Anger bubbled inside Victoria* when she read in The Sunday Times that a mother had been jailed for not granting her ex-husband access to their teenage son, a scenario she had lived through.

Insisting that a mother is jailed is not loving your children

The case brought back memories of the trauma she endured when she was jailed for a week for not forcing her children to spend time with her estranged husband – the man she claims beat her up in front of them.

In her case, an appeal court had changed her prison sentence to a conditional discharge after hearing that the children, then 11 and 14, would visit their father and that the father did not insist on the jail term.

“It’s so unfair… That mother should not be in prison. She could lose her job which she needs to maintain her children… There is no justice with children. They (the courts) are not listening to them,” Victoria insisted.

Two weeks ago the appeals court confirmed a magistrate’s decision to sentence a 57-year-old mother to three months imprisonment for refusing to grant her ex-husband access to their son on 13 occasions.

The mother argued that she could not force her son, then 16, to go to see his father. Speaking to The Sunday Times the boy said his mother had never stopped him from seeing his father.

“My mother is innocent and she shouldn’t be in prison. I’m appealing to the courts to give children, especially in separation cases, a louder voice,” he had said.

Family lawyer Lorraine Schembri Orland said the age of the child was usually significant in such cases.

Where the reluctance to visit is shown by an older and more mature child, the court would usually respect the wishes of that child unless it resulted that the custodial parent would have pressured that child, she said. “Judgments of the Court of Criminal Appeal have taken this approach.”

Dr Schembri Orland said that failing to hand over custody of a child was an offence against public order since, essentially, it meant disobeying a court order granting visitation.

If the case was isolated a magistrate usually reprimanded the parent. The magistrate could opt for a conditional discharge and, if the offence was repeated, a jail term could be handed down – usually a week or, at most, a month.

“In this particular case, the charge was one of a continuous offence… and could attract up to three months imprisonment as a punishment,” she explained.

Victoria had been charged with disobeying a custody order on three occasions because her children did not want to spend time with their father.

Thinking back to that day when the magistrate read out her one-week jail term, she recalled how she felt faint. Her lawyer immediately filed an appeal.

“It’s just not right. My children did not go on a few occasions, out of their own choice. He did not pay maintenance for months and was not even jailed for an hour,” she said.

When she went home and explained to her children what had happened, they felt guilty that they had almost landed her in prison. After that it was three months of torture waiting for the final decision.

“On the day of the judgment I prepared a bag ready to go straight to prison. I was terrified,” she recalled, as her eyes welled up.

Her case was called at 9am and the judge told her to go and fetch the children from school and return to court.

The judge spoke to the children in private. She later learnt that he told them that their father remained their father and they had to spend time with him.

Before reading out the judgment the judge asked that Victoria be escorted to see what a cell looked like.

When she returned, he told her that if she did not want to end up in a cell she had to obey court orders. He then asked her husband if he wanted her jailed and he did not insist.

Speaking about the woman jailed for three months, Victoria said: “I feel so sorry for her and her son. To her I say: ‘Don’t let this break you. You did nothing wrong and people know it’. If her son had an ounce of love left towards his father, it’s probably gone… Insisting that a mother in jailed, is not loving your children,” she said.

* Name has been changed to protect the person’s identity.