Tanya Borg v Mohammed Said Masoud El Zubaidy

Successive terms of imprisonment for continuing contempt are legally permissible and are not subject to an aggregate cap derived from the maximum sentence for a single contempt. The court must adopt a stage-by-stage, hearing-by-hearing assessment of necessity and proportionality. Relevant considerations include the seriousness and persistence of the breach, the consequences of the contemnor’s conduct, previous imprisonment, and, where appropriate, the likely criminal sentence for comparable conduct. The coercive purpose of committal may carry little practical weight where compliance appears unlikely, but punishment may remain justified. A civil contemnor may apply to purge contempt at any time, which distinguishes civil committal from criminal sentencing.

The applicant mother sought the committal to prison of the respondent father for breaches of orders requiring him to execute an attested consent permitting two daughters to travel from Libya and to use his best endeavours to procure their return to the jurisdiction.

The father accepted that he had not provided the required documentation and admitted taking no steps to procure the children’s return. He had previously served four terms of imprisonment totalling five years for related breaches. The central issues were whether further imprisonment was legally permissible and proportionate, particularly where its coercive effect was likely to be ineffective, and whether the statutory maximum or the criminal maximum for child abduction constrained the sentence.

1. Further imprisonment permissible. The father’s breaches were established. Section 14 of the Contempt of Court Act 1981 provides a maximum sentence of two years’ imprisonment for an individual contempt, but it does not prevent successive findings of contempt and terms of imprisonment exceeding two years in aggregate for successive breaches.
2. Necessity and proportionality. Following the guidance in Re W (Abduction: Committal) [2011] EWCA Civ 1196, the court must assess each further term by reference to the facts then in play. It must consider previous orders and imprisonment cumulatively, together with the likely sentence for similar criminal conduct where appropriate. The process is discretionary and must not become an automatic series of committal orders.
3. The analogy with criminal sentencing for child abduction was not determinative. A civil contemnor can apply at any time to purge contempt by undertaking compliance, a remedy unavailable in the criminal context.
4. The coercive purpose of committal was likely to have limited effect, since the father stated that he would do nothing to assist. That did not eliminate the punitive justification for imprisonment in a case involving wilful and repeated defiance, severe consequences for the children and mother, and continuing refusal to comply.
5. The approach in Button v Salama [2013] EWHC 4152 (Fam), where the court concluded that further punishment had become excessive, was recognised as carrying weight, but each case remained fact-specific. This case warranted further punishment.
6. A sentence of 12 months’ imprisonment was imposed for both contempts, to run concurrently and without suspension. The father retained the right to apply to purge his contempt and had 21 days to appeal without permission.

First-instance committal decision. No prior appellate decision concerning this hearing was stated.