Borg v El Zubaidy

In civil contempt proceedings, a person who has already served imprisonment for breaching an order to return children may be committed again for breaching a later order directed to the same objective. This does not offend double jeopardy, although the court may eventually conclude that further imprisonment is no longer useful. The coercive purpose of civil contempt permits the sentence to be deferred, giving the contemnor a final opportunity to comply and apply to purge the contempt. The seriousness of abducting or retaining children and depriving the other parent of contact is a significant sentencing consideration. Reliance on the right to family life under Article 8 is misconceived where that principle has been deliberately violated.

The applicant sought the respondent’s committal for failing to comply with an order requiring him to cause the return of their three children to the jurisdiction. The respondent had previously been committed for breaches of earlier return and contact orders and had served six months in custody.

The central issues were whether the respondent had taken all available steps to secure the children’s return, whether a further committal was legally permissible, and what sentence was appropriate in civil contempt proceedings.

1. Breach established. The respondent had done no more than the bare minimum and had not used all steps available to him to procure the children’s return. His inaction remained part of a policy depriving the applicant of contact with the children. He was therefore in breach of the order.
2. Further committal permissible. Applying Wilkinson v Anjum [2012] 1 WLR 1036, a further committal for breach of a later order requiring the same result did not offend double jeopardy. The court would, however, eventually have to decide that enough was enough.
3. Relevant context. Button v Salama [2013] EWHC 2972 (Fam) and [2013] EWHC 4152 (Fam) demonstrated that repeated committals could continue for a substantial period where the contemnor remained obstinate. There was no legal impediment to imposing a further sentence, and the previous imprisonment aggravated the present breach.
4. Seriousness and coercion. The description in R v Kayani [2011] EWCA Crim 2871; [2012] 1 WLR 1927 of child abduction as an offence of great seriousness applied equally to the sentencing of civil contempt. Reliance on the right to family life under Article 8 was misconceived in the circumstances. Nevertheless, civil contempt is at least largely coercive, and the possibility of purging contempt justified deferring the sentence.
5. Order. The respondent was sentenced to twelve months’ imprisonment, taking effect on 31 March 2018. The sentence was deferred to give him one final opportunity to secure the children’s return. If they were returned by that date, the matter was to be restored so that his application to purge the contempt could be considered.

The judgment records an earlier committal order made by Moor J, reported at [2017] EWFC 58, for breaches of return and contact orders. The present decision was a first-instance determination of a later committal application.