Samira Addou v Sidali Bennabi

Hearing date: 23 October 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 25 October 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

I shall continue to refer to the child as Z and the parents as M and F.

I have found the contempt application proved as follows:

i) F is in breach of para 3 of the order of Sir Jonathan Cohen dated 11 May 2023 which required him to “by 23.59pm on 07 June 2023 cause the return of the child [Z] to the jurisdiction of England and Wales”.

ii) F is in breach of para 12 of the order of Francis J dated 29 March 2024 which required him to “by 23.59pm on 29 March 2024 return or cause the return to England and Wales of the child and ward of the High Court [Z]”.

iii) F is in breach of para 6 of the order of Poole J dated 23 September 2024 which required him “by 23.59pm on 30th September 2024 to return or cause the return to England and Wales of the child and ward of the High Court [Z]”.

I heard mitigation by counsel on behalf of F. No more could have been said on his behalf.

Sentencing

I have wide powers of sanction (FPR 2010 r.37.9). Principally, I may impose a sentence of up to two years imprisonment ( Contempt of Court Act 1981, s.14(1)), or a fine of an unlimited amount, or make a confiscation order. I may make no order. If I impose a sentence of imprisonment, it is open to me to order that execution of the committal order can be suspended for such period or on such terms as I consider appropriate (FPR 2010 37.9(2)).

In considering the powers, and approach to be taken on sentencing, I have reminded myself of Hale v Tanner [2000] EWCA Civ 5570 in which Hale LJ (as she then was) considered the principles to apply when sentencing for committal in a family law case:

“25. In making those points I would wish to emphasise that I do so only in the context of family cases. Family cases, it has long been recognised, raise different considerations from those elsewhere in the civil law. The two most obvious are the heightened emotional tensions that arise between family members and often the need for those family members to continue to be in contact with one another because they have children together or the like. Those two factors make the task of the court, in dealing with these issues, quite different from the task when dealing with commercial disputes or other types of case in which sometimes, in fact rarely, sanctions have to be imposed for contempt of court.

26. Having said that, firstly, these cases have to come before the court on an application to commit. That is the only procedure which is available. Not surprisingly, therefore, the court is directing its mind to whether or not committal to prison is the appropriate order. But it does not follow from that that imprisonment is to be regarded as the automatic consequence of the breach of an order. Clearly it is not. There is, however, no principle that imprisonment is not to be imposed at the first occasion: see Thorpe v Thorpe [1998] 2 FLR 127, a decision of this court. Nevertheless, it is a common practice, and usually appropriate in view of the sensitivity of the circumstances of these cases, to take some other course on the first occasion.

27. Secondly, there is the difficulty, as Mr Brett has pointed out, that the alternatives are limited. The full range of sentencing options is not available for contempt of court. Nevertheless, there is a range of things that the court can consider. It may do nothing, make no order. It may adjourn, and in a case where the alleged contemnor has not attended court, that may be an appropriate course to take, although I would not say so in every case. It depends on the reasons that may be thought to lie behind the non-attendance. There is a power to fine. There is a power of requisition of assets and there are mental health orders. All of those may, in an appropriate case, need consideration, particularly in a case where the court has not found any actual violence proved.

28. Thirdly, if imprisonment is appropriate, the length of the committal should be decided without reference to whether or not it is to be suspended. A longer period of committal is not justified because its sting is removed by virtue of its suspension.

29. Fourthly, the length of the committal has to depend upon the court's objectives. 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.

30. Fifthly, the length of the committal has to bear some reasonable relationship to the maximum of two years which is available.

31. Sixthly, suspension is possible in a much wider range of circumstances than it is in criminal cases. It does not have to be the exceptional case. Indeed, it is usually the first way of attempting to...