Yes the Hague Convention came into force on 01 January 2012 in Malta

1.1 Which law applies to questions of custody and legal representation of a minor? What criteria are used to determine the applicable law?

The criteria used to determine the applicable law for matters of custody and legal representation are regulated by the provisions set out in the Hague Convention; notably, Article 16 § 1 and Article 17 of the Convention set out that the law of the State on whose territory the minor has his/her habitual residence applies to these matters.
Concerning questions falling outside the scope of application of the Hague Convention following Article 4 of the Convention (e.g. emancipation), national law, that is the Civil Code, Chapter 16 of the Laws of Malta will apply.

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

Concerning the international jurisdiction, if the minor has its habitual residence in a Member State of the EU bound by Council Regulation (EC) No 2201/2003 (Brussels IIa Regulation), the application of this Regulation will prevail over both the Hague Convention and Private International Law rules. Thus, Article 8 of the Regulation in general sets out that the international jurisdiction will belong to the Courts of the Member State where the child has its habitual residence.

If the minor has its habitual residence outside the European Union but in a State  party to the Hague Convention, the international jurisdiction will be attributed to the judicial and administrative authorities of the Contracting State of the habitual residence of the child, in order to take measures directed to the protection of the child’s property or person (Article 5 Hague Convention).

If  the minor has its habitual residence outside the EU in a State which is not party to the Hague Convention, national Private International Law rules will be applicable in order to determine the international jurisdiction.

In Malta, the competent court in cases of custody and representation of minors is the Civil Court (Family Section)

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

Same answer as above. See under point 1.2

In Malta a minor attains majority upon reaching the age of 18 years.

A minor may, however, be emancipated to trade under Article 9 of the Commercial Code and in such a case he/she shall be deemed to be a major with regard to obligations contracted by him/her for purposes of trade. Where a minor has attained the age of sixteen years and has been authorised under Article 9 of the Commercial Code to trade, or not being a trade to perform certain acts of trade, such minor shall in regard to all matters relating to his/her trade, or in regard to such acts be considered as being of legal age

2.1 Is it possible for the legal capacity of a minor to be extended in some cases (e.g. right to get married, right to make last will)?

Yes, a minor who has attained the age of 16 years may get married with the consent of his/her parents or any person having parental authority over him/her, or if such persons do not consent, with the consent of the court of voluntary jurisdiction within whose jurisdiction the minor resides, as results from Article 3 of the Marriage Act (Chapter 255 of the Laws of Malta). Upon marriage the parental authority of the parents over a child automatically ceases as can been seen in Article 150 of the Civil Code (Chapter 16 of the Laws of Malta)

Upon achieving the age of 16 years a minor may also enter into a will.

The general right of custody of a minor including the right to represent the child in all civil matters and the right to administer the property of the child vests in both parents jointly.

Upon legal or judicial separation of parents, the Court (Civil Court – Family Section) shall have the right to direct to which of the spouses custody of the children shall be entrusted, the paramount consideration being the welfare of the children. In such a case, if the Court considers it to be strictly necessary, it may place the child in the custody of third parties.

3.1 What is the scope of the right of custody?

The right of custody is not clearly defined under Maltese law. However, upon separation/divorce of the parents, the custody of the children may be assigned to either one of the parents or to both parents jointly. The parent retaining the right of custody over the minor will generally have the right to take all decisions relating to the minor, barring the right to apply for a passport in the name of the minor and the right to choose where the minor is domiciled.

Therefore generally, the scope of custody refers to the decisions which are taken for the care and wellbeing of the child and does not refer to the time the child is required to spend with each parent.

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

3.2.1 On who’s proposal and when the decision on appointment of custody is made?

The Civil Code of the Laws of Malta in Article 158 states that any minor whose parents have died or have forfeited parental authority (the right to take care and decide for their children) and who has not married, is subject to be placed under tutorship until he/she becomes of age or marries.

Article 159 continues to state that the appointment of a tutor is made by the Court (Civil Court –(Family Section) on the demand of any person and in appointing a tutor the court shall take into account any provisions contained in the will of either of the parents of the child relating to the tutor.

3.2.2 Is the competent authority free in its choice of a new custodian?

Article 160 of the Civil Code states that where among the relatives of the minor there are competent persons, the court shall appoint one of such persons, preference being given, subject always to the best interest of the child, to the nearest relative by consanguinity.

3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

Article 161 of the Civil Code states that it is possible for the Court to appoint more than one tutor should it wish to do so. Where more than one tutor has been appointed, the court may at any time, either on its own motion or upon the demand of any of the tutors, specify the respective duties of each tutor. However, until such time as particular duties have been assigned to each of the tutors, each one shall have all the powers and duties of a tutor and they shall all be jointly and severally liable for the acts of each one of them.

Where any of the tutors die or cease to be a tutor, the tutorship shall be exercised by the other tutor or tutors unless the Court of its own motion or upon the demand of any person has appointed another tutor in his stead.

3.3 How and by whom will the right of cutody be determined if the parents are arguing about it? Is there a difference between married and unmarried couples?

Disputes over parental authority and custody of a child whether between married or unmarried parents are decided by the Civil Court (Family Section)

3.4 May the right of custody be transferred to another person by means of a power of attorney?

No, Maltese Law does not provide for this possibility.

Parental authority is vested in both parents jointly which means that the parents jointly represent their children born or to be born in all civil matters and that they administer their children’s property jointly.

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?

4.1.1 On who’s proposal and when the decision on appointment of a legal representative is made?

4.1.2 Is the competent authority free in its choice of a new legal representative

4.1.3 Can the right of legal representation belong to several persons? Is it possible to have different representatives for different areas?

If one of the parents dies, legal representation which is included in parental authority under Maltese law will be vested in the other parent.

If both parents pass away, a tutor will be appointed as specified in section 3 above and he/she will have the legal representation of the child. Therefore vide replies in section 3 above.

4.2 Are there any restrictions / extensions for the legal representative(s)?

4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?

A legal representative may perform most acts on behalf of a minor but he/she may not enter into a will on behalf of a minor, as under Maltese law no person may appear on behalf of someone else to enter into a will.

A legal representative cannot take the decision as to whether a minor should be married or not. However, for a person who is over the age of sixteen (16) years but under majority age (in Malta eighteen (18) years) to be married, the consent of the legal representative is required.

4.2.2 Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible for both parents to have custody but for only one to have the right of representation in transactions with some property of a minor?

When both parents are alive, parental authority and therefore the right to custody and the right to represent the minor in transactions is generally vested in both parents.

4.2.3 Is it required that all legal representatives conclude transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?

Article 136 (2) of the Civil Code states that acts of ordinary administration may be performed by one of the parents on their own. However, the acts of extraordinary administration which are mentioned in Article 136 (3) of the Civil Code must be performed by both parents together.

Also, in cases where Court authorisation is required to perform a particular transaction, such as in the case of disposal of immovable property or burdening the property of the minor, the Court may decide that the representation of the minor for that particular case ONLY will be vested in one of the parents instead of both.

In cases of acceptance of inheritance in the name of minors, Article 137 of the Civil Code states that any inheritance devolving on the children, shall be accepted by the parents with the benefit of inventory, unless such inventory is dispensed with by the court. If one of the parents is unable or unwilling to accept such inheritance, the inheritance may be accepted by the other parent with the authority of the court. If both parents are unable or unwilling to accept such inheritance the court may, upon the demand of the child or of any of his relatives, authorise the acceptance thereof either by the child him/herself, if he/she has attained the age of fourteen years, or otherwise by a special curator to be appointed by the court. This indicates therefore that there are very specific limited and particular cases where one parent may act on his/her own, but only with Court approval.

4.2.3.1 Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).
See above.
4.2.3.2 Name the legal transactions (e.g. waiver of succession) into which the legal representatives may enter on behalf of the minor only jointly (e.g. both parents).

The above-mentioned acts of extraordinary administration are:

(a) the alienation of movables by nature, including motor vehicles for the purpose of profitably investing the proceeds thereof;

(b) the collection of capital that may become due;

(c) the granting of personal rights of enjoyment over immovable property;

(d) the acceptance of an inheritance, legacy or donation in the name of the child;

(e) the partition of movables by nature;

(f) acts which require the authorisation of the court in terms of sub-article (4) of this article which include the alienation of immovables or movables by operation of law belonging to the child, or contracting loans or other debts or hypothecating or pledging of property, entering into suretyship, entering into compromise or submitting a dispute to arbitration
4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married?

Whether the parents are married or not makes no difference to the requirements of representation.

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction to be approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?

4.2.4.3 In case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law is denied?

Yes there are certain cases in which legal representation is restricted in the sense that the legal representatives will require the consent of the Civil Court (Family Section) before appearing on behalf of a minor.

Article 136 (4) of the Civil Code also states that the parents may not alienate immovables or movables by operation of law belonging to the child nor may they contract loans or other debt, on his/her behalf hypothecate or pledge his/her property, enter into a suretyship, enter into any compromise, or submit a dispute to arbitration except in case of necessity, or manifest utility and with the authority of the court and in any such case the court may, at the request of the parents, authorise one only of the parents to represent the child on the relative deed.

In cases where court approval is required, an application would need to be made in the relative court (Civil Court – Family Section) wherein the parents or the tutor request authorisation from the Court to appear on the particular authentic notarial document on behalf of the child and all necessary details of the transaction would need to be given to the Court who will then decide whether the transaction is in the best interest of the child or not. In such cases, approval of the Court must be given before the transaction, especially if the transaction is one which entails the publishing of an authentic notarial documents. In this case, the particular court decree authorising the transaction would need to be attached to the authentic notarial document itself as proof of the Court’s consent.

If an authentic notarial document is published without the necessary Court approval, the authentic notarial document can be declared null. Article 138 Civil Code however states that in this case nullity thereof may only be set up by either parent or by the child or his heirs or other person claiming on his behalf.

4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.

A tutor also may not unless he/she has the authority of the competent court;

• Collect or transfer any capital belonging to the minor
• Take money on loan except in case of urgency
• Accept or renounce any inheritance
• Accept any donation or legacy subject to any burden
• Refer any matter to arbitration
• Effect any compromise
• Alienate, hypothecate or make any emphyteutical grant of immovable property
• Let out property for a time exceeding eight (8) years in the case of rural property or four (4) years in the case of urban property or the ordinary time according to usage in the case of movables.

Legal representatives of a minor are also restricted from accepting any inheritance for a minor unless this is accepted with the benefit of inventory, unless such inventory is dispensed with by the Court.

4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)? Please describe the appropriate procedure for resolving the problem if applicable (e.g. nominating another representative, court’s approval).

Also, as stated in section 4 above there are some functions which may be performed by one parent jointly and others which require joint representation by both parents (Vide section 4)

Whether the parents are married or not would make no difference to the legal representation they have over their child.

In case of conflicting interests between the children and their parents or either parent, or between the children and their tutors, a relative application may be made to the competent court requesting it to nominate special curators for the circumstances.

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons who have the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

Parental authority can be suspended and therefore a parent would be restricted from performing his/her actions in relation to a minor if when the minor inherits property, the parent who has the duty to grant a general legal hypothec for the value of the inheritance in favour of the minor, and this in the interests of the proper administration of the child’s inheritance, does not do so. If the parent does not register such hypothec within 4 months from the day in which the need for the hypothec arises, then the parental authority would cease.
The parent may then apply to the Court to be reinstated in his/her parental authority  upon his/her performing the act which caused the loss of authority.

4.4 May the right of representation be transferred to another person by means of a power of attorney?

No, this is not catered for under Maltese law.

5.1 Does the law provide some kind of document, that gives evidence of the right of custody and/or representation?

5.2 Is there any other kind of document, that proves the right of custody and/or representation?

A tutor who has been appointed by the Court to exercise parental authority over a minor will have a Court decree issued to him/her which he/she will then use to prove that such tutorship was granted to him/her.

6.1 What are the requirements for the formal validity of such a consent/permission/authorisation?

For a child to travel internationally under Maltese law, both parents need to grant consent. There is no specific requirement for the formal validity of such permission. However, usually, if the child is travelling with just one parent, the other parent would sign a document indicating consent and this document would be carried along with the child’s passport.

Part 1: Protection measures for adults in loss of capacity

Under the Maltese legal system there are two measures for the protection of adults who have suffered a loss or reduction in mental capacity – Guardianship or Interdiction and Incapacitation. 

Guardianship is established under article 188A et seq. of the Civil Code, Chapter 16 of the Laws of Malta. The law provides that an adult who has a mental disorder or other condition, which renders him or her incapable of taking care of his or her own affairs, may be subject to guardianship. It continues to state that to the extent possible, the parents of a person of age, with disability, with a mental disorder and with another condition, which makes such person incapable of taking care of his or her affairs, shall first seek to place the person with disability under guardianship before seeking the interdiction or incapacitation of that person. 

Guardianship is therefore the law’s preferred method to protect adults in loss of capacity, and this since guardianship ensures that whenever possible the guardian in taking the decision, will try to respect the will of the person subject to guardianship (Article 188C (1) (a) Civil Code, Chapter 16 of the Laws of Malta). It is, however, the guardian who takes all decisions on behalf of the individiual.  Guardianship orders are reviewed periodically by the Guardianship Board. 

A guardian is appointed by means of a Guardianship Order issued by the Guardianship Board and the guardian will have all the powers to act instead of the person with whose guardianship he or she has been entrusted. A guardian can decide to apply to take care of the personal welfare, the financial matters and/or the property management of the adult in question.

In certain more severe cases, a person may be Interdicted or Incapacitated (Article 189 et seq. of the Civil Code, Chapter 16 of the Laws of Malta). An adult who has a mental disorder or other condition which renders him or her incapable of managing his or her own affairs may be subjected to interdiction or incapacitation. 

In interdiction or incapacitation a curator is appointed to manage the property of the person interdicted. A curator is appointed for a maximum period of three years, which is renewable. An application to interdict or incapacitate a person is to be presented to the Court of Voluntary Jurisdiction and the Court after examining the proof and witnesses will decide whether to interdict or incapacitate a person. 

If the Court finds that there isn’t enough basis to order an interdiction, it can decide to order that the person is incapacitated. Interdiction generically involves being restrained from doing any civil act without the aid of a curator whilst incapacitation refers speficially to the prohibition from suing or being sued, effecting any compromise, borrowing any money, receiving any capital, giving a discharge, transferring or hypothecating his or her property or performing any act other than an act of mere administration, without the aid of a curator which would be appointed in the same decree.  

Both guardianship and interdiction/incapacitation can be requested by the spouse of the adult with loss of capacity or a relative of the adult with loss of capacity and in absence of these, in case of a mental disorder or other condition which renders a person incapable of managing his or her own affairs, by the State Advocate (Article 521, Code of Organization and Civil Procedure, Chapter 12 of the Laws of Malta).

Part 2: The possibilities of anticipating a loss of future capacity

Maltese law caters for the possibility of having an enduring power of attorney. An enduring power of attorney provides for the possibility to appoint a trusted person to act on one’s behalf in case one loses mental capacity at a future date.  

An enduring power of attorney, under Maltese law known as a mandate given in anticipation of  incapacity, has to be drawn up by means of an authentic act before a notary in the presence of two witnesses (Article 1864A Civil Code, Chapter 16 of the Laws of Malta). This may only be drawn up following a medical declaration that circumstances so require, and that is in the best interest of that particular person to draw up such a power of attorney. 

Such a mandate may therefore only be given if there is reasonable knowledge and anticipation that the person drawing up the mandate will not be fully mentally capable to manage his or her assets in the future. 

This is a preventative power which is to be distinguished from the ordinary powers given by an ordinary mandate which would terminate with the loss of capacity of the principal but are specifically drawn up to foresee for a time when there is loss of capacity of the principal . 

The actual performance of the mandate is therefore conditional on the actual incapacity occurring and the mandatory may only start exercising his or her powers after approval is obtained from the Court of Voluntary Jurisdiction. The Court also has the power to impose any conditions it may deem fit.