Erhire v E

A sentence for civil contempt must reflect the gravity of the breach and bear a reasonable relationship to the statutory maximum of two years’ imprisonment. An appellate court should interfere only where the sentence is manifestly disproportionate or excessive. An active breach deliberately frustrating arrangements made by a court to secure a child’s return may justify immediate imprisonment, rather than a suspended sentence.

The appellant mother appealed against an eight-month sentence of imprisonment imposed for deliberately undermining an order requiring arrangements for her 17-year-old son’s return from Nigeria to England. The appeal concerned sentence only. The central issue was whether the sentence was manifestly disproportionate or excessive.

1. Appeal dismissed. The mother’s letter countermanding earlier instructions was an active and deliberate breach of the order. It was intended to frustrate arrangements for her son’s return.
2. The court assessed the seriousness of the attempt to frustrate the order. It was unnecessary to establish that the son would certainly have returned absent the breach.
3. The Court of Appeal followed the approach in Slade v Slade [2009] EWCA Civ 748, [2010] 1 FLR 160: appellate interference is reserved for sentences that are manifestly disproportionate or excessive, and appellate tinkering should be avoided.
4. Applying Hale v Tanner [2000] 2 FLR 879, the eight-month sentence bore a reasonable relationship to the two-year maximum for civil contempt. The gravity of the breach justified immediate imprisonment, which could not sensibly be suspended. The possibility of early discharge was noted by reference to CJ v Flintshire Borough Council [2010] EWCA Civ 393, [2010] 2 FLR 1224.

1. Court of Appeal (Civil Division) — Appeal against the eight-month sentence dismissed.
2. High Court of Justice, Family Division — Mrs Justice Macur found the appellant in contempt and imposed the sentence.