In court
| DOI | 10.1177/0264550517730632 |
| Date | 01 September 2017 |
| Published date | 01 September 2017 |
| Subject Matter | In court |
In court
In court
Nigel Stone, Visiting Fellow in the School of Psychology, University of East Anglia,
reviews recent appeal judgments and other judicial developments that inform
sentencing and early release.
General sentencing issues
Child abduction: General principles
Considering two otherwise unrelated instances of child abduction under the Child
Abduction Act 1984, one under s1 (offence committed by a parent who takes or
sends the child out of the UK without the appropriate consent) and the other under s2
(committed by other persons who without lawful authority or reasonable excuse take
or detain a child under the age of 16 so as to remove or keep that child out of the
lawful control of another), both punishable by seven years imprisonment, the Court
of Appeal sought to give general guidance to sentencers in the absence of any
Guideline from the Sentencing Council.
Applying the broad statutory approach of assessing the seriousness of an offence
by reference to an offender’s culpability and the harm caused (CJA 2003 s143), the
Court identified the following principles:
A high level of harm is exemplified by a very lengthy period of abduction or
detention, a serious effect on the child (whether emotional or otherwise), or
serious damage to, or severance of a loving relationship with, a parent,
siblings, or other relevant person.
High culpability may be exemplified by persistent non-disclosure or conceal-
ment of the place of abduction, significant and sophisticated planning,
breach of a court order or disregard of court process, intention to sever the
relationship between the child and another relevant person, or abduction for
a criminal purpose (for example a sexual purpose, female genital mutilation,
or forced marriage).
A high level of harm combined with high culpability will attract five to seven
years imprisonment.
The lower end of the spectrum of harm includes situations where there has
been a brief period of abduction or detention, minimal effect on the child, or
minimal effect on the relationship between the child and other affected party.
Probation Journal
2017, Vol. 64(3) 309–327
ªThe Author(s) 2017
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DOI: 10.1177/0264550517730632
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The Journal of Community and Criminal Justice
Lesser culpability arises where the abduction or detention is impulsive or
spontaneous, or where there has been prompt subsequent disclosure of
the place of abduction, enabling effective action to be taken by the
authorities.
Some of the more minor cases will not be dealt with by the criminal justice
system at all but by the Family Court by way of contempt proceedings but on
conviction a range between a high level community order and a term of 18
months’ imprisonment will be appropriate.
Where a case combines high culpability and low harm or vice versa, or a
combination of medium harm and medium culpability, an intermediate sen-
tencing range of 18 months to five years applies.
Medium harm arises, for example, where there has been some emotional or
other effect upon the child’s life or there is some harmful effect upon the
relationship between the child and the adult from whose custody or control
a child has been taken; medium level of culpability arises where some degree
of planning is involved.
In considering where to place a case within a range the court will also need to
have regard to aggravating and mitigating factors in the usual way. Obvi-
ously features common to all offences such as previous good or bad character
will play their part. Non-exhaustive offence-related aggravating factors
include: exposing the child to risk of harm; abduction of an already vulner-
able child; group action; use of significant force; abduction to a non-Hague
Convention country; abduction to a place with which the child has no prior
links; and, in s.2 cases, removal from the jurisdiction. Non-exhaustive mitigat-
ing factors include enabling prompt contact to take place with the adult
deprived of custody or control, compliance with court orders, and coopera-
tion with authorities.
Account the effect of a sentence on a child where the offending person is the
sole carer for the child abducted or other children (this is not a matter of
mitigation personal to the offender but arises from the need for the court to
have regard to the interests of a child or children affected.
The Appeal Court then sought to apply the above as follows:
RH Aged in her early 30s, of previous good character and mother of a girl
aged eight, the subject of an order for contact with the father, RH went abroad
with her new partner, in breach of a Family Court prohibited steps order
forbidding her from moving the child from the jurisdiction. She remained
abroad for around three months, in the interim refusing to disclose her
whereabouts to the police. Following RH’s return and before sentence the
Family Court had ordered that the child’s father should have no direct contact
with her, given his extended lack of contact prior to the abduction. In imposing
sentence of 20 months’ imprisonment following mid-trial change of plea, the
Crown Court judge found that RH had lied in suggesting that the child had been
removed from the jurisdiction because she was distressed by the contact
arrangements with her father. This had been a premeditated settled plan, designed
310 Probation Journal 64(3)
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