The case of a mother sent to jail because her husband was not seeing his child is a very common case, similar to the many heard every week in court. Usually, it is the mother who is the accused person because, more often than not, the children are living with her while the father has visitation rights.

On the other hand, the father is usually the accused where maintenance issues are concerned because he is normally the person who provides maintenance.

Maintenance and the right to access, although separate and distinct, usually fall into the vicious trap of “if he is not giving maintenance, then I shall stop access” and the other way round. Although, it’s not justifiable denying access or stopping maintenance in retaliation, still, one cannot take the law into one’s hands and mete out justice. The law never justifies the ragion fattasi (arbitrary exercise of a pretended right).

Thus, it is very sad seeing a family torn apart over maintenance and custody issues. However, what is even sadder is the part where the children are concerned.

The courts appoint a child advocate to hear the children and then s/he will draw up a report with recommendations. The court can either go along with the recommendations proposed by the child advocate or it can vary them as it deems fit. Instead of appointing a child advocate, the court can simply hear the children.

There was a lot of media furore surrounding the mother who was jailed for three months and who was then granted a presidential pardon.

The law deems a minor anyone below 18 and, therefore, these are deemed incompetent to make their own decisions. Article 12 of the United Nations Convention on the Rights of the Child states:

“1. States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

This is of extreme importance. Although the convention does not state a specific age as to when children should be deemed competent, still, it states that views should be given “due weight in accordance with the age and maturity of the child”.

The convention is wise in not determining a specific age, thus excluding children of a certain age from having their views given due weight. But it states that the courts, among others, should, apart from age, give due importance to the child’s maturity, which is not a factor dependent solely on age.

Obviously, a 16-year-old is an adolescent who has the age and the maturity to perfectly arrive to a reasoned decision. If a 16-year-old is able to start working or to get married or even to be emancipated and engage in commercial acts of trade, then deciding when s/he should visit the parent should be a given right as well.

However, in this particular case, given the provisions of the law, the courts could not decide otherwise. If a separation contract, a court decree or a court judgment is not being honoured, then there is only one consequence – a criminal action with all its repercussions.

What one can do in such circumstances is to ask for a variation, depending on the change of circumstances and the particular case in question.

However, legal amendments should be made as regards children in custody issues. The United Nations Convention on the Rights of the Child should be implemented in our legislation, thus empowering the rights of the child by dividing the spectrum of what we deem as ‘children’.

A distinction needs to be made between young and older children – such as adolescents.

Adolescents should be deemed competent in making their own decisions in their own best interests. Younger children’s views should always be taken into consideration and given due weight according to their maturity.

Children’s views are already heard by the court, which does take into consideration their views. In fact, in many cases, the court has always stated that the best interests of the child override that of the parents.

The role of the child’s advocate can be reviewed to include representation of the child in court while a guardian ad litem can be appointed to ensure the child’s best interests are always respected.

One thing is certain: the child, be it a young or an older one, is never, and should never, be a silent party in a custody battle while always taking into consideration one’s age and maturity.

Dr Mangion is a lawyer and a published author with a special interest in family and child law.