May 19, 2023
The Court of Appeal, Lord Justice Baker, with whom Lady Justice Andrews, and Lord Justice Nugee agreed, clarified the legal test for an appeal against a contempt of court sentence in a family case.
The appeal involved an immediate custodial sentence of six months for contempt of Court. The sentence was imposed following multiple alleged breaches of Court orders intended to secure the return of children from Iran to the UK, including one alleged breach where the Appellant expressed an intent not to comply with the Court order.
On the Respondent’s case, she visited the Appellant in Iran as he was spending more time in Iran following the death of his mother. During her visit, the Appellant sought to register his marriage with the Respondent in Iran. Fearing the consequences for her and the children, she decided to leave Iran with the children. On the Appellant’s case, she was required to obtain the Appellant’s consent before she could leave with the children. As she failed to obtain the same, she was apprehended attempting to leave Iran with the children without the Appellant’s consent: she then abandoned the children at Tehran Airport, so that the Appellant was forced to take custody of them by default.
Upon her return to the UK, the Respondent commenced proceedings for the return of the children to the UK. The children were made wards of the Court. A series of orders were made intended to effect the return of the children to the UK. Amongst other orders, the Court orders made provision for the Appellant to sign a notarised agreement consenting to the return of the children to the UK for a Court hearing. It was alleged that the Appellant failed to comply and one occasion indicated that he had no intention of complying with the Court order.
The Respondent commenced contempt of Court proceedings for various breaches of the Court orders. Mr Justice MacDonald found the breaches proven and imposed a six month custodial sentence for the relevant breaches.
On appeal, the Court of Appeal considered the relevant principles for reversing a contempt of court sanction in family proceedings, and determined whether the reasoning of their Lordships in the civil case of Lovett & Anor v Wigon Borough Council [2022] EWCA Civ 1631 applied to contempt of court in family proceedings. In that case, Birss LJ, with whom Stuart-Smith LJ and Edis LJ agreed, set out in a series of cases detailed guidance about the sentencing for breaches of orders under Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014. At paragraph 47 in Lovett, their Lordships condensed complex sentencing guidelines to three levels of culpability, namely:
“(A) high culpability – very serious breach or persistent serious breaches, (B) deliberate breach falling between (A) and (C); and (C) lower culpability – minor breach or breaches”.
At [56], their Lordships held:
“It cannot be over emphasised that the task of sentencing a defendant for breach of orders in contempt of court is a multifactorial exercise of judgment based on the particular facts and circumstances of the case before the judge. Any sentence must be just and proportionate.”
The Court of Appeal applied this reasoning and dismissed the appeal holding that the judge carried out a “multifactorial exercise of judgment based on the particular facts and the circumstances” and the sentence he passed was “just and proportionate”.
Arfan Khan acted for the Appellant instructed by CV Brooks Solicitors.
The judgment can be accessed here: https://caselaw.nationalarchives.gov.uk/ewca/civ/2023/532