child. She noted that in proceedings pending before the constitutional jurisdictions (see paragraph 71 above) as well as before the ECtHR it was being argued that the return of the child would be in breach of the applicants\u2019 rights. The defendants filed submissions on 5\u00a0April 2018 arguing inter alia that under Maltese law and the relevant jurisprudence a prohibitory injunction could not be used to stop the enforcement of a final judgment which was res judicata and that the applicants\u2019 action amounted to an abuse of process with the aim of avoiding the execution of a final judgment. They also noted that an identical warrant was already in force (see paragraph 67 above). D.M.R., acting as a third party, also made submissions on the line of those made by the authority, and in favour of the execution of the return decision without any further delay.<\/p>\n 76.\u00a0\u00a0Oral submissions were heard on 13 April 2018 whereby the applicants requested that the decision be suspended pending other decisions on the matter being decided in different courts. The court accepted the latter request and the case was adjourned to 27 April 2018.<\/p>\n 77.\u00a0\u00a0On 21 May 2018 the court rejected the applicants request to stay the enforcement of the return decision. It emphasized that its decision was without prejudice to the merits of the case to be decided by the constitutional jurisdictions. The court considered that the applicants had a prima facie right to lodge such a request. However, the State authorities had not confirmed, in open court as required by law, that they realistically intended to proceed with the return. Indeed, there were two other prohibitory injunctions which had been issued on the matter, thus the authorities were in any event precluded from executing the return decision. The court noted that the first applicant had refused to return with the second applicant to the U.K. in 2014, and thus to date it was more the defendants who had suffered prejudice and not the applicants. More importantly, the court considered that it could not issue a warrant of prohibitory injunction against a final judgment, but that the applicants could pursue other remedies intended for the purposes they were after.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 78.\u00a0\u00a0Article 27 of the Child Abduction and Custody Act, Chapter\u00a0410 of the Laws of Malta, in so far as relevant reads as follows:<\/p>\n \u201c(1) Where –<\/p>\n (a) an order is made for the return of a child under Part I of this Act; …<\/p>\n any custody order inconsistent with such order or decision relating to him shall cease to have effect.\u201d<\/p>\n 79.\u00a0\u00a0The Civil Court (Family Section), The First Hall of the Civil Court and The Court of Magistrates (Gozo) (Superior Jurisdiction) (Family Section) Regulations, Subsidiary Legislation 12.20, in so far as relevant, reads as follows:<\/p>\n Regulation 3<\/p>\n \u201c(1) The Minister shall in accordance with article 89 of the Code of Organization and Civil Procedure appoint panels of experts as follows: …<\/p>\n (b) a panel of experts in family law (hereinafter in these regulations called children\u2019s advocates) being persons in possession of the warrant to practice as advocates.<\/p>\n Regulation 12<\/p>\n \u201cThe judge or magistrate, as the case may be, and any judicial assistant who may be assigned to the case under the direction of the Court, shall give all such guidance and directives as they may think fit for the better management of the case.\u201d<\/p>\n C.\u00a0\u00a0International Law<\/strong><\/p>\n 80.\u00a0\u00a0The relevant articles of the Hague Convention, in so far as relevant, are set out in X v.\u00a0Latvia ([GC], no.\u00a027853\/09, \u00a7 34, ECHR 2013).<\/p>\n 81.\u00a0\u00a0Other relevant international material can be found in N.Ts.\u00a0and\u00a0Others v.\u00a0Georgia (no. 71776\/12, \u00a7\u00a7 40-44, 2 February 2016).<\/p>\n D.\u00a0\u00a0European Union Law<\/strong><\/p>\n 82.\u00a0\u00a0The relevant articles of Council Regulation (EC) 2201\/2003 of 17\u00a0November 2003, known as Brussels II bis, are set out in K.J.v.\u00a0Poland, (no.\u00a030813\/14, \u00a7 39, 1 March 2016).<\/p>\n COMPLAINTS<\/strong><\/p>\n 83.\u00a0\u00a0The applicants complain under Article 8 that the domestic courts failed to conduct an in depth examination of the entire family situation and of all relevant factors and failed to assess all relevant interests in line with the Court\u2019s case\u2011law.<\/p>\n 84.\u00a0\u00a0The applicants also complain under Article 6 of the Convention that the domestic court failed to consider the views of the child transmitted through the psychologist reports and to appoint a child advocate for the second applicant, contrary to domestic law, at various instances and jurisdictions.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0Joinder of the Applications<\/strong><\/p>\n 85.\u00a0\u00a0Given their similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 \u00a7 1 of the Rules of Court.<\/p>\n