RH & Anor, R v

For child-abduction offences under the Child Abduction Act 1984, seriousness should be assessed by reference to culpability and harm. Sentences should normally contain a significant deterrent element. A combination of high harm and high culpability ordinarily attracts five to seven years’ imprisonment after trial. Low harm and low culpability ordinarily attract a high-level community order to 18 months’ imprisonment. All other combinations fall within an intermediate range of 18 months to five years.

Sentencers must then weigh aggravating and mitigating features. Where imprisonment affects a child for whom the offender is sole carer, the child’s interests are a distinct and relevant consideration. They must be balanced proportionately with the gravity of the offending and wider public interests.

These connected references concerned sentences for child abduction. RH, the child’s mother, pleaded guilty during her trial at Oxford Crown Court to a parental child-abduction offence. She received 20 months’ imprisonment after taking her daughter abroad for about three months in defiance of a prohibited steps order.

LA, the child’s grandfather, pleaded guilty at trial at Swindon Crown Court to abducting his 12-year-old grandson. He received 30 months’ imprisonment after forcibly taking the child from his father’s care and making threats in the child’s presence.

Neither offence had applicable sentencing-council guidance. The court therefore considered the proper sentencing approach and whether the individual sentences were excessive.

1. The court dismissed RH’s renewed application for leave to appeal. It allowed LA’s appeal and reduced his sentence from 30 months to 15 months’ imprisonment.

2. For offences under sections 1 and 2 of the Child Abduction Act 1984, sentencing should follow the culpability-and-harm approach in section 143 of the Criminal Justice Act 2003. The guidance is general and must be applied flexibly to the particular facts. A substantial deterrent element will normally be required, consistently with R v Kayani and Solliman [2012] 2 Cr App R (S) 38.

3. A case combining high harm and high culpability ordinarily attracts five to seven years after trial. Low harm and low culpability ordinarily attract a high-level community order to 18 months. Every other combination falls within the intermediate range of 18 months to five years. Harm includes the duration of the taking, its effect on the child, and harm to the child’s relationship with a relevant adult. Culpability includes planning, concealment, defiance of court orders, an intention to sever relationships, and criminal purposes.

4. After identifying the range, the sentencing court must weigh aggravating and mitigating factors. Relevant aggravation includes force, risk to the child, vulnerability, group action, removal to a non-Hague Convention country, and removal from the jurisdiction in a section 2 case. Relevant mitigation includes facilitating prompt contact, compliance with orders, and co-operation with the authorities.

5. The effect of sentence on a child who depends on the offender as sole carer is not personal mitigation. It is nevertheless a relevant consideration requiring a proportionate balance between the child’s interests, the gravity of the offence, and wider public interests, applying R v Petherick [2012] 1 Cr App R (S) 116.

6. RH’s planned and persistent abduction, breach of a court order, concealment, and repeated lies justified immediate custody. The child’s interests had been properly placed in the balance, and 20 months was neither unjust nor disproportionate. LA’s offence involved planning, force, threats, and significant distress to the child, but was brief and was not intended to keep the father ignorant of the child’s whereabouts or prevent contact. A sentence approaching 18 months before credit was appropriate; 15 months reflected the late guilty plea.

• Court of Appeal (Criminal Division). In the present judgment, [2016] EWCA Crim 1754, RH’s renewed application for leave to appeal sentence was dismissed. LA’s sentence appeal was allowed and his sentence was reduced to 15 months’ imprisonment.
• Oxford Crown Court. RH pleaded guilty during trial and, on 1 September 2016, received 20 months’ imprisonment for child abduction.
• Swindon Crown Court. LA pleaded guilty at trial and, on 9 September 2016, received 30 months’ imprisonment for child abduction.