Protecting children during separation proceedings

Amendments to maintenance and access laws are needed, says Labour MEP
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A strong need is being felt for changes to laws on maintenance and access of children during proceedings leading to marriage separation, Labour MEP Amanda Spiteri Grech said during her speech in a parliamentary session last week.

The Labour MEP, a lawyer by profession who specialises in family law, explained the necessary changes and additions to local laws which would make such difficult proceedings easier and fairer on children. She especially highlighted the importance of ensuring that children are not used as leverage or a bargaining chip during separation or care and custody proceedings.

Spiteri Grech spoke about the right of access to a child and further explained how, under Article 338 of the Criminal Code, a parent, who has custody of the child, and refuses access to the other parent, is guilty of a contravention.

On the other hand, no criminal law provision contemplates the scenario or imposes any sanctions on the parent who has a right of access but does not respect the allotted time agreed or does not return the child back to the parent who retains custody.

Spiteri Grech drew upon her professional experience and cases which have been presented before the courts which could not refer to any relevant provisions despite the obvious miscarriage of justice.

She also mentioned instances where a parent repeatedly and capriciously, without a suitable reason, refuses to show up or pick up their child for the allotted time granted for access out of spite or to inconvenience the other parent. Again, such instances are not provided for in the law, she noted. She proposed that, if it is proven that such negligence is deliberate and repeated, the respective parent should be liable to lose their right of access.

During her speech, Spiteri Grech also spoke about issues with maintenance sums. She proposed that once the initial letter is sent to the court registrar to commence mediation proceedings, it should clearly and immediately be decided with whom the children will be residing. This should also trigger a fixed basic maintenance sum until a more formal agreement is reached, without the need for a dedicated application regarding maintenance, as is currently the case.

She further appealed to courts to have a stable framework/formula on which to base calculations for maintenance sums. She pointed out that failure to provide for such basic needs as a child’s health and education did not give rise to criminal action, but only to a civil one.

The Labour MEP recommended that, in cases where a parent does not repeatedly and consistently adhere to dates/times of access outlined in the care and custody contract or to decrees relating to maintenance, a dedicated authority must have the power to intervene and bring about an effective resolution.

In certain circumstances, this proposed authority would also be charged with receiving payments directly from one parent in order to pass it on to the other party. The ‘capricious’ parent would even potentially be liable to a penalty and/ or administrative fees, apart from any relevant seizures. With such powers in force, the authority would be able to monitor such delicate situation more holistically.

No criminal law provision contemplates the scenario or imposes any sanctions on the parent who has a right of access but does not respect the allotted time agreed or does not return the child back to the parent who retains custody

Spiteri Grech also spoke about the increasing phenomenon perceived in society, known as ‘parental alienation’, an exploitative practice which causes great mental unrest for children. Parental alienation describes scenarios where one parent actively shames, insults or pits the child against the other parent, often as a result of custody disputes following separation proceedings.

On one hand, a ‘beloved’ parent will create degrading situations against the other parent or relentlessly criticise the other parent in front of the child so as to create a negative perception. This is done consistently and systematically, often with help from other family members such as grandparents. This naturally makes it extremely difficult for children, who are still easily influenced at young ages, to develop healthy and positive relationships with both parents.

Spiteri Grech concluded that family courts around the world have adopted different measures to address this phenomenon which is becoming more prevalent. She pointed out that some countries have even qualified parental alienation as a criminal offence with dedicated penalties and sanctions.

Read more about parental alienation here and more Child articles here.

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