CA-2025-001272 - [2025] EWCA Civ 1048

It perhaps came as no surprise that when the matter was listed again for sentencing before the judge on 6 May 2025, the mother had failed to comply with the Court’s orders. During the course of her judgment, the judge referred to the judgment of Cobb J in the case of Omay Ali Elhag Elkndo v Elnoaman Gassam Elsyed (Committal: Sentence) [2024] EWHC 2230 (Fam) (“Elkndo v Elsyed”). Drawing on that judgment, the judge reminded herself that there are two objectives in contempt of court proceedings; one being to mark the court’s disapproval of the disobedience to its order, the other to secure compliance with the order in the future. In that context she said:

“The seriousness of what has taken place is to be viewed in that light as well as for its own intrinsic gravity.”

Notwithstanding the stern warning that she had given the mother on 18 March 2025, the judge decided not to impose any sanction upon the mother giving her reasons as follows:

“11.

I have reminded myself that this is the third time a court has found the respondent to be in breach of court orders. She accepts that she has not followed court orders, and she tells me that she cannot because she cannot, "harm her", that being a reference to her daughter, [A]. The respondent's logic does not take into account that the court has made orders on the facts as presented to it and has done so in the best interest of [A]. I therefore have to consider what to do to mark the breaches.

12.

The respondent has been fined twice, I have adjourned sentence to give her a last opportunity, and she has not taken that opportunity. I have therefore had to consider whether this is a case where I should impose a custodial sentence. I have reminded myself of the law on sentencing in these circumstances and in doing so, I have reminded myself that there are two reasons why contempt proceedings are dealt with and sentenced. One is to mark the court's disapproval of the disobedience of a court order. I have made findings that there has been a continuous breach of the orders in this case, as I have already outlined, since August 2024. I have, however, reminded myself that the other purpose of these proceedings that are before me is to secure compliance with the order in the future. I also take into account the impact on [A] if I were to send her mother to prison. It would be direct, the harm would be emotional, psychological and financial.

13.

This is the third occasion this case has come before me, and I have detected no change in the mother's attitude to the court's order. She has told me today that she cannot do it, because she cannot harm her daughter. These are grave breaches, and nothing that I say that follows, should be taken away from a need to abide by court orders. I have representatives of the tipstaff office in court, because the reality of the situation is that if I make a sentence for imprisonment, suspending it on condition that you comply with a court order, is likely to simply result in a breach.

14.

I therefore have to decide how to deal with the breaches I have found. Do I send you directly to prison, or do I say these committal proceedings are having no effect on you whatsoever, and there may be another way forward.

15.

Because I do not consider that sending you to prison would have any effect on your intention in the future, I have decided that there is no purpose in sending you to purpose [sic]. However, I am deeply concerned for [A] and so what I am going to do, is dismiss the application to commit, and after the luncheon adjournment, I am going to hear from you, from the applicant's counsel and [A’s] Guardian in the Children Act proceedings about what directions I should make to further the father's application that A should live with him.

…

17.

I have found that sending you to prison is not going to change your mind. The court is now going to have to decide, not today, whether it is better for [A] to live with you, and not see her father, or live with her father and see you. Please do not think this court does not think your breaches are serious. You should know that it is a very serious thing for a High Court judge to say, that sending you to prison is not going to do any good. You will continue to set your face against the court orders…”

The judge did not however abandon her attempts for the Guardian to see A, as in the parallel order made in the welfare proceedings on 6 May 2025, the mother was ordered to ensure that A attended an appointment with the Guardian on 18 June 2025 at the Cafcass offices. A penal notice was attached. The mother did not attend.