Maryam Allami v Ali Fakher

This is an appeal against an order made by MacDonald J committing the appellant to prison for six months for contempt of court for breach of a series of orders made in the Family Division in proceedings concerning his two children.

At the conclusion of the hearing, we informed the parties that the appeal would be dismissed. This judgment sets out my reasons for agreeing with that decision.

The background can be summarised as follows.

The appellant, hereafter referred to as the father, and the children’s mother both hold dual Iranian and British citizenship. They married under Sharia law in this country in 2007 and underwent a civil marriage ceremony in 2008. The two children were born in 2008 and 2012. Each has dual Iranian and British citizenship. It is the mother’s case, denied by the father, that he was emotionally and psychologically abusive to her throughout their relationship and violent to the children.

Following the death of his own mother in 2015, the father spent increasing periods of time in Iran. In July 2021, when the father was in Iran, the mother travelled there with the children from the United Kingdom on return tickets. At that point, the father applied to register the marriage with the Iranian authorities. The mother’s case is that, because she was worried about the consequences of this for her and the children, she decided to cut the trip short and booked earlier flights back to the UK for herself and the children. On 3 August 2021, when she tried to leave Iran with the children, she was told by the authorities that the father had withdrawn his permission for the children to leave the country. She says that, fearing she herself would not be able to leave Iran, she left the children with their maternal grandparents and returned to the UK to seek the children’s return to her. The father’s case is that the Iranian authorities required his consent for the mother to remove the children from that jurisdiction and that she made no attempts to obtain it. He asserts that the mother was apprehended trying to leave without his consent and abandoned the children at Tehran Airport, as a result of which the father was forced to take custody of them by default.

It is the mother’s case that she initially tried to secure the return of the children to the UK by negotiation with the father. Having failed in these efforts, on 21 July 2022, she filed an application in the Family Division of the High Court in this jurisdiction seeking an order for the return of the children. At a without notice hearing on the following day, Judd J made a passport order authorising the Tipstaff to seize the father’s passport. A few weeks later, the father travelled to the UK and on arrival his passport was duly seized and has been retained by the Tipstaff ever since.

At a further hearing before Newton J on 18 November 2022, the children were made wards of court and a series of orders were made with the aim of securing their return to this jurisdiction. In particular, the order required the father to cause the children to be (a) returned here forthwith for the purposes of attending the final hearing then listed for 8 and 9 December 2022 and (b) placed in the care of the maternal family in Iran pending their return to this jurisdiction. The order included recitals that the father had agreed 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 which he required for the purposes of obtaining the notarised consent and which he would lodge with the Tipstaff by 4pm on 22 November 2022. The order further required the father to send a copy of the notarised consent “immediately upon completion of the same”.

Immediately following the hearing before Newton J on 18 November, the father surrendered his driving licence to the Tipstaff. It was the mother’s case at the later hearing before MacDonald J that he had done so deliberately in order to disable himself from obtaining the notarised agreement. The father asserted that it had been more convenient for him to surrender it to the Tipstaff whilst at court.

The children were neither placed in the care of the maternal grandparents in Iran nor returned to this jurisdiction for the listed final hearing. They remained living with the paternal grandfather.

The hearing on 8. 9 and 12 December went ahead before ICC Judge Mullen. By the order dated 12 December made at the conclusion of that hearing, the judge ordered the father to cause the children to be returned to this jurisdiction by midnight on 15 December 2022 and to complete a notarised document by 13 December in terms set out in the order to the effect that he unequivocally consented to the children travelling from Iran to England by 16 December and being accompanied by their maternal grandmother. Upon their return, the children were to be placed in the care of their mother pending further order. By a separate order made at the same time, the judge ordered that the father be subject to electronic tagging. It was alleged that he was a flight risk because, according to the mother, he had some 18 aliases, had convictions for offences of dishonesty, had changed his name by deed poll following the passport order and subsequently obtained a driving licence under that name.

Once again, the children were neither placed in the care of the maternal grandparents in Iran nor returned to this jurisdiction by the date prescribed in the order. They remained living with the paternal grandfather. Subsequently, the father alleged that the tagging company failed to attend at the appointed time to fit the tag and that as a result he was unable to collect his driving licence from the Tipstaff (as had been agreed but not specifically ordered) and therefore unable to execute the notarised agreement. On a subsequent occasion when the tagging company attended, the father had to be taken to hospital because he was suffering chest pains

On 16 December 2022, a further hearing took place before Moor J. The judge made a further order that the father return the children to the jurisdiction by 6 January 2023 and a further order that he execute a notarised agreement in the same terms as prescribed by ICC Judge Mullen with the additional provision that he unequivocally consented to the maternal grandparents obtaining replacement Iranian passports for the children. The order further provided that, to enable the father to notarise the document, the Tipstaff should return his driving licence; that upon execution of the document, the father should deliver the notarised document to the children’s solicitor; and that the father should not leave his home between 10pm and 6am. In addition, Moor J made a further tagging order, providing for the tag to be fitted on 16 December at any time before the start of the curfew.

As before, the children were neither placed in the care of the maternal grandparents in Iran nor returned to this jurisdiction by the date prescribed in the order. They remained living with the paternal grandfather. Once again, the father subsequently contended that the tagging company had prevented him complying with the order to execute the notarised agreement because they had failed to attend before the start of the curfew.

On 9 January 2023, a further hearing took place before Mr Simon Colton KC sitting as a deputy High Court judge. The deputy judge made a further order that the father return the children to the jurisdiction by 19 January 2023 and a further order that he execute a notarised agreement (in the same terms as prescribed by Moor J) and send a copy to the children’s solicitor. He directed that, to facilitate the execution of the notarised document, the driving licence be returned to the father by the Tipstaff (but only after it had been confirmed that he was subject to electronic monitoring under the tagging order which was renewed) and returned to the Tipstaff once notarisation had taken place. The order made by the deputy judge recorded that the father confirmed to the court that he understood the orders that were being made but had no intention of complying with them.

As on previous occasions, the father did not comply with the order. The children were neither placed in the care of the maternal grandparents in Iran nor returned to this jurisdiction by the date prescribed in the order. They remained living with the paternal grandfather. Once again, the father subsequently contended that the tagging company had prevented him complying with the order to execute the notarised agreement because they had failed to attend before the start of the curfew.

On 24 January 2023, a further hearing took place before Theis J. The father again stated that he did not intend to execute the notarised agreement nor cause the children to be returned from Iran. The judge made a further order for the return of the children and for the execution of a notarised document but did not renew the tagging or curfew orders. By this point, the father had filed a notice of appeal against the order made by ICC Judge Mullen and Moor J. On 9 February, his application for permission to appeal was refused.

On 31 January 2023, the mother filed an application to commit the father to prison for contempt of court relying in particular on the following breaches of court orders:

The hearing of the committal application took place before MacDonald J on 3 March 2023. The mother was represented, the father appeared in person assisted by a McKenzie friend who was permitted by the judge to address the court.

At the conclusion of the hearing, the judge reserved judgment until 13 March. In his judgment, the judge stated that he was satisfied beyond reasonable doubt that the father had breached the orders. The father did not dispute that he had failed to provide a notarised agreement or that the children remained in Iran. The judge considered but rejected the father’s defence that it had not been possible for him to comply. In particular, he rejected the father’s explanation for surrendering the driving licence to the Tipstaff immediately after the hearing before Newton J and found that he had done so to frustrate his own ability to obtain the notarised agreement. Having considered the unchallenged evidence provided by the tagging company, he further rejected the father’s explanation that the actions of the company had prevented him taking the steps necessary to execute the notarised document. He concluded that he was satisfied that the father sought to avoid being tagged as a means of frustrating the court’s order. He therefore made the nine findings of contempt in accordance with the mother’s application.

At that point, the judge adjourned to allow the father and his McKenzie friend to consider submissions in mitigation. Having returned to court and listened to submissions, he then delivered a further judgment. He started by setting out what he described as the general legal principles applicable to sentencing of a contemnor in these terms:

He continued:

He identified the following mitigating factors identified by the father’s McKenzie friend:

The judge indicated that he had considered those matters very carefully. He continued:

The father filed a notice of appeal against the order. The appeal notice and grounds of appeal were drafted by the appellant with assistance from his McKenzie friend. Subsequently, however, he instructed solicitors who in turn briefed Mr Arfan Khan of counsel to represent him at the appeal hearing. Mr Khan filed an amended single ground of appeal – that the judge was wrong to have sentenced him to an immediate six-month custodial sentence which was disproportionate in all the circumstances of the case – together with a skeleton argument in support. The Court is very grateful to Mr Khan for his assistance on the appeal.

Mr Khan identified a number of authorities as being of relevance to the appeal.

First, he cited the decision of this Court in Hale v Tanner [2000] EWCA Civ 5570 in which Hale LJ set out ten points relevant to sentencing for contempt of court in family cases. These include the observation (at paragraph 29):

Secondly, he referred to the observation of McFarlane LJ in Wilkinson v Anjum [2011] EWCA Civ 1196 at paragraph 41:

Thirdly, Mr Khan referred to the well-established 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. He cited the decisions in Ansah v Ansah [1077] 2 WLR 760 and Re B (Contact Order: Enforcement) [2010] 1 WLR 419 in support of this proposition.

Finally, he cited the recent decision of this Court in Lovett v Wigan Borough Council [2022] EWCA Civ 1631 in which 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. Reading his skeleton argument, it seemed to me that Mr Khan was contending that the detailed guidance was applicable to sentencing for contempt in civil and family proceedings generally. In oral submissions, however, Mr Khan did not pursue this argument, and instead confined himself to relying on two passages in the judgment. The first was Birss LJ’s classification (at paragraph 47) of three levels of culpability for breach of court orders, 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. The second was Birss LJ’s observation at paragraph 56:

In the light of those authorities, Mr Khan made the following submissions.

First, he submitted that the breaches were not so serious as to require the imposition of an immediate custodial sentence. The mother herself had not pressed for an immediate sentence. The judge had therefore started at the wrong starting point. Committal must always be the course of last resort, particularly in family proceedings. Alternative remedies must be exhausted before an immediate custodial sentence is imposed. Here there was a clear alternative. The judge could and should have imposed a sentence suspended on terms that the father execute the notarised agreement. Provision could have been made for the passport and driving licence held by the Tipstaff to be produced to facilitate the notarisation of the agreement in court.

Secondly, Mr Khan submitted that, in passing sentence, the judge had failed to give sufficient weight to the fact that the father’s non-compliance with the earlier orders was attributable at least in part to the acts and omissions of the tagging company.

Thirdly, it was argued that the judge had overlooked the fact that the children were not suffering significant harm as a result of the breaches. On the contrary, they were being well cared for by the paternal family in Iran. In fact, there was a risk that, by imposing an immediate custodial sentence on the father, the children would suffer emotional harm through knowing that their father was in prison and because a resolution of the dispute about their future care would be more difficult as a result of his imprisonment. There was also an added risk of the politicisation of the dispute since the imposition of a custodial sentence might make it less likely that the Iranian authorities would co-operate with return of the children to this country.

Fourthly, it was submitted that, as the father had made it clear that he would not comply with the earlier orders, the order could not achieve the objective of compliance which, as recognised in Hale v Tanner and in other cases, is one of the two aims of a committal order. There was no reason to believe that a 6-month sentence was likely to induce compliance. This case had therefore reached the stage anticipated in Wilkinson v Anjum, when it was obvious that the coercive element provided by a term of imprisonment had evaporated. The sentence imposed was thus an exercise in futility.

Finally, in oral submissions, Mr Khan raised an argument not prefigured in his skeleton argument. He asserted that at the hearing before ICC Judge Mullen, after the judge had risen and after the mother and her representatives had left court, his client had signed a written consent to the return of the children and handed it to the solicitor for the children. This assertion was not supported by any document by way of an application for fresh evidence. During the course of the hearing before us inquiries were made of Ms Janet Broadley, the children’s solicitor (who was not present at the appeal). In an email she replied:

MacDonald J was plainly aware that an immediate custodial sentence was the course of last resort. He reminded himself (in both judgments) that “committal to prison is appropriate only when no reasonable alternative exists”. In my view he was entirely justified in concluding that the breaches of court orders were of a level of seriousness that required an immediate sentence. There is no merit in the argument that a custodial sentence was in some way less justified because the mother was opposed to his imprisonment. As Mr Basi reminded us in short submissions in response to the appeal, although the mother had not pursued the alleged breaches of the tagging orders, she had pursued those breaches which were found by MacDonald J. In determining whether there had been breaches of the orders, the judge considered but rejected the argument that the father’s non-compliance had been attributable to or in some way explained or excused by any acts or omissions of the tagging company. His conclusion as to the seriousness of the breaches was plainly supported by evidence.

Furthermore, the judge was entitled and right to take into account the father’s repeated assertions that he would not comply with the orders. For that reason, there is no merit in the submission that he should have suspended the sentence on the condition that the father execute a notarised agreement. It might conceivably have been open to the judge to suspend the sentence on such a condition if the father had promised to execute the notarised agreement. But as he consistently said that he would not do so, suspending the sentence on that basis would have been pointless.

As McFarlane LJ observed in Wilkinson v Anjum, 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 this will only arise after a contemnor has served a period of imprisonment sufficient to mark the court’s disapproval of the disobedience of its order. There is no merit in the argument advanced in this case that a custodial sentence is futile because the father is refusing to comply with the order.

There is similarly no merit in the argument that the breaches were in some way less serious because the children are not suffering significant harm. As a result of the deliberate actions of their father, they are separated from their mother who has been their primary carer throughout their lives.

The fact (not mentioned in the grounds of appeal or skeleton argument to this Court, nor, apparently, at the hearing before MacDonald J) that the father signed a written consent at the hearing before ICC Judge Mullen adds no merit to the appeal. No evidence about this document has been adduced in a form that complies with the rules concerning fresh evidence on appeal. In any event, it is clear from Ms Broadley’s email that any fresh evidence about the written consent signed at that hearing would have no impact on the outcome of the appeal. Successive judges, including ICC Judge Mullen, have ordered the father to execute a notarised document. MacDonald J concluded that the father

The judge’s conduct of the sentencing exercise was careful, measured, and fully in line with established principle. There was no basis for this Court interfering with his decision. In the words of Birss LJ in Lovett v Wigan Borough Council, he 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”. For those reasons, I concluded that the appeal should be dismissed.

I agree.

I also agree.