Fahad Abdi v Manchester City Council & Ors

A person is not in contempt of a mandatory order unless compliance was within that person’s power. The applicant bears the burden of proving deliberate disobedience to the criminal standard. Ability to comply may be inferred from the surrounding evidence; the applicant need not identify a particular available step or refute every asserted obstacle.

Successive mandatory orders may lawfully repeat the same requirement. Each failure to comply with a fresh order may constitute a separate contempt and justify a further term of imprisonment. On each occasion, however, imprisonment must be necessary and proportionate. A committal sentence may both punish past disobedience and seek to coerce future compliance.

The father appealed against MacDonald J’s order committing him to prison for 12 months for breaches of orders requiring him to secure the return of his four children from Somalia and to provide the PIN and passwords for mobile telephones held for forensic examination. The decision was reported at [2023] EWHC 1248 (Fam).

The father contended, among other matters, that compliance was impossible while he was imprisoned, that he had repeatedly been punished for the same conduct, that he had lacked proper legal representation and notice, and that further imprisonment served no legitimate purpose. The central issues were whether the judge had made the necessary finding that the father could comply, whether each breach was a separate contempt, and whether the 12-month sentence was lawful and proportionate.

1. Appeal dismissed. The judge had necessarily found that the father was able to achieve the children’s return. His imprisonment did not prevent compliance. He could have disclosed their whereabouts to social workers, instructed lawyers, contacted family members or provided information to the court. The surrounding evidence, including the earlier findings about his knowledge and involvement, entitled the judge to be sure of his ability to comply: per Moylan LJ, with whom Phillips and Birss LJJ agreed.

2. A person is not in contempt of a mandatory order where performance is outside that person’s power. The applicant retains the burden of proving deliberate disobedience to the criminal standard. Nevertheless, Re A established that the applicant need not prove that a particular step was available or refute every obstacle raised. Ability to comply may be proved by inference from the surrounding evidence. The circumstances differed materially from Re A, where there had been no finding that the father could achieve the child’s return.

3. The father had not been punished repeatedly for the same contempt. In accordance with Re W, a court may make successive mandatory orders requiring the same positive action. Failure to comply with each fresh order constitutes a new contempt and may expose the defaulter to a further term of imprisonment. Whether another term is justified must be assessed afresh for necessity and proportionality.

4. The 12-month sentence was permissible under section 14 of the Contempt of Court Act 1981, which fixes a two-year maximum for committal by a superior court. The judge was entitled to impose that sentence partly to punish past disobedience and partly for its coercive effect. Great weight was due to the first-instance judge’s assessment that coercion had not run its course. The seriously harmful impact of imprisonment on the father did not make the sentence plainly wrong.

5. The procedural complaints did not undermine the order. The father had been given information and time to obtain representation, and the hearing had been adjourned to ensure adequate notice. The committal order did not breach his civil or human rights. He remained able to seek discharge by purging his contempt, most effectively by explaining how the children could be returned to England.

1. Court of Appeal (Civil Division): The father’s appeal was dismissed by [2023] EWCA Civ 1214. The court upheld the finding of contempt and the 12-month term of imprisonment.

2. High Court, Family Division: MacDonald J found that the father had breached the orders of 16 February and 3 March 2023 and committed him to prison for 12 months: [2023] EWHC 1248 (Fam).

3. Earlier committal proceedings: MacDonald J had previously found the father in contempt for failing to disclose the children’s whereabouts and imposed a three-month term: [2022] EWFC 160. Further orders and committal proceedings followed before HHJ Singleton KC.