W (A Child), Re

A failure to comply with a fresh mandatory order may constitute a fresh contempt, even where it reflects the same continuing state of mind and resembles an earlier omission. A further committal may therefore be lawful and may result in cumulative imprisonment exceeding two years, provided each term concerns a distinct contempt and is imposed on a separate occasion under the Contempt of Court Act 1981.

The court must nevertheless decide afresh whether imprisonment is necessary and proportionate. It must consider prior committals, their cumulative effect, and whether custody retains a realistic coercive purpose. Successive orders must not be used to circumvent the statutory limit or produce indefinite imprisonment.

The father abducted his daughter from England and Wales and failed to comply with orders requiring her return and disclosure of her whereabouts. Mostyn J committed him to prison for two years for failing to cause her return.

Before his anticipated release, Baker J made a fresh order requiring disclosure of information about the child’s whereabouts. Having found that the father was deliberately concealing that information, Baker J committed him for a further 12 months.

The father appealed, contending that the conduct was a single contempt for which he had already received the maximum sentence, that further orders risked indefinite incarceration, and that committal had ceased to have a coercive effect. The central issue was whether a further committal for breach of a fresh mandatory order was lawful and proportionate.

1. Appeal dismissed. The contempt punished by Mostyn J, namely failure to return the child, differed from the later contempt: failure to disclose her whereabouts in breach of fresh orders. The later committal was therefore not a second punishment for the same contempt.
2. More generally, a continuing refusal to perform an act required by a mandatory order may give rise to successive contempts where a fresh order is made and then breached. The court applied the approach in Villiers v Villiers [1994] 2 All ER 149, which treats the statutory two-year limit as applying to each occasion of committal, and followed the materially similar child-abduction guidance in Re A (Abduction: Contempt) [2009] 1 FLR 1. Kumari v Jalal [1996] 2 FLR 588 did not preclude a fresh application founded on a fresh directive order.
3. That legal power is constrained by proportionality. On every occasion the court must determine whether a further term is necessary and proportionate, having regard to earlier orders, the cumulative time already served and, where appropriate, comparable criminal sentencing. The process is not a means of evading section 14(1) of the Contempt of Court Act 1981 through serial committals.
4. The coercive purpose of custody may eventually be exhausted. Re Barrell Enterprises & Others [1973] 1 WLR 19 and Enfield London Borough Council v Mahoney [1983] 1 WLR 749 illustrated exceptional cases in which there was no realistic prospect that imprisonment would induce compliance. Their facts did not establish such a stalemate here. The first-instance judge had heard the father, found him dishonest, and was entitled to conclude that a further term retained coercive force.
5. Baker J was not plainly wrong to impose 12 months’ imprisonment. The Court of Appeal held that the term was legally permissible, necessary and proportionate on the facts.

• Court of Appeal (Civil Division): Dismissed the father’s appeal in [2011] EWCA Civ 1196 and upheld Baker J’s order committing him for 12 months for breach of fresh disclosure orders.
• High Court, Family Division (Baker J): On 8 April 2011, found the father in contempt for deliberately withholding information about the child’s whereabouts and imposed 12 months’ imprisonment.