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Matthew Vella
When blood is not always thicker than water. A Family Court ruling by Judge Raymond Pace upheld what seems to be the ‘sanctity’ of the Maltese family in a recent ruling over the paternity and custody of a nine-year old child, when a DNA test result was subordinated to the family tie that exists between Sharon Carabott and her legal father John Carabott.
The Court in fact did not uphold a request by Charles Borg to declare that Sharon was indeed his daughter and not Carabott’s, as a DNA Paternity Testing Report showed, and to have the child’s surname changed to Borg as well as granting custody to her mother Simone Carabott, who lives with Borg and is undergoing separation procedures with John Carabott.
The case has in fact revealed that DNA testing is not a sufficiently strong enough tool to overcome paternity battles when a child born into wedlock is concerned. In the case of Sharon Carabott, who was born whilst her parents John and Simone were still married and whose birth certificate indicates that John Carabott is her father, the DNA test was subordinated to the ‘family tie’ which existed between Sharon and her legal father John Carabott.
The Court also ruled that the DNA tests were carried out abusively by Clinipath Services Limited, which conducted the tests on both Sharon Carabott and her elder brother Bruce. The Ministry for Justice and Home Affairs and the Police Commissioner were notified by the Court over the tests carried out by Alexander Gingell of Clinipath, for not asking the permission of John Carabott as the legal father of the children.
The court noted that there were serious doubts on the precautions which had to be taken for the identification of the specimens, and called for ad hoc legislation that would regulate how such tests should be carried out, and which laboratories should be certified to do this.
Challenge discredited
In 1999, Charles Borg asked the Court for paternity of Sharon Carabott after declaring that he had had a long-term intimate relationship with Simone Carabott, his current partner, who is undergoing separation proceedings from her husband.
Borg produced the results of a DNA paternity test conducted on 15 April 1999 which indicated that he was in fact the father of Sharon, supporting his plea to be granted paternity and for custody of the child, who was born in 1995, to be awarded to her mother.
According to law, the legitimacy of a child born in wedlock can be challenged if it is proven that the father and mother were indeed distant from each other for a period of between 300 to 180 days before the birth of the child – a child born in wedlock is in fact decreed by law to be the child of the mother’s husband if this is indicated by the birth certificate and the father is living with the child.
The Court found that the child had been born in wedlock and was considered to be legitimate, and most importantly, her current status was in conformity to the certificate: the child had been brought up by Carabott, as photographic evidence proved, as well as the testimony by Simone Carabott and her mother Mary Deguara attested. It was also shown that Carabott had in fact brought up the child, provided for her needs, and paid for her education all throughout her life.
This confirmation of the status of legitimacy led the Court to declare that, whilst no form of family tie could have developed between the child and Charles Borg, no proof was considered to be admissible in challenging the status of the child’s legitimacy, not even DNA testing. In fact, medical certification could only be considered where the husband of the mother would have neglected his duties as a father.
The law in fact safeguards the legitimate status of children born in wedlock, and subordinates challenges to the legitimacy of child.
Court refuses DNA
Citing the case Nylund versus Finland in the European Court of Human Rights, it was shown that the “right to have biological paternity examined by scientific means was not a right recognised by the relevant national law,” as in the case of Malta. This meant that Charles Borg did not have a right to challenge the paternity of the child because the child was born in wedlock and enjoyed the status of legitimacy, namely those properties which underline filial relation: the father’s surname; that the father treats the child as their own, pays for their education and their maintenance; and that the child is recognised by the family and is recognised as the father’s own by other people.
The family tie was defined as one which takes into consideration relevant factors such as the nature of the relationship with the natural parents and the demonstrable interest in and the commitment by the natural father to the child both before and after the birth.
In this case it was proven that Carabott was the only father present for the child both before and after birth and thereon throughout her life.
Citing the European Court ruling, the Court said “there are reasons of legal certainty and security of family relationships for states to apply a general presumption according to which a married man is regarded as the father of his wife’s children. It is justifiable for domestic courts to give greater weight to the interest of the child and the family in which it lives than to the interest of an applicant in obtaining determination of a biological fact.”
matthew@newsworksltd.com
The names of the parties to this Court case have been changed to protect their identity and that of the children concerned.
Simone Carabott - mother
John Carabott - husband
Sharon, Bruce Carabott - daughter and son
Charles Borg - Simone’s partner
Mary Deguara - Simone’s mother
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