Button v Salama [2013] EWHC 4152 (Fam)

Case No No.FD12P00013[2013] EWHC 4152 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Thursday, 19 th December 2013
Before
MR JUSTICE HOLMAN(Sitting in public)
B E T W E E N:
Between
NAOMI ISIS BUTTONApplicantTAMER AFIFI MOHAMED AFIFI SALAMARespondent
Transcribed by BEVERLEY F. NUNNERY & COOfficial Shorthand Writers and Tape TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com
MR M. JARMAN appeared for Applicant Mother.THE RESPONDENT appeared in person. for in person
J U D G M E N T
[1]On 10 December 2013, Mrs. Naomi Isis Button ("the mother") issued an application in this court for Mr Tamer Afifi Mohamed Afifi Salama ("the father") to be committed to prison for contempt of court. I have heard the whole of this application in public and I am now giving this judgment in public.[2]The father is currently detained in HMP Nottingham. About a week ago he wrote to the court and expressly requested that instead of being brought personally to attend the court here in London, he should be permitted to participate by videolink. He has been brought to court from prison on several previous occasions. He explained that the long journeys in a prison van are very disagreeable and that it is particularly disagreeable to have to spend one or two nights in Pentonville Prison either side of a hearing such as this. Since he made that request, I readily agreed that he should be permitted to participate in the present hearing by videolink from HMP Nottingham. I record that a large television screen is installed here in the courtroom and any members of the public present have been as well able as myself to see and hear the participation of the father in this hearing throughout the hearing.[3]This is the same case and the same family in relation to which I myself conducted an earlier hearing on 27 September 2013. That hearing also took place throughout in public. I gave a judgment of some length which was rapidly transcribed and within a few days was placed on the public Bailii website under reference number [2013] EWHC 2972 (Fam). At the outset of that judgment, in paragraph 2, I mentioned that the earlier judgment of Roderic Wood J, dated 2 July 2013, had not, by 26 September, been made publicly available on the Bailii website. I said in paragraph 2 of my judgment that I would take steps to ensure that that was done, and I am aware that fairly soon after that, the judgment of Roderic Wood J, dated 2 July 2013, was itself made publicly available on the Bailii website. There is therefore already considerable information available to the public from the judgments of Roderic Wood J of 2 July 2013, and of myself of 27 September 2013.[4]In those circumstances, it does not seem to me to be necessary yet again to repeat at any length the history of these proceedings and this matter. They relate to the one child of these parties, Elsa Salama. She was born on 2 February 2007 and so is now approaching the age of 7. The parents were married to each other, although I understand that during this year they have now become divorced. The mother is English by birth and upbringing, and a British citizen. The father is Egyptian by birth and upbringing, and an Egyptian citizen. He also became a British citizen sometime in 2010. Sadly, the marriage between the parents broke down and they separated. The mother was living in Leeds, the father was living in Southampton. There were no legal proceedings of any kind between them at that stage, and no court orders of any kind in relation to Elsa. Rather, arrangements were agreed voluntarily between them.[5]In December 2011 the mother and the father and Elsa all travelled together to Egypt. As I understand it, it was in fact the mother who paid the air fares. The purpose was to have a short holiday together in Egypt over Christmas 2011 and of course to enable Elsa to see members of her paternal family there. It is a fact that Elsa has never returned to England since that supposed short holiday period. It is the mother's case that whilst they were there and staying in an hotel, the father brought it about that Elsa was detached from her and moved to live, apparently, with the father's own mother. The mother of Elsa returned to England shortly thereafter, and a few days later so did the father.[6]Legal proceedings between them rapidly ensued. Elsa was made a ward of this court . Since then, there has been a series of orders made by a number of different judges requiring, in summary and in essence, that the father reveals the actual whereabouts of Elsa and also procures the return of Elsa from Egypt to England. I mention that, so far as I am aware, no order has required the return of Elsa actually into the care of her mother.[7]Throughout the whole period now of almost two years since the first of those orders in January 2012, the father has steadfastly refused either to cause the return of Elsa to England or even to reveal her whereabouts. As a result, there has been a series of orders requiring him to do so, and a series of orders committing him to prison for contempt of court for his failure to obey those orders. It is the fact that the father has now been detained continuously in prison since 5 January 2012. Since today is 19 December 2013, and his current release date is 24 December 2013, he has now been in prison continuously for almost two years. That is of course the equivalent of a custodial sentence of almost four years' imprisonment, after allowance for release after serving half any such sentence.[8]At the hearing on 27 September 2013, for the reasons which I fully explained in my publicly-available judgment of that date, I did two things. First, I sentenced the father to a further term of six months' imprisonment for his contempt of court by failing to obey the earlier orders made by Roderic Wood J on 2 July 2013. Second, I repeated, in substantially the same terms as previously, a range of orders, the essence of which was, and is, that the father must disclose the whereabouts of Elsa in Egypt and cause her return to England and Wales. The mother has sworn a recent affidavit on 9 December 2013, in which she deposes, first, that the father was properly served with that order, and second, that he has not complied with it at all. The father has himself made a statement, dated 4 December 2013, which I have read. In that statement he says in effect that he is unable to comply with the terms of my order of 27 September 2013 and indeed the earlier orders to the same effect. He does not suggest that he has in any way actually complied.[9]So by the application dated 10 December 2013 the mother now seeks that I commit the father to prison for a further period for his breach of that range of orders (all of which are much more fully and precisely specified in her formal application) that I made on 27 September 2013.[10]I have not heard any oral evidence at the present hearing. I do, however, very clearly remember the previous hearing and the evidence which the father gave face-to-face in the witness box on that occasion, and the impression which I formed on that occasion. I described this in particular in paragraphs 13 to 17 of my judgment of 27 September 2013. On that occasion I was satisfied so that I was sure that the father could have complied substantially with the earlier orders of Roderic Wood J made on 2 July 2013. Frankly, nothing has changed between 27 September 2013 and today, and so for the purposes of this judgment, but only for the purposes of this judgment, I will proceed on a working assumption (without making an express judicial finding) that the father could indeed, between then and now, have complied with the orders that I made on 27 September, and that his failure to do so is a contempt of court.[11]Making that assumption, the question then is whether or not I should now impose a further sentence, and, if so, what further sentence I should now impose. In my judgment of 27 September 2013, between paragraphs 18 and 22, I made express reference to, and quoted from, the authority of the Court of Appeal in Re W (Abduction: committal) [2011] EWCA (Civ) 1196; [2012] 2FLR 133. That authority makes quite clear that, in a situation such as this, orders of the kind made in that case and also in this case may be repeated, and that there can lawfully be successive terms of imprisonment for the further and repeated breaches of the repeated orders. It was indeed by application of that authority of the Court of Appeal that I myself felt that it was both lawful, and proportionate and justifiable to impose a further term of six months' imprisonment on 27 September 2013.[12]However, the very passages in Re W that I quoted in my earlier judgment remain of considerable importance at this hearing today. I will accordingly re-quote them. At paragraphs 38 to 40, McFarlane LJ said:
"38. While such a course is legally permissible, the question of whether it is justified in a particular case will turn on the facts that are then in play. It will be for the court on each case to determine whether a further term of imprisonment is both necessary and proportionate. 39. Part of the court's proportionate evaluation will be to look back at past orders and at the cumulative total of any time already spent in prison and to bear those factors in mind when determining what order is to be made on each occasion. The court should also have some regard, if that is appropriate, to the likely sentence that might be imposed for similar conduct in the criminal court. 40. This is not however a licence for the courts to subvert the 1981 Act by blindly making successive committal orders for the remainder of a contemnor's natural life, as has been suggested on behalf of the father. It is a proportionate, stage-by-stage, hearing-by-hearing approach relying upon the discretion and judgment of the judge at each hearing."
[13]At paragraph 51, Hughes LJ said:
"Second, there is no doubt that there may be successive or repeated contempts of court constituted by positive acts disobeying an order not to do them. For my part, I am quite satisfied that there may be also be consecutive or successive contempts of court constituted by repeated omissions to comply with a mandatory order positively to do something. However, where the latter is in question, it is plain that there may well come a time when further punishment will be excessive. When that will be is a matter of fact for each case."
[14]Mr Jarman, on behalf of the mother, very strongly submits that the time has most certainly not yet come "when further punishment will be excessive". Indeed, he has submitted, rather, that the time has come when I should move to a longer term of at least 12 months' imprisonment. He repeats the submission that he made in September that I described in paragraph 23 of my judgment in September, that the very fact of continuing sustained breaches merely aggravates the contempt. Further, he submits that the previous relatively short six-month sentences, with actual release after only three months, have lacked sufficient coercive force and effect. He submits that if a significantly longer sentence were now imposed of at least 12 months' imprisonment, that is, six months of actual detention, then the father would understand that the court means business and, faced with so relatively long a further term in prison, he would now at last crack. Mr Jarman readily accepted that his submission amounted to a process of "attrition".[15]It is extremely important in this case to appreciate and have firmly in mind that there is no evidence that the father has committed any actual criminal offence under the law of England and Wales or the United Kingdom. In paragraph 54 of the judgment of the Court of Appeal in R v Kayani and R v Solliman [2011] EWCA (Crim) 2871, Lord Judge, LCJ, said at paragraph 54:
"The abduction of children from a loving parent is an offence of unspeakable cruelty to the loving parent and to the child or children. ... It is a cruel offence even if the criminal responsible for it is the other parent."
Mr Jarman, understandably, emphasises that passage in that judgment. I wish to make absolutely clear that I do not in any way whatsoever condone the actions of the father in the present case, nor do I minimise in any way whatsoever the gravity of what has happened and is continuing to happen, and indeed the cruelty of it upon the mother. But it is extremely important not to forget that those words of Lord Judge related expressly to an "offence", and "the criminal” responsible for it.[16]In the same authority, at paragraph 9 of their judgment, the Court of Appeal clearly identified that there are:
"... in theory three possible ways in which the court could deal with the parent who abducted his child. First, by proceedings for contempt of court on the basis that an order of the court had been flouted; second, prosecution for an offence under the [Child Abduction Act] 1984; third, prosecution for kidnapping, either on the basis of force, or fraud in achieving the removal of the child from the other parent."
The reference there to" kidnapping" is a reference to a common law offence. There is no statutory offence of kidnapping as such.[17]It must be clearly understood that none of those theoretically possible ways are available or apply in the present case. At the time of the events in late 2011, there had never been and were not any proceedings in relation to Elsa, nor any court orders in relation to her. In short, at the time of the events in Egypt at the end of 2011 there was no question of the father there committing any contempt of court at all. Further, there is no question of his having committed any offence under the Child Abduction Act 1984. Since he is "a person connected with [the] child" for the purpose of section 1 of that Act, any offence would be an offence under that section. However, under that section an offence is only committed if "... a person connected with a child... takes or sends the child out of the United Kingdom without the appropriate consent". As I have already explained, this child was taken out of the United Kingdom by both her parents together, and indeed it was the mother who had paid for the flights. There is no evidence to suggest that even prior to leaving England and Wales the father had planned and concocted all that later happened. So there was no offence under the 1984 Act.[18]The law in relation to the common law offence of kidnapping lacks some clarity, as indeed was explained by the Court of Appeal in their judgment in R v. Kayani in paragraphs 14 to 16. Suffice it to say that, at paragraph 16,

Lord Judge said:

"An offence of kidnapping by one parent of his or her children is much more problematic, and difficult of proof."
In any event, I am, to say the least, doubtful whether a common law offence such as kidnapping can possibly extend extra-territorially to a different sovereign state such as Egypt, where all the events in question took place.[19]It therefore follows, and requires to be stressed, that in the present case there is no evidence that, nor any reason to suppose that, the father has committed any criminal offence at all under the law of England and Wales, or of the United Kingdom. That point also serves to distinguish the facts and circumstances of the present case from the facts and circumstances of the case of Re W. In that case, the child concerned was living with her mother in England. The mother voluntarily agreed to the child spending a week of contact staying with her father in Southport, also in England. Unbeknown to the mother and without her consent, the father flew with the child to Pakistan. Accordingly, on those facts, there was, on the face of it, a clear offence under section 1 of the Child Abduction Act 1984. Accordingly, in paragraph 39 of his judgment in that case, which I have already quoted above, McFarlane LJ said:
"The court should also have some regard, if that is appropriate, to the likely sentence that might be imposed for similar conduct in the criminal court."
[20]That approach is less applicable in the present case, for there is no question of this father being prosecuted or sentenced for any offence at all in the criminal courts. Further, and as I pass from Re W, I stress that in that particular case, by the time of the hearing in the Court of Appeal, the aggregate of the sentences that had been passed for the contempts of court in that case was one of three years' imprisonment. When McFarlane LJ said at paragraph 46 of his judgment:"... for my part I would hold that Baker J was fully justified in imposing the term that he did", it is important to bear in mind that the term in question had resulted in an aggregate term of three years. In the present case, as I have already stated, the father has served an aggregate term of almost four years' imprisonment.[21]Whilst the case of Re W makes plain that there can be successive mandatory orders and committals for successive terms of imprisonment for breach of them, it is clearly extremely important that the court never loses sight of the clear provisions of section 14 of the Contempt of Court Act 1981 which, as McFarlane LJ said, the court must not subvert. That section provides as follows:
"(1) In any case where a court has power to commit a person to prison for contempt of court and (apart from this provision) no limitation applies to the period of committal, the committal shall (without prejudice to the power of the court to order his earlier discharge) be for a fixed term, and that term shall not on any occasion exceed two years in the case of committal by a superior court...."
[22]So the primary maximum sentence that Parliament has fixed for contempt of court is one of two years' imprisonment. I record that, in my own view, that is a surprisingly short maximum term in view of the gravity of some of the contempts which can and do take place, and in view of the obvious need for courts to have a powerful means of exerting their authority. But that is my purely personal and subjective view. The fact is that Parliament has fixed a maximum term of two years' imprisonment, and has never thought it appropriate since 1981 to lengthen that term. This man has now served the equivalent of twice the statutory maximum.[23]As the Court of Appeal identified in Re W, there are essentially two purposes of a sentence of imprisonment in circumstances such as these. One is punishment for the past contempt. The other is coercive, in order to induce the contemnor now to comply with whatever it is he is required to do.[24]The reality of this case is that this man has taken a stance, at any rate for so long as he remains in prison. He asserts that he cannot comply with these orders. Judges, including myself, have been sure that he can comply and is, rather, choosing not to comply. But that is the stance which he has taken. Although successive orders are legally permissible, the reality in this case is that from day one this father has manifested an absolute determination not, under pressure of court orders, to reveal the whereabouts of his child and not to cause her return to England. That is a very grave contempt of court in the circumstances of this case, but it was no less grave at the outset than it is now. The reality is that he made very plain indeed at a very early stage that he would not comply with these orders. For that flagrant contempt he could of course have been sentenced to the maximum term. The maximum term was two years' imprisonment. It seems to me that the court has to be very cautious indeed not to subvert altogether the will and intention of Parliament, when enacting section 14 of the Contempt of Court Act 1981, by now contemplating sentencing for aggregate periods that are more than double that term. It seems to me that this case has moved beyond the scope of what was described by the Court of Appeal in Re W, and that the man cannot be further punished.[25]So far as the coercive purpose of any sentence is concerned, I am afraid it is my clear view that this man has an absolute determination, at any rate while he remains detained in prison, not to obey the orders of this court, and that the coercive force of any sentences of imprisonment is now spent. So if I were to commit him to prison for a further term, the realistic purpose would be solely to punish him, which, for the reasons I have given, I cannot lawfully further do.[26]For those reasons, in my judgment, it would not now be proportionate or justifiable, nor, therefore, lawful to commit this father to a yet further term of imprisonment, whether of six months or 12 months, as Mr Jarman contends for. I will therefore dismiss outright the application issued on 10 December 2013 for the father to show cause why he should not be committed to prison.[27]I wish to make crystal clear, so that there is no misunderstanding by either the father or the prison authorities, that I am not interfering in any way at all with the existing sentence of imprisonment that I imposed on 27 September 2013, which he is now serving. That term itself was clearly expressed to be consecutive to the term of imprisonment imposed by Roderic Wood J on 2 July 2013. That sentencing history remains in place and undisturbed. The current sentence that I imposed on 27 September remains in place and undisturbed. The Prison Service and/or the Governor of HMP Nottingham will no doubt calculate, applying the relevant law and principles, the correct date and time for release once those consecutive sentences have been fully served. But so far as the present application is concerned, I pass no further sentence of imprisonment; and so, when he has lawfully served the present sentence, he will be released.[28]I conclude this judgment by making plain that I have the utmost sympathy for the mother in her situation and the utmost concern as to the welfare and wellbeing of Elsa, who has now not seen either of her parents for two whole long years, less merely a few days. The father said during this hearing earlier today that he strongly wishes to promote at least some contact between the child and her mother, and wishes to enter into discussion and negotiation. I intend, therefore, to fix a further hearing relatively soon in the New Year. That will not be a hearing about committal, it will be a welfare hearing focused very strongly on the welfare and wellbeing of Elsa, at which I hope it will be possible for the court to make significant forward progress in this tragic case.

Cited in 3 later judgments