D (Contempt: Sentencing), Re

Sentencing for contempt in family proceedings has two objectives: to mark the court’s disapproval and to secure future compliance. The sentence must reflect the intrinsic gravity and seriousness of the contempt and remain proportionate. Imprisonment is a measure of last resort. It is neither an automatic punishment for breach of a family order nor automatically unavailable for a first offence. Where imprisonment is imposed and suspended, its length must first be fixed without reference to suspension and must bear a reasonable relationship to the maximum available term. Suspension may then be ordered on appropriate, time-limited conditions directed to securing compliance.

The defendant had previously been found in breach of two family court orders requiring him to sign documents enabling the mother and their young child to leave Algeria and return to England and Wales. Sentencing was adjourned to allow an opportunity for compliance. The defendant did not comply and relied on mental and physical ill health, past trauma, cultural pressure and the consequences of imprisonment in mitigation.

The court therefore had to determine the appropriate sentence for the two contempts, including whether immediate imprisonment was necessary and whether its execution should be suspended.

1. Applicable principles. The court adopted and applied the sentencing guidance in Omay Ali Elhag Elkndo v Elnoaman Gassam Elsyed (Committal: Sentence) [2024] EWHC 2230 (Fam). The purposes of contempt proceedings are to mark disapproval and to secure future compliance. Seriousness must be assessed both by reference to those objectives and to the intrinsic gravity of the conduct. The sentence must be proportionate to the seriousness of the contempt.
2. The court has wide powers of sanction under Family Procedure Rules 2010, rules 37.4 and 37.9.1. It may impose imprisonment for up to two years or an unlimited fine. If imprisonment is imposed, its execution may be suspended for an appropriate period and on appropriate terms. The length of the term must be fixed without reference to suspension and must bear a reasonable relationship to the two-year maximum.
3. Imprisonment is a measure of last resort. The court must be satisfied that the conduct is so serious that no other penalty is appropriate. Imprisonment is not an automatic punishment for breach of a family order, but the fact that the contempt is a first offence does not make imprisonment unavailable.
4. The defendant deliberately declined the further opportunity to comply with the orders. His continuing refusal, despite an apology, made the breaches serious. His mental and physical health, vulnerability, past trauma, cultural concerns and the practical consequences of imprisonment were taken into account as mitigation.
5. A sentence of 28 days’ imprisonment for each breach was imposed, with the terms running concurrently. In light of the mitigation, execution of the committal order was suspended for six months on condition that the defendant take no steps, personally or through servants or agents, to prevent the mother or child from travelling to England and Wales. The defendant was reminded that compliance with court orders is mandatory.