A child is not made a party to parents' custody case

The Court of Appeal (Superior Jurisdiction) held on 10 March 2026 that a child should not be joined as a defendant in a case between the child's parents about custody and access. Chief Justice Mark Chetcuti, Mr Justice Robert G. Mangion and Madam Justice Simone Grech dismissed a mother's appeal against a decree of the Civil Court (Family Section). The court also declared three further grounds of appeal null, because the mother had not obtained the special leave that the law requires.

The facts

The parties, Z1 vs Z2, are the parents of a minor child and are not married to each other. After several rounds of family mediation, the father sued the mother before the Civil Court (Family Section), asking for joint custody, wider access and maintenance.

The mother counterclaimed to strip the father of parental authority and revoke his access. On 14 October 2025 she also applied under article 961 of the Code of Organization and Civil Procedure (Chapter 12 of the Laws of Malta) to have the child joined as a party. She asked to be appointed curator ad litem, a person appointed to represent someone who cannot sue or be sued alone.

On 30 October 2025 the Family Section declared the joinder request inadmissible and refused to appoint the mother curator. It appointed the Avukat tat-Tfal (the Children's Advocate, a lawyer who represents the child's voice) under regulation 3(6A) of Subsidiary Legislation 12.20. The mother appealed without asking the first court for leave.

What the court held

The mother argued that articles 781 to 783 of Chapter 12 allow a minor to sue or be sued through the parent exercising parental authority or through a curator ad litem. She submitted that she had asked only to represent the child, not for the child to stand alone.

The court accepted that minors may appear through those with parental authority or through a curator ad litem, and that article 782 lifts the bar in article 781 where a minor sues the parent with authority. But it held that joinder under article 961 is discretionary, and that the first court did not need the child as a party to decide joint custody or access.

The court gave its reason in terms of the child's welfare: "Li jiddaħħlu l-minuri bħala partijiet fil-kawżi bejn il-ġenituri immankabilment ikompli jagrava d-dannu kollaterali fuqhom tal-kunflitt ta’ bejn il-ġenituri tagħhom." (Making minors parties to cases between their parents inevitably aggravates the collateral harm that the parents' conflict does to them.)

The court found that the law already gives the child a voice. A Children's Advocate appointed during the mediation had met both parents and the child and filed a report. The court held that decrees given during family mediation stay in force until withdrawn, so that appointment had not lapsed.

The mother's lawyer told the court that the mother had not allowed the father access for several months because she considered it harmful. The court found that the mother was breaching its orders and called it unacceptable that she should then ask to act as the child's curator. It rejected the first ground as unfounded.

Under article 732A of Chapter 12, the court then raised on its own motion whether leave to appeal was needed. A decree refusing joinder is listed in article 229(2) and may be appealed before final judgment without leave. The other three grounds attacked the appointment of the Children's Advocate and a related finding. They needed special leave under article 229(3), requested within 10 days of the decree.

The mother accepted that she had never asked for it. The court declared those grounds irregular and null, dismissed the appeal and ordered her to pay double costs under article 223(4).

Why it matters

A parent who wants a child's interests heard in a custody case should not expect the court to join the child with that parent as curator. The route is the Children's Advocate and court-appointed experts, and an appointment made in mediation carries into the case.

Lawyers appealing an interlocutory decree should check article 229(2) first. Every ground outside it needs leave from the first court within 10 days.

Where it sits

Joinder of a third party, once called compulsory intervention, lets a court at first instance bring into a pending case a person with a legal interest. Article 962 treats that person like any other defendant. Capacity to sue sits in articles 781 to 783: a minor appears only through a parent with authority, a tutor or a curator.

The first court relied on judgments of the Court of Appeal of 25 June 2019 and 31 May 2023. They hold that the claimant chooses whom to sue, and that joinder needs a legal interest and stays discretionary. The Court of Appeal added its judgments of 20 July 2020 (Superior Jurisdiction) and 18 May 1995 (Inferior Jurisdiction): joinder is not used where the defendant already in the case can answer every claim.

On leave, the court restated that "il-liġi tal-proċedura hija ta’ ordni pubbliku u għandha tiġi segwita ad unguem" (procedural law is a matter of public order and must be followed to the letter). It cited the Court of Appeal (Superior Jurisdiction) of 27 March 2003, 11 March 2025, 8 May 2025 and 14 October 2025, and the Court of Appeal (Inferior Jurisdiction) of 19 May 2004 and 1 June 2009.

Source

Court of Appeal (Superior Jurisdiction), 148/2025/1, 10 March 2026: 148/2025/1