Mohammed El Zubaidy v Tanya Borg

A superior court may impose successive terms of imprisonment for repeated failures to comply with mandatory orders. The two-year maximum in section 14 of the Contempt of Court Act 1981 applies to a single committal occasion, rather than the cumulative sentences imposed for distinct contempts.

Each further sentence must nevertheless be necessary and proportionate. The court must consider previous committals, the aggregate time served, any useful criminal-sentencing comparison, and the punitive and coercive purposes of committal. Further punishment may eventually become excessive, but that point depends on the particular facts. A contemnor cannot secure immunity from further punishment merely by declaring an absolute intention never to comply. Continuing harm caused by the contempt and the possibility of compliance remain material.

The father removed two of the parties’ children to Libya and repeatedly failed to comply with Family Division orders intended to secure their return. Before the order under appeal, he had received four contempt sentences totalling five years.

Sir Jonathan Cohen found two further breaches of orders requiring the father to execute an attested travel consent and to use his best endeavours to procure the children’s return. He imposed concurrent terms of 12 months’ imprisonment. The father appealed, contending principally that the sentence was manifestly excessive given the cumulative imprisonment, the two-year statutory maximum, the limited coercive effect of another sentence, a comparison with criminal child abduction, and the impact on the parties’ son.

The central issue was whether another term was necessary and proportionate despite the previous sentences and the father’s stated refusal to comply.

1. Appeal dismissed. Bean LJ, with whom Moylan and Lewis LJJ agreed, held that the concurrent 12-month sentences were neither erroneous in principle nor manifestly excessive.

2. Section 14 of the Contempt of Court Act 1981 ended indefinite imprisonment for contempt and limited the term imposed on any single occasion. It does not cap the cumulative duration of sentences lawfully imposed for successive contempts. Repeated mandatory orders may therefore be enforced by successive committals, even after the aggregate sentences exceed two years.

3. That power must be exercised through a proportionate, stage-by-stage and hearing-by-hearing assessment. On each occasion, the court must decide whether a further term is necessary and proportionate. Relevant matters include the previous orders, the aggregate imprisonment already served and, where useful, the likely sentence for comparable criminal conduct. Further punishment may eventually become excessive, but when that point is reached is a fact-sensitive question.

4. The comparison with the maximum sentence for child abduction did not establish excessiveness. Had two children been abducted, separate counts could have produced a maximum of 14 years. Guilty-plea credit and totality might reduce the sentence, but the supposed criminal maximum was not confined to the period advanced by the father.

5. The father’s stated determination never to comply did not prevent another committal. Such defiance may aggravate the contempt. Although the coercive effect was unlikely, the judge was entitled to find that it was not certainly exhausted. The punitive purpose remained important, as did the continuing grave harm to the mother and children. A contemnor could apply to purge the contempt upon deciding to comply.

6. The approach in Button v Salama, insofar as it suggested that aggregate imprisonment beyond twice the statutory maximum subverted Parliament’s intention or that an early declaration of non-compliance carried decisive weight, departed from the more nuanced binding approach in Re W. Mahoney was distinguishable because withholding an object differed materially from the continuing harmful refusal to facilitate the return of children.

1. Court of Appeal (Civil Division): The father’s appeal was dismissed by the court in [2023] EWCA Civ 148. The concurrent 12-month committal sentences were upheld.
2. High Court (Family Division): Sir Jonathan Cohen found the father in contempt for breaching two orders made on 1 August 2022 and imposed concurrent terms of 12 months’ imprisonment. No citation for that decision is stated.