Extinction of the criminalisation of non-payment of maintenance in legal practice: when the Court of Appeal already decides under the new rules

Our client’s case was just such a case recently considered by the Court of Appeal.

Our client was convicted of felony child support neglect by a trial court in 2025. At the time of the partial failure to pay child support, he was on long-term disability. He had not paid the full amount of maintenance for one month and had only paid part of it. The mother of the minor children did not have a good relationship with the client, so she took advantage of the situation and immediately filed an enforcement petition, as a result of which the client’s account and wages were garnished and his driving licence was revoked.

However, these measures had a major side-effect: the client was earning extra income as a taxi driver and the loss of his driving licence deprived him of the possibility of further income. Instead of stabilising the situation, his ability to meet his maintenance obligations deteriorated significantly. The Court of First Instance failed to take this context into account and found the client guilty. At the same time, the mother refused to consent to the reinstatement of her driver’s license, as a result of which the client was reassigned to a lower paying job. Paradoxically, this created a situation where enforcement and punitive measures led to a reduction in the actual child support paid for the next four months.

We appealed the judgment together with our client. The Court of Appeals had already ruled under the amended version of the Criminal Code. It proceeded on the basis of the facts as defined in the judgment of the court of first instance. However, under the new legislation, this act no longer fulfils the statutory elements of the offence of neglect of maintenance, since the operative part of the sentence does not contain an allegation or finding that the defendant’s conduct led to the exposure of the minor children to the risk of destitution, which is a newly mandatory element of the operative part. The Court of Appeal therefore applied the more favourable legal rule and acquitted the defendant.

This case illustrates how crucial the shift from a formal assessment of the maintenance debt to an assessment of the actual impact on the child is. At the same time, it confirms that even in ongoing proceedings, the courts must apply a more favourable legal framework for the accused.