Shared Parenting, Parental Alienation and the European Convention of Human Rights (ECHR) – a case study of Malta with an ECHR perspective
Prof Ivan Sammut PhD (Lond)
Deputy Dean, Faculty of Laws
Head, Department of European & Comparative Law
University of Malta
Ivan Sammut.
This paper/presentation analyses these concepts from the point of view of the Maltese legal system and the Family Court in Malta. First, it depicts the Maltese Family court situation, underlying how one may conclude that certain practices and procedures in Malta infringe Article 8 of the ECHR.
The following section deals with Shared Parenting, Parental Alienation and Human Rights. Then through a case study of a case by the ECtHR against Malta, the paper/presentation explains the hot issues that need to be addressed so that the Maltese Family court falls in line with the ECHR. The final part concludes with recommendations for Malta to align with the ECHR. In this paper/presentation, Malta is a microcosm of many European Family Courts that face similar challenges to be in line with Human Rights regarding child access and maintenance. Finally, reference is made to the ground-breaking case of I.S. and Others v. Malta (App. No. 9410/20 (ECtHR) First Section 18 March 2021.)
The ECtHR reiterates that establishing contact may require preparatory or phased measures. The Court finds it important to reiterate that while its case law requires children's views to be taken into account, those views are not necessarily immutable, and their objections, which must be given due weight, are not necessarily sufficient to override the parents' interests, especially in having regular contact with their child. A child's right to express their views should not be interpreted as effectively giving absolute veto power to children without any other factors being considered. An examination is carried out to determine their best interests. Where possible, the shared-parenting concept is essential to address the matters highlighted by the ECtHR in several of its case law cases.