Button v Salama

Successive committal orders for contempt may be lawful, but each further term must remain necessary, proportionate and justified. The court must consider the cumulative imprisonment already served and must not circumvent the statutory maximum for committal. Imprisonment may punish past contempt or coerce future compliance. Where the contemnor has shown an enduring determination not to comply and imprisonment has lost coercive effect, a further term may serve only punishment. Once the statutory maximum has effectively been exceeded through consecutive terms, further punishment may be unlawful. The court must therefore refuse a further committal where proportionality has been exhausted, while leaving existing sentences undisturbed.

The mother applied to commit the father for contempt of court. The application concerned repeated failures to comply with orders requiring him to disclose the whereabouts of their child, who had been taken to Egypt, and to procure her return to England and Wales.

The father was already serving consecutive sentences and had been imprisoned continuously for almost two years. The court proceeded on the working assumption that he could have complied with the latest orders and that his failure was contempt. The central issue was whether a further sentence, sought for six or twelve months, remained lawful and proportionate.

1. The application for a further committal sentence was dismissed. The existing sentence imposed on 27 September 2013, consecutive to the sentence imposed on 2 July 2013, remained in force and was not varied.
2. Following Re W (Abduction: committal) [2011] EWCA (Civ) 1196; [2012] 2FLR 133, successive mandatory orders and committals for successive breaches may be legally permissible. Each further sentence must nevertheless be assessed on the facts then prevailing. The court must consider necessity, proportionality, the cumulative imprisonment already served and, where appropriate, the likely criminal sentence for similar conduct.
3. Section 14 of the Contempt of Court Act 1981 fixes a maximum term of two years for committal by a superior court. The court must not use successive committals to subvert that statutory limit. The father had already served the equivalent of twice that maximum.
4. Imprisonment served both punitive and coercive purposes. On the assumed facts, the father had displayed an absolute determination not to comply while detained, so the coercive effect of imprisonment was spent. A further term would therefore operate solely as punishment for past contempt, which could not lawfully be imposed in the circumstances.
5. The absence of any apparent criminal offence materially distinguished the case from R v Kayani and R v Solliman [2011] EWCA (Crim) 2871 and from the facts considered in Re W (Abduction: committal). The court left open no further committal sentence on the present application, but contemplated a later welfare hearing concerning the child.