Omay Ali Elhag Elkndo v Elnoaman Gassam Elsyed (Committal: Sentence)

At a hearing conducted exactly one week ago, I considered the Claimant’s application for an order committing the Defendant to prison for multiple alleged contempts of court; that application was dated 25 March 2024. That judgment is reported under neutral citation [2024] EWHC 2204 (Fam).

It will be apparent that I found that the Defendant had been in breach of a number of Court orders made by Henke J between January and March 2024.

The Defendant did not attend the hearing last week, nor was he represented. I found that the Defendant had been properly served with the application and documents filed within the proceedings; he had been afforded adequate notice of the application, and he had offered no explanation for his absence. I concluded that it was fair and just to proceed in his absence.

I adjourned determination of the sentence, in order to give the Defendant the opportunity to read my judgment, understand that findings had been made against him, and to consider his position. I hoped that he would engage with this process, and – even at this late stage – obtain legal advice and/or representation.

I specifically directed that the Claimant’s solicitors should send a copy of the judgment to members of the Defendant’s family.

At this hearing, the Defendant has once again not appeared, nor is he represented. I am satisfied that he has been properly served. I am satisfied that members of the Defendant’s family have been served with the earlier judgment; indeed, some members of the Defendant’s family have attended this hearing today.

I proceed therefore to deal with the penalty for the proven contempts.

Considerable emotional damage has been, and is being, done to the children who are the subject of these wardship proceedings. They are now believed to be staying in war-torn Sudan, where there is widespread violence, mass population displacement and acute food insecurity. The children are to all intents and purposes missing there. Quite apart from the trauma of their current situation, these same children are doubtless all suffering unimaginable grief at their mother’s sudden and premature death from heart failure, at the end of last year, just as they were all preparing to return to England. These children have suffered further loss – the familiarity of their home in England, where they had lived prior to 2022. In recent months, they appear to have been moved from one country to another (from Sudan, to Kenya, to Eritrea, to Uganda and then returning to the eastern region of Sudan near the border with Ethiopia), without apparent warning or preparation; their lives have become unpredictable and unstable. Their family relationships, social relationships, and their schooling have all been irredeemably disrupted.

I have found that the Defendant has caused or materially contributed to the children’s current appalling situation. It is notable that on 15 February 2024 (his last engagement with the Court) before Henke J he told her that he would do his “utmost best” to recover the children and bring them back to England. In this regard, he has, I find, cynically misled the Court; he has deliberately flouted the Court’s direction to achieve the repatriation of the children. In failing to attend Court hearings on three occasions subsequently, contrary to the specific direction of Henke J, he has contemptuously turned his face against the authority of this Court.

In failing to engage with this contempt application, I have been unable to consider any possible mitigation which he may have wished to advance.

I have had regard to the provisions of part 37 of the Family Procedure Rules 2010 (‘FPR 2010’). I have considered the guidance offered by Hale LJ as she then was in Hale v Tanner [2000] 2 FLR 879. I have further studied the judgments of Peel J in Bailey v Bailey (Committal) [2022] EWFC 5; of Nicklin J in Oliver v Shaikh [2020] EWHC 2658 (QB) (at [14]-[21]); and of MacDonald J in Allami v Fakher [2023] EWFC 29.

I approach my task having regard to the following points:

Having regard to the matters set out above, I am satisfied that an immediate sentence of imprisonment is the appropriate penalty on the facts of this case. This Defendant has committed repeated breaches of the Court’s orders over an extended period of time; he has deliberately, in my judgment, failed to comply with orders despite repeated opportunities being given to him to achieve compliance. That he misled Henke J so egregiously is a significant aggravating factor.

For identification of the grounds on which I pass sentence, it is necessary to have regard to [25] and [29] of my earlier judgment, dealing with the findings, which is reported at [2024] EWHC 2204 (Fam).

In relation to Grounds 1, 2 and 6 – which all concern the failure of the Defendant to return, or facilitate the return of, the children to this country – the sentence on each Ground will be one of twelve months’ imprisonment. This reflects the seriousness of the Defendant’s breaches, and marks the disapproval of this Court for his conduct. The terms of imprisonment will be concurrent with each other, and will therefore be 12 months in total.

In relation to Grounds 3, 4, and 5 – the Defendant’s failure to attend Court when ordered to do so, to explain himself and his actions – the sentence on each Ground will be three months’ imprisonment; these terms of imprisonment will be concurrent with each other (i.e. 3 months in total), but consecutive to the twelve months sentence imposed above.

In relation to Ground 7, and my finding that the Defendant failed to notify the Tipstaff of the address of the place where the children reside, and knowingly causing the children to change the place at which they reside, the sentence will be one of four months’ imprisonment, which will be concurrent with the sentences imposed above.

The overall sentence is therefore one of fifteen months’ imprisonment.

The Defendant, once apprehended and detained, will serve one-half of that time in custody.

It will, of course, be open to the Defendant 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 Orders which have been made by Henke J. 

With the Claimant’s agreement, I will authorise the release of photographs of the children who are the subject of the wardship application to the media, in order that steps can be taken to draw attention to their plight, and to the orders which have been made in this case – including the Return Orders, and today’s order committing the Defendant to prison.

That is my judgment.