Adil Lahmer v Chaimae Chat Kahia

For committal for breach of a mandatory return or contact order, the applicant must prove beyond reasonable doubt that the defendant was able to comply and deliberately failed to do so. The burden remains on the applicant throughout. Inability defeats contempt, but difficulty or inconvenience does not amount to impossibility. Ability may be inferred from the totality of the evidence, including earlier statements and findings made to the civil standard, provided the committal judge reaches an independent conclusion applying the criminal standard. Expert evidence about foreign law and the absence of evidence supporting an alleged foreign restriction may establish that compliance remained within the defendant’s power. Failure to prove breach of one ancillary obligation does not necessarily undermine a separate return order.

The father appealed against a committal order made by Peel J in wardship proceedings concerning his five-year-old son, V. The father had failed to comply with an order requiring V’s return from Algeria, had not purchased return tickets, and had not facilitated indirect contact with the mother. He was sentenced to 12 months’ immediate imprisonment, with shorter concurrent terms for the other breaches.

The appeal challenged the findings of breach, rather than the sentence. The central issues were whether the father had the ability to comply, whether the judge was entitled to rely on earlier statements and findings made to the civil standard, and whether alleged practical or legal obstacles in Algeria prevented compliance.

Appeal dismissed. The appeal was against the findings of breach, not the sentence. The Court granted permission to amend the appeal notice accordingly.

1. For committal, the applicant bears the burden throughout of proving beyond reasonable doubt that the defendant deliberately failed to do what the order required and that compliance was within the defendant’s power. Inability to comply defeats contempt, whereas difficulty or inconvenience does not amount to impossibility. The principles summarised in Bailey v Bailey (Committal) [2022] EWFC 5, including the reference to Perkier Foods Ltd v Halo Foods Ltd [2019] EWHC 3462 (QB), were applicable.
2. Peel J was entitled to consider earlier findings made by Sir Jonathan Cohen to the civil standard, while reaching his own conclusion on contempt to the criminal standard. The father’s repeated statements that he alone controlled V’s movements, and that he would not return V, were relevant evidence of his power and state of mind. His late assertion that the grandmother prevented compliance could properly be rejected.
3. The judge was entitled to rely on expert evidence that the only effective route to return under Algerian law was the father’s consent, to which the Algerian court would give effect. There was no evidence that the Algerian court had made an order preventing V’s departure. The proposed fresh evidence had no real prospect of materially affecting the result.
4. The failure to establish breach of the separate obligation concerning identification of a third party did not show that the father lacked power to comply with the return order. The judge was also entitled to find breach of the indirect-contact obligation because he was satisfied that the father could ensure that arrangements were implemented. The findings of contempt were therefore upheld.

• Court of Appeal (Civil Division): Granted permission to amend the appeal notice and dismissed the appeal against the findings of breach.
• High Court of Justice, Family Division: Peel J found the father in contempt for breaching return and indirect-contact obligations and imposed an immediate 12-month custodial sentence, with concurrent shorter terms for additional breaches.