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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Allami v Fakher [2023] EWCA Civ 532 (19 May 2023) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2023/532.html Cite as: [2023] EWCA Civ 532 |
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CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mr Justice MacDonald
FD22P00491
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE ANDREWS
and
LORD JUSTICE NUGEE
____________________
MARYAM ALLAMI |
Applicant/ Respondent |
|
- and – |
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ALI FAKHER |
Respondent/Appellant |
____________________
Mani Basi (instructed by Dawson Cornwell LLP) for the Respondent
Hearing date : 3 May 2023
____________________
Crown Copyright ©
LORD JUSTICE BAKER :
"1. The father is in breach of the order of Newton J dated 18 November 2022, requiring him to send a copy of a notarised document consenting for the children travelling from Iran to England, immediately the same has been completed.
2. The father is in breach of the order of Newton J dated 18 November 2022 requiring him to cause the children to be returned to the maternal family in Iran, until they return to England and Wales for the purpose of physically attending the final hearing on 8 and 9 December 2022 in London
3. The father is in breach of the order of Newton J dated 18 November 2022 requiring him to cause the children to be returned to the jurisdiction of England and Wales by no later than 5 December 2022.
4. The father is in breach of the order of ICC Judge Mullen dated 12 December 2022, requiring him to return the children to the jurisdiction of England and Wales by 15 December 2022, and upon return place them in the care of their mother pending further order.
5. The father is in breach of the order of ICC Judge Mullen dated 12 December 2022, requiring him to send a copy of a notarised document consenting to the children travelling from Iran to England, immediately the same has been completed.
6. The father is in breach of the order of Moor J dated 16 December 2022 requiring him to return the children to the jurisdiction of England and Wales by 6 January 2023, and upon return place them in the care of their mother pending further order.
7. The father is in breach of the order of Moor J dated 16 December 2022 requiring him to send a copy of a notarised document consenting to the children travelling from Iran to England, immediately the same has been completed.
8. The father is in breach of the order of Mr Colton KC dated 9 January 2023 requiring him to return the children to the jurisdiction of England and Wales by 19 January 2023 and upon return placing them in the care of their mother pending further order.
9. The father is in breach of the order of Mr Colton KC dated 9 January 2023 requiring him to send a copy of a notarised document consenting to the children travelling from Iran to England, immediately the same has been completed."
The application also cited breaches of the tagging orders. In the event, these were not pursued by the mother at the hearing.
"(a) The court can order imprisonment, immediate or suspended, and/or a fine, or adjourn consideration of penalty for a fixed period or enlarge the injunction.
(b) In sentencing the contemnor, the disposal must be proportionate to the seriousness of the contempt, reflect the court's disapproval and be designed to secure compliance in the future.
(c) Committal to prison is appropriate only where no reasonable alternative exists.
(d) Where the sentence is suspended or adjourned, the period of suspension or adjournment and the precise terms for activation must be specified.
(e) Imprisonment is not the starting point and is not the automatic response to a contempt of court.
(f) Equally, there is no principle that a sentence of imprisonment could not be imposed on a contemnor who has not previously committed a contempt.
(g) In assessing the seriousness of the contempt, it is right to have regard to the purpose for which it was committed and the likelihood of any risk to the process of justice.
(h) In circumstances where the disposal chosen must be proportionate to the seriousness of the contempt where an immediate term of imprisonment is appropriate it should be as short as possible, having regard to the gravity of the contempt, and must bear some reasonable relationship to the maximum sentence of two years imprisonment that is available to the court.
(i) Where a term of imprisonment is the appropriate sentence, the length of the term should be determined without reference to whether that term is to be suspended or not.
(j) Having determined the length of the term of imprisonment, the court should expressly ask itself whether a sentence of imprisonment might be suspended. The power of the Family Court to suspend a sentence is separate from the power of the criminal to suspend the sentence. In particular, in the Family Court, the sentence may be suspended on terms.
(k) The court should briefly explain its reasons for the disposal it decides to impose it if finds the contempt proved."
"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) the father's age – 57;
(b) the impact of a sentence of imprisonment on the children;
(c) the fact that [the] mother had said that she did not seek his imprisonment;
(d) the fact that the mother had not pursued some of the alleged breaches, in particular relating to the tagging orders.
"8. However, against this, I am satisfied that in this case there are very significant aggravating factors. The aggravating factors in this case include the repeated breaches of court orders over an extended period of time. The father has deliberately, in my judgment, failed to comply with no less than four orders of the High Court, despite repeated opportunities being given to him by this court to allow compliance. Notwithstanding those repeated opportunities, the father has repeatedly set his face deliberately against the compliance with the orders of the High Court.
9. A further aggravating factor in this case is what I am satisfied has been the father's wilful acting in a manner designed to make compliance with the orders difficult or impossible as a result of his own conduct. In particular, his early surrendering of his driving licence under the order of Newton J and his lawful misinterpretation of the order of ICC Judge Mullen with respect to tagging and his repeated avoidance of the representatives of the tagging company when they made repeated attempts to tag him.
10. Finally, I am satisfied that an additional aggravating factor in this case is the father's statements, both to this court and previous courts, that he has absolutely no intention of complying with the orders of the court. Those assertions have been given without caveat. The continued multiple breaches, it must also be noted, have left the children stranded in the jurisdiction of Iran for an extended period.
11. Having regard to the aggravating and mitigating factors in this case, to the principles of sentencing that I have outlined which I have careful regard to and to the function of the sentence in first marking the disapproval of the court and deterring others from engaging in the conduct comprising the contempt and, second, to ensure future compliance, I am satisfied that the starting point in this case for an appropriate sentence for the breach of the orders must be one of custody. I am further satisfied that the appropriate sentence in this case is one of 6 months' imprisonment.
12. I have given some consideration to suspending the sentence of imprisonment with a view to securing the father's compliance with the orders of the court. However, in circumstances where the father has repeated to this court his settled intention not to comply with the orders of the court such a suspension would, in my judgment, serve no purpose, and certainly not serve its intended purpose.
13. In the circumstances, after careful consideration, I do not consider this an appropriate case in which to suspend the sentence of imprisonment that I have passed, and such sentence will therefore be immediate.
14. In addition, I will make a further order under the inherent jurisdiction requiring the father to facilitate the return of the children to the jurisdiction of England and Wales forthwith and provide a notarised agreement in that regard.
15. It will, of course, be open to the father to apply to purge his contempt of court and, hence, to secure his release from custody if the children are returned to the jurisdiction of England and Wales pursuant to the return order. To this end, if the father evinces an intention now to comply with the order to provide a notarised agreement, I intend to direct that the solicitor for the child attend the prison in which the father is held with his driving licence and a notary public in order that that document can now be completed.
16. If the children are not returned to England and Wales in breach of that order, it will be open to the mother to make a further application to commit the father for the breach of that order, at which time he will be liable to a further period of imprisonment if he is once again found in contempt.
17. I advise the father that he is able to apply to purge his contempt, in particular, should the children be returned to the jurisdiction as ordered by the court."
"There are two objectives always in contempt of court proceedings. One is to mark the court's disapproval of the disobedience to its order. The other is to secure compliance with that order in the future. Thus, the seriousness of what has taken place is to be viewed in that light as well as for its own intrinsic gravity."
This is in the same terms as the statement of principle recited by Marcus Smith J in the Patel case cited by the judge.
"The cases of Re Barrell Enterprises & Others [1973] 1 WLR 19 and Enfield London Borough Council v Mahoney [1983] 1 WLR 749 established that on the facts of any given case, the time may come when it is obvious that the coercive element provided by a term of imprisonment will have evaporated, and there is thus little to be gained other than pure punishment from any continued incarceration. But the facts of those two cases were stark and the evidence that the 'carrot and stick' approach had reached the end of its useful life was very clear."
"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."
"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"
Mr Khan submitted that, whilst the father had not complied with the order for a notarised agreement, he had given his consent in writing and that the breaches were therefore not as serious as found by the judge. Furthermore, this episode indicated that there was a possibility that the dispute could be settled by mediation. On that basis, he invited this Court to allow the appeal and set aside the immediate custodial sentence.
Discussion and conclusion
"failed to comply with no less than four orders of the High Court, despite repeated opportunities being given to him by this court to allow compliance. Notwithstanding those repeated opportunities, the father has repeatedly set his face deliberately against the compliance with the orders…"
In those circumstances, the episode involving the signed consent at the hearing before ICC Judge Mullen provides no mitigation whatsoever. It does nothing to diminish the seriousness of the breaches. I am wholly unpersuaded that the fact that the father had signed a written but un-notarised document gives rise to any ground for believing that there is a possibility of a mediated resolution of the dispute concerning the children's future.
LADY JUSTICE ANDREWS
LORD JUSTICE NUGEE