By Dr Analise Magri – Junior Associate
Precautionary acts, also known as precautionary warrants, certainly need no introduction. These measures, purposely designed in order to safeguard one’s position prior to a pronouncement of a definitive judgment on the merits of the case, have become common tools which various litigants opt to resort to and issue against their seemingly defaulting counterpart. Though much has been said about the warrant of prohibitory injunction, not much attention is given to the warrant of impediment.
Just like any other warrant of prohibitory injunction, this precautionary act aims at restraining someone from carrying out an act which is detrimental and prejudicial to the person who issues the warrant. As stipulated by article 877 of Chapter 12 of the Laws of Malta (the Code of Organization and Civil Procedure), such a warrant is issued in order to restrain any person from taking any minor outside of Malta. More often than not, a warrant of impediment is resorted to between spouses or between the parents of a particular child in an attempt to ensure that the minor remains in the country.
A person interested in suing out a warrant of this sort, has to do so by means of an application on a legally prescribed form, which has to be confirmed on oath and contain various requisite details. Such details shall include the name and surname of the minor and any other particulars that may be established by regulations, so as to enable the persons served with the warrant to establish the identity of the minor. As a matter of fact, a photo of the minor is quite often attached to the same application in order to ensure that the minor is properly identified. Moreover, the applicant filing the warrant also ought to state the reasons why he is making such a request to the Court.
For a person to have a warrant of impediment issued successfully, she or he must attain the prerequisites applicable to any other warrant of prohibitory injunction; namely, that the warrant must be issued in order to preserve the rights of the applicant and that prima facie (at face value) such person must appear to possess such right. In such a scenario, these criteria, which must be cumulatively fulfilled, denote that the person seeking the issuance of the warrant has a real fear that the minor will be taken out of the country by another person (whether a spouse, partner, or any other third person) who has no intention of returning the same minor. In fact, the law states that the warrant shall be served on the person or persons having, or who might have, the legal or actual custody of the minor enjoining them not to take, or allow anyone to take, the minor out of Malta, who would then have ten days in order to file a reply thereto.
Does this mean that during this interim period, the person against whom the warrant had been filed can freely travel with the minor? The answer to this question is ‘no’. Following the filing of a warrant of impediment, very often the presiding Judge issues an interim order which accedes the injunction requests for a provisional period – up until the request made in the warrant is decided in a definitive manner. As a matter of fact, after the warrant is filed with the Court Registry, other parties are also served; namely, the Director of Passports and the Commissioner of Police. Such a process is often straightforward when the minor whose travel is being prohibited does not hold a passport. The same does not always apply in the contrary scenario. If, before the service of the warrant on the officer charged with the issue of passports, a passport in respect of the minor had already been included in the passport of another person, such officer shall take the steps necessary to withdraw the said passport in respect of the minor, and of any other passport which includes the name of the minor, and to delete the name of the minor from such passport. However, with Malta being part of the Schengen Agreement, this provision is hard to enforce because there is no need to have a passport in order to travel to States within the Schengen Area.
When the written part of the procedure is deemed concluded, the Court would have already set a date and time in order to hear the parties make their own oral submissions as to why the warrant should be upheld or rejected altogether, following which the Court will pronounce its final decree during the sitting or otherwise in chambers. The court shall decide on its merits within the shortest time possible, but not later than 1 month from the day when the warrant had been filed and confirmed on oath, and the parties have been duly notified. It is important to emphasise that the decree issued by the Court, irrespective of whether it upholds or rejects the request, cannot be appealed from and would be considered as a final decree on the warrant of impediment.