Private Law
May 2023

03 July 2023
Appeal against a six month prison sentence for contempt of court refused by the Court of Appeal
Allami v Fakher [2023] EWCA Civ 532
  • Background; this matter was an appeal against an order by MacDonald J to commit the appellant (“F”) to prison for six months for contempt of court following a serious of breaches made in Family Law proceedings.
  • F and the respondent (“M”) hold dual Iranian and British citizenship. They married under Sharia law in 2007 and underwent a civil marriage ceremony in 2008. There are two children, born 2008 and 2012, who also hold dual Iranian and British citizenship. M asserted that the father was emotionally and psychologically abusive as well as violent to the children which was denied by the father.
  • In July 2021 the father travelled to Iran with the children from the UK on return tickets. F applied to register the marriage with the Iranian authorities. M’s case was that she was worried about the consequences of such registration for her and the children and booked earlier flights back to the UK. On 3 August 2021 M attempted to leave Iran with the children only to be told by Iranian authorities that F had withdrawn his consent for them to leave the country. F alleged that M made no attempts to obtain his consent to leave Iran with the children, with M’s case being that fearing that she would be unable to return to the UK, she left the children with the maternal grandparents with a plan to return to the UK to seek the children’s return. M asserted that she initially tried to negotiate the return of the children to the UK with F and having failed in doing so, filed an application to the High Court in this jurisdiction for an order for the return of the children. A without notice hearing was held the following day in which Judd J made a passport order authorising the Tipstaff to seize F’s passport. When F travelled to the UK his passport was seized and retained by the Tipstaff.
  • At a further hearing before Newton J on 18 November 2022 the children were made wards of the court and a number of orders were made to secure the children’s return to this jurisdiction. The order included recitals of F agreeing to execute a notarised agreement permitting the children to leave Iran and travel to this country to attend the hearing and that he had informed the court that he retained an English driving licence to obtain the notarised consent which he was to surrender to the Tipstaff once this was done. F was ordered to file the notarised consent once completed. Immediately after the hearing F surrendered his licence to the Tipstaff. Following this, a number of hearings took place where further orders were made to secure the children’s return which F did not comply with as well as stating he would not do so. M applied for F’s committal for these breaches. Breaches of tagging orders were cited in the application but not pursued by M at the contempt hearing.
  • MacDonald J dealt with the contempt hearing and was satisfied beyond a reasonable doubt that F had frustrated his own ability to obtain the notarised agreement which had been ordered on multiple occasions. Nine findings of contempt were made in line with M’s application. Submissions of mitigation were considered with legal principles being addressed at para [20-21], including the general legal principles applicable for sentencing a contemnor and the two functions of contempt as per Patel v Patel & Ors [2017] EWHC 3229 (Ch) at para [22-23] of that judgment;

"As Marcus Smith J made clear in Patel v Patel & Ors [2017] EWHC 3229 (Ch) at [22] and [23] a penalty for contempt has two primary functions. First, it upholds the authority of the court by marking the disapproval of the court and deterring others from engaging in conduct comprising contempt. Secondly, it acts to ensure future compliance. In some cases, therefore, and, in particular, those cases where the contempt arises from a breach of the court order, a penalty [will] have the primary objective of ensuring future compliance with that order."

  • A sentence of 6 months’ imprisonment was ordered. The judge was not satisfied that a suspended sentence with a view of securing F’s compliance with the orders of the court would serve any purpose. A further order was made for the return of the children to this jurisdiction, providing an opportunity for F to purge his contempt. F filed for notice of appeal against the order. F’s appeal broadly argued that the immediate custodial sentence was disproportionate; the judge had not given sufficient weight to the assertion that F’s non-compliance with earlier orders was attributable in part to the acts and omissions of the tagging company; that the judge overlooked the children not suffering significant harm as a result of the breaches; that the father had already made clear he would not comply with orders and therefore the sentence was an “exercise in futility”; and that after an earlier hearing in front of ICC Judge Mullen that F had signed written consent for the return of the children and this was given to the children’s solicitors. During the course of the contempt hearing enquiries were made of the children’s solicitor who stated by email;

"Yes Mr Fakher did sign a document which was witnessed by Mr Lennard [the father's McKenzie friend] but part of it was deleted. We went into court to ask the judge about it and he insisted it was signed and notarised as had been ordered – I am sure this is what happened. Then he told the judge he wouldn't comply. ICC Mullen urged him to sign it in front of a notary in the court building but Mr Fakher said to the judge he would not sign it”

  • A number of authorities were cited on F’s behalf at para [25-29], including;
  • Hale v Tanner [2000] EWCA Civ 5570 which outlined ten points relevant to sentencing in contempt of court and the same two functions of contempt as per Patel v Patel & Ors.
  • Wilkinson v Anjum [2011] EWCA Civ 1196 in which McFarlane LJ addressed the point where the coercive element by imprisonment no longer applied.
  • Ansah v Ansah [1077] 2 WLR 760 and Re B (Contact Order: Enforcement) [2010] 1 WLR 419 which addressed the principle that in family proceedings committal should be the order of last resort since it may cause further damage to relations within the family and emotional harm to the children.
  • Finally the case of Lovett v Wigan Borough Council [2022] EWCA Civ 1631 which set out guidance for breaches of orders under Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014, classification of three levels of culpability of breaches, and the observation that “"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."
  • MacDonald J was plainly aware that an immediate custodial sentence was a course of last resort and that “committal to prison is appropriate only when no reasonable alternative exists". He was “extremely justified” in concluding that the breaches were so serious that an immediate sentence was required.
  • Suspending the sentence would have been pointless given F’s repeated assertions that he would not comply with orders.
  • In this particular case there was no merit in the argument that because F refused to obey orders that imprisonment is futile.
  • There is no merit in the argument that the children did not suffer significant harm as they were separated from the mother, their primary carer, due to the deliberate actions of F.
  • The fact F had signed a document giving his written consent on an un-notarised document added no merit to his appeal as there was no evidence about this document being adduced in a form compliant with the rules of fresh evidence on appeal. In any event, per the children’s solicitor’s email, any fresh evidence about the written consent at that hearing would have no impact on the outcome of the appeal. Successive judges had ordered the father to execute the notarised document.
  • The judge carried out a “multifactorial exercise of judgment based on the particular facts and circumstances of the case" and the sentence he passed was "just and proportionate".
  • The appeal was dismissed.

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