Omay Ali Elhag Elkndo v Elnoaman Gassam Elsyed (Committal: Sentence)

Sentencing for contempt of court must mark the court’s disapproval and promote future compliance. The penalty must remain proportionate to the seriousness of the contempt. Imprisonment is a measure of last resort and is appropriate only where the conduct is so serious that no other penalty will suffice. The court must assess the length of imprisonment independently of whether execution will be suspended, and the sentence should bear a reasonable relationship to the statutory maximum. Repeated deliberate breaches, prolonged non-compliance, misleading the court and the absence of mitigation may justify immediate imprisonment. A contemnor may apply to purge the contempt where compliance with the underlying order makes that appropriate.

The claimant sought committal of the defendant for multiple contempts arising from breaches of family court orders concerning the return of children to England and Wales, attendance at hearings and notification of their whereabouts. In an earlier judgment, reported as [2024] EWHC 2204 (Fam), the court found several contempts proved after proceeding in the defendant’s absence. Sentence was adjourned to allow him to consider the findings and obtain representation. He did not attend the sentencing hearing and was not represented. The central issue was the appropriate penalty for the proved contempts.

1. The court imposed an overall sentence of fifteen months’ imprisonment. Twelve months were imposed concurrently for failures to return or facilitate the return of the children. Three months were imposed concurrently for failures to attend court as ordered, but consecutively to the twelve-month term. A further four-month term for failing to notify the Tipstaff of the children’s address and knowingly causing them to change residence was concurrent.

2. Under Part 37 of the Family Procedure Rules 2010, contempt sentencing has two objectives: marking the court’s disapproval of disobedience and securing future compliance. The seriousness of the conduct must be assessed in that context. The disposal must be proportionate, and the court has wide powers of sanction.

3. The court may impose imprisonment of up to two years or an unlimited fine under section 14(1) of the Contempt of Court Act 1981. Imprisonment is not automatic for breach of a family order, nor is a first offence an automatic bar. It remains a last resort. The court must be satisfied that the contempt is so serious that no other penalty is appropriate.

4. The length of imprisonment must be determined without reference to whether the committal will be suspended and must bear a reasonable relationship to the statutory maximum. On the facts, repeated deliberate breaches over an extended period, the defendant’s failure to use repeated opportunities to comply, and his egregious misleading of the court were sufficiently serious to justify immediate imprisonment. The defendant would serve one-half of the sentence in custody once apprehended.

5. It remained open to the defendant to apply to purge his contempt and obtain release if the children were returned to the jurisdiction pursuant to the return orders.

The earlier committal findings were made in the same proceedings and reported at [2024] EWHC 2204 (Fam). Sentence was adjourned and was determined by the present judgment.