Kayani, R. v (Rev 1)

In serious parental child-abduction cases, the court must impose a sentence reflecting both the offender’s culpability and the enduring harm caused to the child and the left-behind parent. A substantial deterrent element may be required, particularly where a planned removal abroad has permanently damaged the parent-child relationship.

The welfare of children dependent on the offender is an important sentencing consideration. It does not, however, make an otherwise appropriate custodial sentence inappropriate, especially where their dependence is itself a consequence of the offence. Reliance on family-life rights under Article 8 as mitigation is misconceived in that context.

Two fathers appealed concurrent custodial sentences for offences under the Child Abduction Act 1984. Kayani had removed his two young sons to Pakistan in breach of court arrangements and concealed them from their mother for over nine years. Solliman had removed his three children to Egypt in breach of undertakings and kept them from their mother for over seven years.

Both appellants argued that imprisonment should be reduced because they were the only effective carers for children who no longer had contact with their mothers. The common issue was whether the children’s present welfare required reduction of sentences which otherwise reflected prolonged and grave parental abductions.

1. Both appeals were dismissed. The sentences of five years’ imprisonment on Kayani and three years’ imprisonment on Solliman were not manifestly excessive.

2. Parental child abduction can be an offence of exceptional gravity. Planned removal abroad, deception, breach of court orders, prolonged concealment, and the permanent destruction of a child’s relationship with the left-behind parent are serious aggravating features. Sentences must reflect the severe and lasting harm to both parent and child, with a significant deterrent element where appropriate.

3. The court held that the policy observation in R v C [1991] 2 FLR 252, that prosecutors should avoid charging parental kidnapping, had been overtaken by events and had no continuing authority. A parent may therefore appropriately be charged with kidnapping in a suitable case. However, following R v D [1984] AC 778, kidnapping requires proof including force or fraud and absence of the child’s consent. Those evidential requirements will often make the statutory child-abduction offence the practical charge. This guidance was not necessary to decide the sentence appeals.

4. The children’s welfare and the effect of imprisonment on them required full weight. But the fact that an offender is the only available or effective carer does not normally displace custody for a serious offence. The hardship suffered by these children flowed directly from the appellants’ own abductions and their severance of the children’s relationship with their mothers.

5. In this context, invoking the right to family life, including Article 8 of the European Convention, as mitigation was misconceived. It relied on the very family relationship which the offender had deliberately damaged by the abduction.

• Court of Appeal (Criminal Division): dismissed both appeals against sentence.

• Crown Court at Luton: Cooke J sentenced Kayani, following guilty pleas to two child-abduction offences, to five years’ imprisonment on each count concurrently.

• Harrow Crown Court: Judge Greenwood sentenced Solliman, following guilty pleas to three child-abduction offences, to three years’ imprisonment on each count.