When someone is found guilty of a crime or a contravention, the courts apply the fitting consequence and, depending on the offence and the circumstances, this can be simply a warning, or a fine or even imprisonment. However, should certain contraventions be decriminalised? And what would be the benefit of such decriminalisation? Would it help in deterring the further commitment of such contraventions?
Let’s take the case where the parents or spouses do not respect the contract, decree or judgment in respect of custody or maintenance. If this were to happen, the party not given maintenance or is not allowed to see the children should, after 15 days of this taking place, report it to the police. Since these are offences there is not much the police can do except to prosecute and the judiciary will need to abide by the law.
Is a fine or imprisonment enough of a deterrent for the ‘perpetrator’ to stop from repeating such offences?
Since these offences are family matters, some offenders do not even realise that what they are doing amounts to a criminal offence. Even when they are duly warned, many times they are so tired with the behaviour of the other party that they simply do not care that they might even be sent to prison. They would have just stopped caring because, for them, losing their children or seeing that the other party simply does not care for their children is enough to take matters into their own hands.
However, right as they might be, nothing can justify taking matters into one’s own hands. Who would be the ultimate victim? Certainly not the other party. The children are the ultimate victims because they are torn between two parents and seeing their parents heading to court because of them will definitely leave a mark.
So, would it be in the best interest of the children to have such offences decriminalised to lessen the impact and harm on them? Is the law, as it stands, proving to be an effective deterrent?
If the parties have lost their fear of imprisonment or fines, then, I believe that, in these cases, it is not an effective deterrent because this would only work if it actually stops people from committing an offence. And since the ultimate victims in this sad and unfortunate string of events (because usually these are rarely a one-off occurrence but a number of ongoing criminal reports) are the children, a solution needs to be found where there will be an effective deterrent to such offences. Is decriminalisation an effective solution?
It would not be an effective solution if instead of a drop in the number of criminal reports filed there will be an increase.
Should stiffer penalties therefore be imposed to deter people from committing such offences? Would that be more harmful to the children?
Such offences do not only affect any one of the parents but also the children because these are familial situations.
Should a repeated and blatant disregard of child maintenance or denial of access to the child result in civil consequences with an automatic reversal of such? Thus, instead of criminal consequences to such actions, one would lose the right of access or custody or primary residence. Would that be a more effective deterrent?
At present, court orders or contracts on access rights and maintenance can be changed if the circumstances so demand. The question is whether it is better to eliminate the criminal consequence of fines or imprisonment, resulting in a reversal or change of the appropriate right.
Would this be such a severe consequence that it would truly act as a deterrent? Again, would this be ultimately in the best interest of the child? Would it be best for the child to have to shift homes? Or to have access to one parent completely denied or drastically reduced? Would this be of ultimate benefit to the child? Or would the child remain the victim?
The situation is of an extremely delicate nature and whatever action is to be taken, whether the law needs to be changed or not, one thing remains certain: children must be protected and the law needs to safeguard their paramount interests.
Ann Marie Mangion is a lawyer and a published author with a special interest in family and child law.