Lancashire County Court v Khan (Contempt Sentence for Non-Return of Children From Afghanistan)

A continuing breach of a child-protection order requiring the return of children may justify imprisonment, even where the breach involves no violence and the contemnor has no previous sentence for contempt. Sentencing must mark the court’s disapproval, secure future compliance, deter continuing breach and remain proportionate to the maximum sentence. A suspended sentence is unsuitable where an adjournment comparable to suspension has already failed to produce compliance and the contemnor maintains that he has done all he can. Custody may provide the necessary incentive for compliance. Subsequent compliance may support an application to purge the contempt and obtain earlier release.

The defendant admitted breaching an order requiring him to cause or permit his children to return from Afghanistan to England and Wales. The order had been made to enable local-authority welfare investigations and to protect the children. Sentence was adjourned after the admission to allow time for arrangements to be made, but the children were not returned. The issue was the appropriate sentence, including whether imprisonment was justified, its length, and whether it should be suspended.

1. Sentence. The defendant was sentenced to 18 months’ imprisonment for contempt arising from his continuing breach of the order requiring the children’s return.
2. Seriousness and purposes. Breach of any court order is serious. The seriousness was increased because the order was designed to protect children and the breach continued over time. Sentencing had two principal purposes: to mark disapproval and to secure future compliance. The sentence also had to deter continuing breach and demonstrate the consequences of non-compliance.
3. Proportionality. The court was required to impose a sentence reasonably proportionate to the maximum sentence of two years’ imprisonment. The defendant’s admission was taken into account, although it carried limited mitigating force because he had little practical choice in the circumstances. The children remained abroad, and he had not done all that he could to secure their return.
4. Suspension. Imprisonment was the only appropriate sentence. A suspended sentence would not assist compliance where the defendant simultaneously asserted that he had already done everything possible. The period during which sentence had been adjourned was comparable in many respects to a suspended sentence and had not achieved compliance. A new deterrent element was therefore required: time in custody rather than time at liberty.
5. Further compliance. The defendant was advised to take any remaining steps to arrange the children’s return. Successful compliance might justify an application to purge the contempt and secure earlier release.