Manchester City Council v Maryan Yusef & Ors

Contempt of an order requiring a parent to secure the return of children must be proved beyond reasonable doubt. The applicant need not identify a particular step which would certainly have secured the return, or refute every obstacle raised by the respondent. It is sufficient to establish that the respondent could achieve the return and deliberately failed to take available steps.

Imprisonment remains permissible for successive breaches requiring the same obligation. The court must decide necessity and proportionality afresh at each hearing, considering previous custody and whether imprisonment retains a coercive, rather than purely punitive, function.

Manchester City Council applied to commit the father for breach of orders requiring him to secure the return of his four children from Somalia and to provide the PIN numbers and passwords for mobile telephones held by the local authority.

The father was imprisoned on earlier occasions for related breaches and remained in custody. He asserted that imprisonment prevented him from communicating with relatives or assisting the children’s return, and denied knowing their whereabouts. The court considered whether the two further breaches were proved and, if so, whether another custodial sentence was necessary and proportionate.

1. Breaches proved. The father’s failure to provide the PIN numbers and passwords was deliberate. He knew the information, could provide it, and objected to disclosure because he feared misuse. The breach was therefore proved beyond reasonable doubt.
2. The return order was also breached. Although imprisonment restricted the father’s communications, it did not make compliance impossible. The local authority had provided means by which he could assist. He could disclose the telephone information, meet or communicate with the social worker, authorise the children’s return, and communicate through relatives or the local authority. The court was satisfied beyond reasonable doubt that he could achieve the return but had failed to take available steps.
3. The principles in Re A (A Child) (Removal from Jurisdiction: Contempt of Court) [2009] 1 WLR 1482 applied. The applicant bears the burden throughout. Deliberate disobedience requires proof that the respondent could bring about the return, but proof of a particular available step is unnecessary where the conclusion can be drawn from the surrounding evidence.
4. Under Wilkinson v Anjum [2011] EWCA Civ 1196, successive custodial sentences for successive breaches of orders imposing the same obligation are legally permissible. The court must adopt a stage-by-stage approach, considering the individual facts, earlier sentences, cumulative custody, necessity, proportionality and whether the coercive element of imprisonment remains effective.
5. The continuing harmful effect on the mother and children was a powerful aggravating factor, applying El Zubaidy v Borg [2023] EWCA Civ 148. The coercive purpose of imprisonment had not expired. No reasonable alternative existed. The father was sentenced to an immediate total term of 12 months’ imprisonment, and further orders were made requiring return, written consent and disclosure of the telephone information by 30 November 2023.

The judgment records that the father’s earlier committal decision of 11 May 2023 was appealed and that the Court of Appeal dismissed the appeal on 20 October 2023. The citation of that decision was not stated in the judgment.