Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
Ms Justice Henke
Re: D (Contempt: Sentencing)
Mani Singh Basi (instructed by Dawson Cornwell LLP) for the applicant
Mr Andrew Rose (instructed by Wells Burcombe Solicitors) for the defendant
Hearing date: 16 December 2025
Approved Judgment
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This judgment was delivered orally in public on 16 December 2025
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MS JUSTICE HENKE
Ms Justice Henke:
On behalf of the defendant, Mr Rose has said everything that could have been said.
On 21st November of this year I found the defendant in breach of two court orders, the order of HHJ Hopkins KC and the order of Mrs Justice Lieven. The breaches that I found, together with my reasoning, were set out in a judgment delivered in public. That judgment is reported as Re D (Contempt: Breach). 2025 EWHC 3190 (Fam).
On 21st November, having I found the defendant to be in breach of those orders, I adjourned for sentencing and gave you, the defendant, a chance to comply with a further court order. The relevant part is paragraph 9 of my order of 21st November. It states that “the father must no later than 4pm on 12th Dec 2025 attend the Algerian consulate and sign all the necessary documents permitting the mother to travel alone with the child in order that they can both leave Algeria, in particular he (the defendant) must make clear he provides his consent to the applicant mother to return to the jurisdiction of England and Wales. For the avoidance of doubt, any form must refer to M by her full name and her given ID number.”
The child referred to is N, he was born on 23 October 2024 and is now 13 months, rising 14 months, in age. The father has not complied with that paragraph of the order, and I will turn to his reasons for non-compliance in a moment.
By the same order, at paragraph 8, I said that any psychiatric assessment of the defendant for the purposes of mitigation for the sentencing hearing was deemed a reasonable and proportionate disbursement on his legal aid certificate. That order provided funding to enable the defendant to place before me such a report if he, having received advice, wished to do so. There was no compulsion on him to disclose that psychiatric report, but he has chosen to do so. The psychiatric report in question was provided by Dr Rathod who saw the defendant for the purposes of assessment via video link on 8 December 2025. She also had before her the defendant’s PIP assessment, as well as instructions provided by the defendant’s solicitor and the committal bundle.
Within her report Dr Rathod sets out the defendant’s history as reported to her and as has been emphasised to me on his behalf by Mr Rose. He has suffered trauma in his past. I am asked to take into account that trauma as part of the mitigation in this case. The report also tells me a paragraph 11.2 her opinion about diagnosis of the defendant. She sets out at paragraph 11.2.1 his description of episodic depression and anxiety in the context of life stresses and trauma. The defendant also described to her symptoms of PTSD due to his time in the military. I am asked by Mr Rose when sentencing the defendant to take into account that whilst he may not have a diagnosis of PTSD, in his submission, he displays signs and traits of PTSD. It is clear that in paragraph 11.2.2 of the psychiatric report before me the Defendant describes mental and behavioural disorders due to use of substances, cannabis and medication.
According to the psychiatrist, the defendant describes many features compatible with a borderline personality type. It is the psychiatrist’s opinion that the defendant has capacity within the meaning of the mental health act to understand his actions and decision in relation to the court proceedings. She does not believe that the defendant currently requires admission to a psychiatric hospital, and therefore s.37 of the Mental Health Act is not indicated. She brings to my attention the impact of imprisonment on those with mental health issues: isolation from families and social networks: difficult surroundings, loss of privacy, poor hygienic and physical conditions, aggression, bullying and fear of assault; lack of purposeful activity, personal control or power to act; loss of identity; uncertainty, particularly among prisoners and concerns about reintegration into the outside world. This could be more pronounced for the defendant due to his vulnerability and past trauma.
Today (disclosed to me but not to the psychiatrist), I have documents provided by the defendant’s GP. They underscore his physical ill health, including diabetes. Under the heading “significant past” there are a number of physical complaints and medical diagnoses listed, and in relation to mental ill health on 15 March 2012, anxiety and depression, and on 30 April 2010 PTSD. In 2005, there is a record of an intentional act to self-harm with an object. Mr Rose prays in aide of the PTSD diagnosis and asks me to consider the physical ill health of the defendant.
I take into account the vulnerability of the defendant in terms of his mental health, if he receives a custodial sentence. There are practical effects of an immediate custodial sentence: he will lose his flat, universal credit and PIP. It is submitted he will be impacted harder than others who do not suffer from similar ailments.
In mitigation, I am told he is deeply apologetic and willing to face the consequences. I have been taken to the Algerian court order, the parties are now divorced and the mother has been given custody and guardianship of the son they share.
In the psychiatric report at paragraph 9.1 it is stated:
He understood that he has been accused of keeping his son in Algeria and is in breach of the Court order. He explained that the Algerian authorities have issued a travel ban on the child whereas there is pressure on him to bring the child to UK by Courts here. He described that he has received documents for signing to lift the travel ban. He explained that he does not want to sign the papers and is being forced to sign the papers. He stated that he will self harm if he has to sign the papers. He explained that he would like his son to come to the UK but not the mum and therefore will not sign the papers. He noted that he has already signed that the child can come alone on the first order. He believes he is being used by his wife to come to the UK and will not allow that. He understood the pleas available to him and the implications.
Mr Rose took instructions on that passage and tells me in mitigation that the defendant knows he is in breach for not signing the authority, he will not do so because he will be shunned by his community if he did, he would lose face in his culture. I am told he considers the marriage was used by the mother to gain a spousal visa. Without the defendant signing the authority permitting the mother to leave with their son, given the age of the child in question, the mother and child remained in Algeria until their court process has come to a conclusion and lifts the travel ban. If the defendant had signed the authority that the mother can travel with the child as quickly as possible, travel arrangements could have been made. By not signing the form he needed to sign, given the age of the son, he left them in Algeria. I am told he means no discourtesy by his stance, but he maintains it. It is in breach with court orders. Compliance with court orders is expected by any court and is expected by this court.
Before I turn to sentence, I deal with the question of the law. It has been set out by Mr Basi and adopted by Mr Rose. Mr Rose took me to the well-known authorities of Hale v Tanner [2000] 3 FCR 62 and Oliver-v-Shaikh [2020] EWHC 2658 (QB). I bear those authorities in mind. I have also refreshed my memory in relation to the recent cases regarding sentencing, including judgment of the then Mr Justice Cobb, now Lord Justice Cobb, in Omay Ali Elhag Elkndo v Elnoaman Gassam Elsyed (Committal: Sentence) [2024] EWHC 2230 (Fam).
As I deliver this judgment, I have open in front of me that judgment. I respectfully adopt and apply paragraphs 11 and 12 of that judgment. I have reminded myself there are two objectives of court proceedings: to mark disapproval and to secure future compliance. The seriousness of what has taken place is to be viewed in that light, as well as its own intrinsic gravity. The disposal of sentence must be proportionate to seriousness of contempt. I have wide powers of sanction (FPR 2010 37.4 and 37.9.1). I may impose a sentence of up to 2 years of imprisonment or unlimited fine.
If I impose sentence of imprisonment, I may suspend the execution of committal order for a period I consider appropriate and on such terms as I consider appropriate. The length of sentence should be decided without reference to suspension and must bear some reasonable relationship to the maximum of two years. I must not and do not assume that it is the automatic punishment for a breach of a family court order. I have not and must not assume imprisonment is not an automatic punishment for a first offence.
The court must be satisfied that the defendant’s conduct is so serious that no other penalty is appropriate, this is a measure of last resort. I remind myself of this, and that in mitigation I have been told this is the first occasion upon which the defendant has faced committal for contempt.
I have to look at the seriousness of the breach: he has chosen not to comply with the relevant paragraphs of the orders of HHJ Hopkins KC and Lieven J. He has chosen not to take the opportunity to sign the relevant form to allow his son to travel with his mother to this jurisdiction. Whilst he has apologised to the court, that apology rings hollow because he tells me he maintains his stance.
In the circumstances, his breaches are serious. I consider I have no alternative but to mark the seriousness of the breaches by a period of imprisonment. It seems to me appropriate that in relation to each breach he should serve a period of 28 days. They will run concurrently. I have reminded myself that if, as I have, imposed a prison sentence, it is open to me to order the execution of the suspension of the committal order as I consider appropriate.
Given mitigation before me, I am going to suspend the committal order, but the term I impose is that the defendant will not take any steps to prevent, whether by himself, his servants or agents, the applicant mother in this case or their mutual child from travelling to the jurisdiction of the courts of England and Wales. That condition it seems should be limited in time, as otherwise it would involve a never-ending suspended sentence. That condition will remain in force for 6 months from today’s date. Thereafter, should the defendant not take any steps to obstruct the mother and the child’s return, by himself, his servants or agents, the condition will no longer need to be complied with.
I remind the Defendant he must comply with court orders. Court orders are meant to be complied with, the defendant cannot choose whether or not to do so.
That is my order.
