Diplomatic immunity dismissed in child custody battle

A family court judge has dismissed a plea of diplomatic immunity made by a high-ranking Spanish diplomat, against an injunction preventing him from taking his child abroad.

The diplomat, who is not being named in order to protect the children’s identity, is one of the respondents listed in a case filed by the English mother against the Ministry for Children’s Rights, the Foreign Ministry, the Foundation for Social Welfare Services, the State Advocate, the Spanish Ambassador and the father.

According to the couple’s divorce decree, which was handed down in Germany, the minor children are to reside with their father, but care and custody is shared between the parties.

The father subsequently moved to Malta with the children, due to his work with the Spanish Embassy. The mother also moved to Malta in order to be close to her children, the woman’s initial judicial protest stated.

According to a court decree from July, the woman is entitled to supervised access to her children twice a week for 2 hours.

The judicial protest claims that the Director of Child Protection Services had testified that during the proceedings, the Spanish Embassy and the Foreign Ministry put pressure on Child Protection Services to allow one of the children who had been living with his mother, be sent to live with the father.

Meanwhile one of the minors had been taken abroad by the father without the mother’s knowledge and the mother’s contact with the child had been cut off.

Shortly before a scheduled access appointment with the children, the woman was informed by CPS that the appointment was not going to be held as the father “had invoked his diplomatic immunity.”

The woman’s lawyer, Robert Thake, filed for a warrant of prohibitory injunction to stop the father from taking the couple’s child abroad with him. The father’s lawyer, Etienne Calleja, had in fact argued that diplomatic immunity applied to this case.

But Mr. Justice Anthony Vella, presiding the Family Court, disagreed. “A quick glance at the nature and scope of diplomatic immunity will immediately reveal that such immunity hardly applies to civil domestic disputes between parents,” noted the court in its judgment definitively upholding the injunction, pointing out that the idea behind diplomatic immunity was to avoid envoys from being hindered by local laws in the performance of their duties.

“This does not mean, however, that such immunity is a carte blanche for the diplomat to do as he pleases, or that such a person is above the law, or in Orwellian language, more equal than others,” said the judge.

“[The] Respondent cannot hide behind the thin veil of diplomatic immunity in this case and argue that he is untouchable or above Maltese law,” the court went on, observing that the man had been making it very difficult for the mother to even see her child in accordance with a Family Court decree.

The judge also noted that the couple’s other minor child had already been taken out of the island, “allegedly without applicant’s consent.”

In addition, the fact that the respondent himself had filed for a similar injunction on the mother meant that he had passively renounced his immunity and acquiesced to the jurisdiction of the Maltese courts.

On the merits of the case at hand, the court said it simply had to see whether there were prima facie grounds for the warrant to be provisionally upheld. The judge observed that in a previous sitting, it had transpired that the diplomat was refusing to grant access in accordance with a court decree, pointing out that this was a criminal offence against public order.

“Respondent may believe he has every right to defy a court order,” said the judge, “indeed he may feel aggrieved by such an order granting access to the minor child to the other part. However, once the Family Court has examined the merits in those proceedings and in spite of such an order respondent is refusing to cooperate with the other parent on this matter, the issuing of an injunction prohibiting him from leaving Malta with the child is more than justified in these circumstances.”