Maryam Allami v Ali Fakher

An immediate custodial sentence for contempt in family proceedings remains a measure of last resort. It may nevertheless be necessary where repeated, deliberate breaches of orders are serious and no reasonable alternative exists.

Sentencing serves both to mark the court’s disapproval and deter disobedience, and to secure future compliance. A sentence should not be suspended on a condition of compliance where the contemnor has unequivocally and repeatedly refused to comply. Such refusal does not make an initial custodial sentence futile. The coercive purpose of imprisonment can expire only after a period sufficient to mark the court’s disapproval. Sentencing remains a multifactorial exercise requiring a just and proportionate outcome.

The father appealed against MacDonald J’s order in the Family Division committing him to prison for six months for contempt of court.

In wardship proceedings concerning the parties’ children, successive orders required the father to cause their return from Iran and to execute a notarised agreement permitting their travel. He neither returned the children nor executed the agreement. MacDonald J found nine breaches proved beyond reasonable doubt and rejected the father’s case that compliance had been prevented by the surrender of his driving licence or failures by an electronic-tagging company.

The sole amended ground of appeal was that an immediate six-month custodial sentence was disproportionate. The central issue was whether the judge should instead have imposed a suspended sentence or another alternative disposal.

Appeal dismissed. Baker LJ, with whom Andrews and Nugee LJJ agreed, held that the immediate sentence of six months’ imprisonment was just and proportionate.

1. Committal to prison was properly treated as a last resort. MacDonald J had expressly directed himself that imprisonment was appropriate only where no reasonable alternative existed. He was entitled to find that the father’s persistent and deliberate breaches of four High Court orders, coupled with conduct intended to obstruct compliance, made an immediate custodial sentence necessary.

2. The judge was entitled to reject the father’s explanations based on the tagging company. His findings that the father had frustrated his own ability to obtain the required notarised agreement, and had sought to avoid tagging, were supported by the evidence. The mother’s lack of support for imprisonment did not reduce the seriousness of the breaches she continued to pursue.

3. A suspended sentence conditional on executing the notarised agreement would have been pointless. The father had repeatedly and without qualification said that he would not comply. The two functions of a contempt penalty are to mark disapproval and deter disobedience, and to secure future compliance: see [2000] EWCA Civ 5570 and [2017] EWHC 3229 (Ch).

4. The court applied the observation in [2011] EWCA Civ 1196 that imprisonment may eventually lose its coercive effect. That stage arises only after a contemnor has served a period sufficient to mark the court’s disapproval. A present refusal to comply did not make the initial custodial sentence futile.

5. The children’s separation from their mother remained a serious consequence of the father’s deliberate conduct. The late assertion that he had signed an un-notarised written consent neither complied with the rules for fresh evidence nor mitigated the repeated failures to execute the ordered notarised document. The sentencing exercise was careful and consistent with the multifactorial, just and proportionate approach in [2022] EWCA Civ 1631.

• Court of Appeal (Civil Division): The father’s appeal was dismissed in [2023] EWCA Civ 532.
• High Court of Justice, Family Division: MacDonald J found nine contempts proved beyond reasonable doubt and imposed an immediate sentence of six months’ imprisonment for repeated breaches of orders requiring the return of the children and a notarised travel agreement.