Criminal sanctions in child access cases : do they promote the best interests of the child?

Abstract

This study encompasses the substance of the criminal offence of a parent refusing to give child access to the other parent, and the procedural aspect, namely the court process leading towards a conviction for not granting access of the child. Local jurisprudence exhibited a trend that the parent who repeatedly fails to pay maintenance is more likely to be subjected to denial of child access by the other parent, whereby upon the complaint of the injured parent (unless not initiated ex-officio) the Police invoke the provisions of Articles 338(ll) and 338(z) of the Criminal Code1 against the respective parent before the Criminal Courts. This study is based on qualitative and quantitative research consisting of an analysis of all the available published court judgements with regards to Article 338(ll) on the Government portal2 in which gender trends and patterns of the type of punishments given were extracted. The qualitative research carried out consisted in interviews to the Maltese judicature, both from the Family Court section and the Criminal Court which were aimed to understand trends, the applicability of these criminal sanctions and the interplay of the best interests of the child in such actions. The local situation was analysed comparatively with other jurisdictions, namely Canada and the United Kingdom so as to extrapolate common trends and any alternative remedies that other countries offer in such situations. On the basis of this research a number of recommendations focusing on the best interests of the child are being presented as alternative remedial measures to be considered by the legislator in lieu of the arduous criminal sanctions that we currently have in place for matters that generally emanate from dysfunctional relationships, whereby the applicability of the current sanctions tend to deteriorate relationships even further rather than promote stability to the child.