Justifications for denial of child access : identifying their validity in light of the best interest of the child

Abstract

While the concept of the best interest of the child is widely talked about, it is not always necessarily attributed the importance that it should necessarily warrant in practice. In fact, much more needs to be done in this regard, especially with respect to the child’s right to be heard and to have his/her views respected on matters that are of direct concern to him. Maltese Courts are faced with many cases in which child access is refused to the non-custodial parent. As can be understood through local jurisprudence, this is especially often the case wherein the parents of the child are going through personal separation or divorce proceedings and the prevailing pique between the parents is significantly strong. Unfortunately, such attitude on the part of the parents renders the child feeling lonely and misunderstood, and it is therefore especially important that in such circumstances the relevant authorities offer their prompt and necessary assistance in an efficient and timely manner. Article 338(ll) of the Maltese Criminal Code which regulates the denial of child access stipulates that such denial may only be applied for a cause which is just in nature. However, the said provision of the law does not provide any indications as to how the nature of this cause is to be determined. Therefore, reliance in such cases must be placed on local jurisprudence. Unfortunately, local jurisprudence is not consistent in its interpretation of what a cause is considered as being just in nature. It is for this reason that this contravention must be legally addressed in a better manner that respects the autonomy as well as the rights of the child.