Judicial discretion in family law : analysing differing judicial approaches in care and custody decisions

Abstract

Judicial discretion in the Maltese legal system is fundamental, especially in complex situations such as those brought in front of the Civil Court (Family Section) involving minors and their best interests. This study examines the extent to which judges, operating within the same legal framework, may adopt differing approaches when faced with broadly similar factual circumstances relating to Care and Custody decisions. Particular focus is placed on the interpretation and practical application of the best interests of the child principle, which remains the central guiding standard in Maltese Family Law. The study analysed thirty judgments delivered between 2023 and 2026 by the three presiding judges within the Family Court. The research identifies patterns in judicial reasoning by examining factors such as the weight assigned to parental attributes, the treatment of expert evidence, and the consideration given to the child’s voice. The findings demonstrate that, while all three judges consistently place the welfare of the minors at the forefront of their decisions, notable differences emerge in the manner discretion is exercised. Some judgments adopt a more flexible and holistic approach, whereas others reveal a more structured and evidence-driven methodology. The dissertation further considers broader issues affecting Family Law adjudication, including parental alienation, delays in proceedings, and gender dynamics. It is argued that while judicial discretion is essential in responding to the unique realities of family disputes, variability may undermine predictability and confidence in the system. Ultimately, this study concludes that discretion should not be curtailed, but rather guided through clearer procedural safeguards, more structured judgments, and institutional reforms. In doing so, the Maltese legal system can better balance flexibility with consistency, ensuring that Care and Custody decisions remain fair, transparent, and firmly rooted in the best interests of the child.