Egeneonu v Egeneonu

A court may issue successive mandatory injunctions requiring the same positive action. Disobedience of each fresh order may constitute a fresh contempt and attract further imprisonment. The court must decide whether further imprisonment is necessary and proportionate and, once punishment has been achieved, whether continued orders are likely to have a coercive effect.

Court orders must be obeyed unless set aside. A respondent cannot excuse disobedience by arguing that an order should not have been made. Imprisonment for contempt remains a last resort, and a sentence approaching the two-year maximum is reserved for the most serious cases.

The appellant was sentenced by Cohen J to 18 months’ imprisonment for six contempts arising from his continued resistance to orders intended to return his three children from Nigeria and reunite them with their mother. The contempts included breaches of successive mandatory orders and attempts to mislead the court.

He challenged the findings on numerous grounds, including double jeopardy, the admissibility and reliability of recorded telephone calls, inability to comply, judicial bias, lack of jurisdiction and the effect of a Nigerian court order. Although he made no separate submission concerning sentence, the Court of Appeal reviewed both the use of imprisonment and its length because he was unrepresented.

The central issues were whether the findings of contempt could stand, whether successive orders and committals impermissibly punished the same conduct, and whether the 18-month sentence was justified.

1. Appeal dismissed unanimously. Cohen J had clear evidence that the appellant was in flagrant contempt of the court’s continuing efforts to secure the children’s return or their reunification with their mother. The recordings supported the individual findings, and there was no basis for appellate interference with the judge’s assessment that the appellant could comply but deliberately acted to prevent compliance.

2. The successive committal proceedings did not offend the principle against double jeopardy. Applying Re W (Abduction: Committal) [2011] EWCA Civ 1196, a court may issue successive mandatory injunctions requiring positive action despite an earlier failure to comply with an identical requirement. Breach of each fresh order may expose the respondent to fresh contempt proceedings and further imprisonment. Whether another term is justified depends on whether it is necessary and proportionate. Once the punitive element has been achieved, the court must assess whether continued orders are likely to exert a coercive effect.

3. The children remained wards of court. The High Court could make further orders responsibly considered to be in their interests, notwithstanding the failure of earlier orders. Continued disobedience attracted the court’s ordinary enforcement powers and resulted from the appellant’s deliberate choices.

4. The appellant could not use the committal appeal to reopen whether the children had initially been wrongfully retained or whether the underlying orders should have been made. Applying Johnson v Walton [1990] 1 FLR 350, an order must be obeyed unless set aside. Objections to its merits provide no excuse for disobedience. The alleged Nigerian order likewise supplied no genuine excuse.

5. The recorded calls had been admitted by an unappealed interlocutory decision. Cohen J had carefully tested their reliability and was entitled to accept them. The allegations of judicial bias and the recusal argument were groundless.

6. Imprisonment is a last resort for contempt, and a term approaching the two-year maximum must be reserved for the most serious cases. This was such a case because it involved the calculated separation of three children from their mother and contemptuous disregard of court orders. The 18-month concurrent sentences were approved.

• Court of Appeal (Civil Division): By [2018] EWCA Civ 1714, unanimously dismissed the appeal and upheld the findings of contempt and concurrent sentences of 18 months’ imprisonment.

• Family Division: Cohen J found six contempts proved and imposed concurrent sentences of 18 months’ imprisonment on 1 May 2018. No neutral citation for that decision is stated.