The imprisonment of a man who did not pay maintenance to his ex-wife because he was unemployed raises human rights concerns, according to legal experts in the field.

Putting parents in prison when they have failed to pay maintenance because they could not afford to raises questions

Although the law allows the imprisonment of people who fail to obey a court ruling, such as a maintenance order, according to case law this did not apply when the person could not afford court-imposed payments, explained Giovanni Bonello, a former judge within the European Court of Human Rights.

“The imprisonment of a person who is not in a financial position to pay a debt can never serve ‘to secure the fulfilment of an obligation’, but to punish and degrade the debtor – which the (European) Convention simply does not countenance,” Dr Bonello said.

The Sunday Times reported the story of David Muscat, a 52-year-old father of three who has been jailed for a month for not paying maintenance for four months, during which time he was unemployed.

The newspaper saw documents issued by the Employment and Training Corporation showing he had been made redundant. He has since found a job.

Mr Muscat said he did not have the money to appeal the jail term and to date he was waiting for the police to knock at his door to take him to prison to serve his sentence.

Dr Bonello said what really concerns him about the case were the human rights aspects of Mr Muscat’s predicament, independently of the merits of his wife’s claims.

He pointed out that he happened to know Mr Muscat but never represented him during matrimonial litigation.

Dr Bonello said according to Protocol 4 of the European Convention on Human Rights, people could not be imprisoned for the non-payment of any civil contractual debt.

“I believe it could be argued that alimony is a debt arising from the contract of matrimony, enforced by a court judgment,” he said.

The Convention, he said, allowed the imprisonment of a person to secure the fulfilment of any obligation prescribed by law, which would include maintenance.

“But the case law of the Strasbourg Court has, wisely in my view, explained that such imprisonment would only be lawful if it is proved that the debtor had the means to fulfil that obligation and still failed to do so,” he said.

Human rights lawyer Therese Comodini Cachia agreed with this line of reasoning.

She said it was of utmost importance for the courts to ensure that parents paid their maintenance.

“But putting parents in prison when they have failed to pay maintenance because they could not afford to does raise questions under the European Convention,” she said.

It was the civil court that determined the amount of maintenance due. That same court could be asked to change the degree if circumstances changed.

Sometimes people followed this procedure but, at times, parents thought it was obvious that maintenance could not be paid and ignored the decree.

“We may need to strengthen our position to ensure that while maintenance obligations are respected, the rights of those parents who have a valid reason are not violated.

“In this respect, we will need to ensure that the civil courts consider all evidence that may be produced to prove a change in circumstances and for that parent to be allowed full access to court in this respect,” she said.

Dr Comodini Cachia said the criminal court should also use its discretion and consider evidence that maintenance could not be paid for reasons beyond control.

Constitutional lawyer Ian Refalo thought the situation was not so clear cut.

While Protocol 4 abolished imprisonment for civil liabilities, maintenance was not considered a purely civil affair since it was an offence related to the non-observance of a court order.

For Prof. Refalo, being jailed for not paying maintenance, due to financial constraints, could be a breach of human rights but this was debatable.