Being in default of paying maintenance following a court order or after signing a contract may result in prison. Yet do visitation rights carry the same weight as a maintenance order does?

Failure to pay maintenance within 15 days from the day on which such maintenance is due is a contravention against public order; similarly is the refusal by a child’s custodian (without just cause) to give the other parent access to the child when ordered by a court or bound by a contract.  The non-observation of visitation rights undoubtably result in hardship on the other parent at the expense of the child. For such reason, the law aims to discourage non-observation of visitation rights due to a capricious reason or a reason attributed to pique.

The corridors and halls of the Family Court have on too many occasions heard and witnessed one parent or another alleging that it is the child who refuses to be with the other parent, and that the parent vested with custody does not physically have the power to force the child and to give access to the other parent.

This was the reasoning brought by the mother who was accused of repeatedly refusing to give the child’s father access to their child. The court did not find that mother had ‘just cause’ for not giving the father access to the child, and on September 14, 2020, the accused was found guilty by the Court of Magistrates as a court of criminal judicature and subsequently condemned to one (1) month of effective imprisonment for each case against her, thus a total of eight months’ imprisonment for not giving the father access to their 10-year-old son. 

Actions such as those by the accused cause trauma to the child and the other parent, which trauma is not easily resolved and, at times, may even cause irreconcilable hatred

The mother appealed and argued once again that it was the child who refused to be with the father and that the child’s refusal should not result in an offence committed by his mother. Such an argument was compared by the court to the statement she had previously given to the police, whereby she had stated that it was the father who had expelled the child after a fight and after seeking advice, she stopped giving the father access to the child.  The accused further argued that recent case law regarding the obligation by one parent to give access to the other parent was heading towards a different direction and thus such a contravention should not be punishable by imprisonment. The Court of Appeal disagreed.

The court stated it was the mother’s obligation to give the father access to the child and that it should not be the child who declares and dictates whether visitation happens or not. The court further considered that the mother did not do anything to persuade the child to attend visitation with the father and neither did she make any effort to ensure that access did happen. On the contrary, she arbitrarily decided to stop giving the father access to the minor.

The Court of Appeal referred to the same judgment cited by the accused herself and clarified that such cited judgment dealt with different facts than those of the accused. Contrary to what AB did in this case, in the case cited by her, the father had done everything in his power to ensure the child’s visitation with the mother. Indeed, in the cited case, the court had considered that after the court-marshal failed to succeed in his order to physically take the child to Appoġġ to meet the mother, the father did not stop there. He not only encouraged the child to obey the court order but he also invited the mother into his apartment and left the mother and child together, until the child physically pushed the mother out of the apartment.

Acknowledging that each case presents its own particular facts, the court expressed that unlike the case cited by the accused herself, AB made no effort to ensure that visitation happened.

Subsequently, the Court of Appeal presided by Judge Giovanni M Grixti on  April 15, 2021, confirmed the first judgments against the mother in ‘Il-Pulizija vs AB’ (173, 174, 175, 176, 177, 178, 179, 180 of 2020) and found the mother guilty of Article 338 (ll) of the Criminal Code.

When considering the punishment, the Court of Appeal acknowledged that actions such as those by the accused cause trauma to the child and the other parent, which trauma is not easily resolved and, at times, may even cause irreconcilable hatred. Apart from the undisputed importance of obeying a court order, it is for such reason that a parent is condemned to a prison sentence when he or she refuses to give access to the other parent following a court order or contract. 

Notwithstanding such, in its judgment(s), the Court of Appeal declared that the mother required help to recognise her wrongdoings and rectify her mistakes which were causing prejudice to the child and the child’s father in an irreparable manner.

The court was further satisfied that supervision of the offender (by a probation officer) was desirable and was in the interest of securing rehabilitation of the offender and preventing the commission of further offences. Consequently, the Court of Appeal substituted the punishment of imprisonment by placing the offender under a probation order for 18 months in accordance with the probation act.

Being placed under probation does not mean that the accused was not found guilty. A probation order is an alternative to a prison sentence, whereby the offender is placed under the supervision of a probation officer, in this case for 18 months. Should the offender fail to comply with the conditions of the probation order therewith or commits another offence, she will then be liable to be sentenced for the original offence.

Rebecca Mercieca is an associate at Azzopardi, Borg and Associates Advocates.