Persistent Non-Compliance Leads to 12-Month Prison Sentence in Child Abduction Case

Introduction

The High Court case of Tanya Borg v Mohammed Said Masoud El Zubaidy [2022] EWHC 3491 (Fam) centers around the persistent and willful non-compliance of the respondent father with previous court orders concerning the return of his children to the jurisdiction of England and Wales from Libya. This article aims to provide a detailed analysis of the legal principles applied in the case and identifies the key topics and outcomes as determined by Sir Jonathan Cohen, sitting as a High Court Judge.

Key Facts

The long-standing family case involves Tanya Borg (applicant mother) and Mohammed Said Masoud El Zubaidy (respondent father), who are parents of three children, including two daughters (aged 22 and 11) and a son (aged 17). Since February 2015, following the father’s unauthorized removal of the children from a visit to Tunisia to Libya, legal efforts have been directed at ensuring their return.

Despite numerous court orders, including one requiring him to execute a document allowing the girls to travel without him, the respondent has continuously failed to comply. The case herein presented is the latest committal to prison for breach of a previous order by Roberts J, dated 1 August 2022, which required best endeavours to procure the return of the children.

Legal Principals

Several fundamental legal principles underpin the decision in this case:

Contempt of Court:

The respondent’s repeated failure to abide by court orders is deemed contempt of court. A Penal Notice attached to the orders highlights the seriousness of the non-compliance and the potential for imprisonment as punishment.

Coercive and Punitive Nature of Contempt Sanctions:

The court considers the dual purpose of sentencing for contempt, being both coercive (to compel compliance) and punitive (to punish non-compliance). Here, the court acknowledges the limited coercive effect due to the father’s expressed intention to continue non-compliance.

Maximum Sentencing Guidelines:

The Contempt of Court Act sets a maximum sentence of two years, but this does not limit the aggregate prison time for successive breaches of distinct court orders.

Proportionality and Past Orders:

Case law, particularly Re W (Abduction: Committal) [2011] EWCA Civ 1196, instructs the judge to take a proportionate approach; considering cumulative imprisonment time and the comparison to similar conduct in the criminal courts.

The Right to Purge Contempt:

A contemnor can apply at any time to purge their contempt by agreeing to comply with the court orders henceforth — a remedy not available in criminal cases.

Outcomes

Sir Jonathan Cohen, after considering the seriousness of the offence, and given the father’s unyielding stance against compliance, sentenced the respondent to a total of 12 months’ imprisonment for the two breaches of court orders, to run concurrently. There was no basis found for suspending the order due to the father’s explicit intent not to comply.

Conclusion

This case emphasizes the seriousness with which the family courts treat breaches of orders, particularly regarding child abduction. It reaffirms that non-compliance can be met with repeated terms of imprisonment, contingent upon the unique circumstances and the contemnor’s willingness to conform to court orders.

Furthermore, the case reiterates the court’s stance on the utility of coercive imprisonment to secure compliance, acknowledging that the actual deterrent effect is not the sole purpose of contempt proceedings. These principles ensure that stringent measures can be taken against individuals who exhibit a flagrant disregard for the law and court authority, as well as reinforcing the innocence and best interests of the children involved in such disputes.