An academic study by Dr. Mohamed Idrissi Alami Machichi, honorary professor at Mohammed V University, on the motives of legal recidivism, brings back a question the association often faces: what happens when the same person repeatedly refuses to hand over a child, and how do you prove the offence when the mother or her family resort to deception? Here is what the researcher says, and what the association observes on the ground.
The Journal of Criminal Affairs (مجلة الشؤون الجنائية) published, in its January 2020 issue, an academic article titled "The motives of legal recidivism", signed by Dr. Mohamed Idrissi Alami Machichi, honorary professor at Mohammed V University. It is a general criminology study with no direct link to family law, but it brings back a question the association often faces when supporting fathers complaining of a repeated refusal to hand over their children — sometimes by the same person, even after a previous conviction: why does this refusal keep repeating, and what does Moroccan criminal law actually say about this recidivism?
What the researcher says about the motives of recidivism
Idrissi Alami Machichi distinguishes two types of motives: subjective motives, specific to the reoffender themselves (constitutional, genetic or acquired — temperament, jealousy, a sense of inferiority, a poor upbringing, or the grip of addiction), and objective motives, tied to their institutional environment (how precisely or broadly the legal text is worded, whether or not the public prosecutor's office chooses to invoke recidivism, pardon policy, prison conditions). Drawing on a study by the General Delegation for Prison Administration and Reintegration, he notes that 76% of recidivists in Morocco are aged between 19 and 39. But the article's most striking finding, which directly matches what the association observes on the ground, is that Morocco has no precise official statistics on the number of recidivism cases as such, even though general crime statistics do exist: the criminal record, the author explains, does not distinguish between a first offence and a second or third one, which makes tracking and addressing reoffenders difficult from the outset. The article also recalls a simple empirical observation cited by the researcher: "whoever has reoffended once will reoffend again" — a prior instance of recidivism is itself one of the strongest predictors of its repetition.
What does the law criminalise in the first place?
Article 476 of the Penal Code punishes, with one month to one year in prison, anyone entrusted with the care of a child who refuses to hand them over to whoever has the right to claim them. Article 477 covers the more precise situation the association most often deals with: once a court ruling on custody has been issued, final or provisionally enforceable, the father, mother or any other person who refuses to hand over the minor to whoever has the right to claim them, or who abducts or entices them away — even without violence or fraud — from whoever was entrusted with their custody or from the place where they had been placed, is punished by one month to one year in prison and a fine of 200 to 1,000 dirhams; the sentence can reach three years in prison if the offender has already been stripped of parental authority over the minor.
And if it happens again?
This is where the two subjects meet: the Penal Code devotes an entire section to recidivism (articles 154 to 160). Article 157 provides that anyone previously sentenced to prison for a misdemeanour, by a final judgment, who then commits a similar misdemeanour within five years of that sentence's execution or its lapsing, must be sentenced to a prison term of up to double the maximum set for the second misdemeanour — up to two years instead of one, in the case of articles 476 or 477. More importantly, article 158 lists the misdemeanours considered "similar" for the purpose of establishing recidivism, and its 6th paragraph explicitly includes "all misdemeanours committed against children who have not yet turned eighteen". In other words: any second refusal to hand over a child under 18, committed by the same person within five years of the enforcement of their first conviction, legally falls under aggravated recidivism — whether it concerns the same child or a different one.
The gap between the text and its application
In judicial practice, this aggravation is rarely actually raised in court: each new refusal is usually treated as if it were the first, with no systematic tracking of a person's judicial record, especially when the competent court changes along with the parties' place of residence. The result is that light or suspended sentences keep recurring with every new complaint, while it is the child who keeps paying the price of the wait.
Beyond recidivism in the strict sense, the refusal to hand over the child — the offence of non-presentation of a child (NRE) itself — is a massive phenomenon: most fathers involved in a custody dispute face it in one form or another, up against crude but effective tactics — the mother systematically denies any refusal and invents excuses — which is enough to cast doubt. In practice, for lack of sufficiently solid evidence, a large share of these complaints go nowhere, and it falls on the father alone to gather all the evidence needed to move his case forward. This difficulty is not only judicial, it is also social: gathering that evidence often requires the help of witnesses, neighbours or relatives able to confirm the facts, and it is widespread cultural reflexes — wanting to protect the mother even when she is at fault, and the common assumption that a man can rebuild his life anyway, remarry, and settle for paying child support — that make this cooperation hard to obtain.
In the cases it supports, the association knows of only one case to date showing this pattern of repeated refusal by the same person — currently in ongoing proceedings in Casablanca — and it illustrates the real difficulty well. First, the difficulty of proving the offence itself: the mother, or members of her family who often take part in it, resort to forms of deception (changing address without notice, claiming the child suddenly fell ill on the day of the visit, refusing to open the door to the judicial officer despite a formal record of his presence) that make each isolated incident deniable or justifiable in court. And even if a prosecution succeeds, nothing then stops the mother from doing it again without fearing a new prosecution for recidivism: under article 157, recidivism can only legally be found after a final judgment — a process that in practice takes years, during which the child grows up without seeing his father, without triggering the slightest institutional reaction to this situation.
What needs to change
- Systematic tracking of judicial records relating to offences under articles 476 and 477, through the criminal record, regardless of which court issued the first judgment.
- The public prosecutor and civil parties should explicitly raise recidivism whenever the conditions of articles 157 and 158(6) are met, instead of prosecuting each case as if it were a first offence.
- Systematic documentation of every refusal (the judicial officer's official record, a police report, any available means of recording) to build a coherent recidivism case file instead of scattered incidents that are easy to talk around or deny.
- A specialised emergency family court to rule quickly on this type of case, as the association's memorandum demands, so that the slowness of proceedings does not itself become an incentive to reoffend.
A first refusal to hand over a child is already an offence punished by law. The law itself treats a second one as more serious. Practice has yet to catch up with the text.