Case No. MA22P02300

- In Somalia with them.”41.With respect to her travel documents, it is true that the mother did not immediately produce those documents to the police officer. It is perhaps not uncommon for persons not to be carrying their passport or travel documents or for those documents to be with family members. In that context, the mother did provide two alternate locations for her travel documents, it transpiring that the documents were at one of those locations when the documents were subsequently surrendered by the mother. 42.Examining the evidence as a whole, I am not satisfied that the local authority has proved beyond reasonable doubt that the mother failed to inform the Tipstaff immediately of the whereabouts of the children S, E, D and H Abdi and, in any event, to inform the Tipstaff of all matters within her knowledge or understanding which might reasonably assist the Tipstaff in locating the children. This is particularly so when the mother’s responses to the arresting officer are considered in the context of the detailed and extensive information and material she had already provided to the Manchester police in respect of the children. Within that context, the extent of the answers given by the mother to another police officer attending without notice are entirely understandable and do not in my judgment evidence the breaches contended for by the local authority.43.Whilst I accept that the mother did not immediately produce her passport in response to the order, she did not have the relevant documents in her possession at that point and she did make clear where she believed they were located. Further, she surrendered them at the first opportunity to the Tipstaff via her solicitors. In the circumstances, whilst technically in breach of the location order as at 21 November 2021, in that I am satisfied beyond reasonable doubt that the mother failed to immediately to hand over to the Tipstaff every passport every passport relating to her and every identity card, ticket, travel warrant or other document which would enable her to leave England and Wales, I consider that breach can, in the particular circumstances I have described, properly be classed as a minor one. 44.Finally, I am not able to find beyond reasonable doubt that the mother is in breach of the return order made by HHJ Singleton KC on 14 November 2022. In order to comply with that order, the mother would need to know where the children are. In that regard, I am satisfied that she does not at the present time have that information in her possession. In the circumstances, whilst I am satisfied that she has continued to make efforts to locate the children with a view to recovering them to this jurisdiction, I accept that at the present time she is not able to comply with the return order. It would not therefore be just to hold her in breach of that order at this point.45.Turning to the father, having regard to the evidence before the court I am satisfied that at the time the location order was executed, the father knew the then current location of the children. Notwithstanding his continued denials, the voice note sent by the father to the mother, which the father did not deny or seek to dispute, proves beyond reasonable doubt that the father knows where the children are, as does the fact that he travelled to Somalia in May 2022, as I am satisfied beyond reasonable doubt that he did. I accept the submission that the voice-message is incriminating and clearly suggests that the father knows the children’s whereabouts and had detailed knowledge of the mother’s actions in Somalia attempting to locate them. In addition, I note that notwithstanding his purported worry concerning the children’s whereabouts, unlike the mother he has never reported them missing to the authorities nor sought the assistance of the court to locate the children in one of the alternative locations he has mentioned, namely Turkey or the United States. I am satisfied that this is because he knows full well where the children are currently. When arrested and spoken to by police, I am satisfied beyond reasonable doubt that the father made no mention at all of the children being in Somalia, denying all knowledge of their whereabouts. The recording of the father’s statement on 18 November 2022 makes no mention of the children being in Somalia, the only reference to another country being to Turkey. 46.In these circumstances, I am satisfied beyond reasonable doubt that on 18 November 2022 the father failed to inform the Tipstaff immediately of the whereabouts of the children S, E, D and H Abdi and, in any event, inform the Tipstaff of all matters within his knowledge or understanding which might reasonably assist the Tipstaff in locating the children.47.I am further satisfied beyond reasonable doubt that at the time the father was arrested he failed to provide his passport and any other document which would enable him to leave England and Wales. The fact that the father flew to Addis Ababa in May 2022 shows that he had available to him travel documents as at that date. Whilst the father’s story with respect to the travel documents continues to change and evolve (today a further element was introduced when the father claimed that his travel documents exist but others are not interested in collecting them), he concedes that he had travel documents as at 18 November 2022, albeit he asserts they had been cancelled. Within that context, I am further satisfied beyond reasonable doubt that on 18 November 2022 the father failed to immediately to hand over to the Tipstaff every passport relating to him or other document which would enable him to leave England and Wales.48.Finally, in respect of the allegation that the father has breached the return order of 14 November 2022 by failing to return the children to the jurisdiction of England and Wales, the position is complicated by the fact that the father was arrested on 18 November 2022, four days after the order was made. He has been remanded in custody ever since. In those circumstances, it has not been possible for him to comply with the return order himself. It also is not clear to what extent he has been able to communicate with members of his family to ensure the return of the children, although I take it to be unlikely that he has been able to communicate with Somalia from prison. In the circumstances of those uncertainties, and whilst the continuing absence of the children from the jurisdiction is powerful evidence of the father’s failure to comply with the return order, I am not satisfied that it would be safe to conclude today that the local authority has proved beyond reasonable doubt that the father has failed to comply with the return order.Sentence49.Having made my findings in respect of contempt of court, I adjourned for a short period to allow the mother and the father to consider the decision of the court and any mitigation they sought to offer to the court before sentence was passed.50.The general legal principles applicable to the sentencing of a contemnor are now well established and can be summarised as follows:i)The court can order imprisonment (immediate or suspended) and/or a fine, or adjourn consideration of penalty for a fixed period or enlarge the injunction. ii)In sentencing the contemnor, the disposal must be proportionate to the seriousness of the contempt, reflect the court’s disapproval and be designed to secure compliance in the future. iii)Committal to prison is appropriate only where no reasonable alternative exists. iv)Where the sentence is suspended or adjourned the period of suspension or adjournment and the precise terms for activation must be specified.v)Imprisonment is not the starting point and is not the automatic response to a contempt of court. vi)Equally, there is no principle that a sentence of imprisonment cannot be imposed on a contemnor who has not previously committed a contempt. vii)In assessing the seriousness of the contempt, it is right to have regard to the purpose for which it was committed and the likelihood of any risk to the process of justice.viii)In circumstances where the disposal chosen must be proportionate to the seriousness of the contempt, where an immediate term of imprisonment is appropriate it should be as short as possible having regard to the gravity of the contempt and must bear some reasonable relationship to the maximum sentence of two years imprisonment that is available to the court.ix)Where a term of imprisonment is the appropriate sentence, the length of the term should be determined without reference to whether the term is to be suspended or not.x)Having determined the length of the term of imprisonment, the court should expressly ask itself whether a sentence of imprisonment might be suspended. xi)The court should briefly explain its reasons for the disposal it decides to impose if it finds the contempt proved.51.As Marcus-Smith J made clear in Patel v Patel and Ors [2017] EWHC 3229 (Ch) at [22] and [23], a penalty for contempt has two primary functions. First, it upholds the authority of the court by marking the disapproval of the court and deterring others from engaging in the conduct comprising the contempt. Secondly, it acts to ensure future compliance. In some cases therefore, and in particular those cases where the contempt arises from the breach of a court order, a penalty will have the primary objective of ensuring future compliance with that order. 52.With respect to the mother, in circumstances where the only breach I have found proved can, in the particular circumstances of this case, be properly characterised as a minor one. The mother thereafter surrendered her passport to the Tipstaff via her solicitors at the first opportunity. In the circumstances, I am satisfied that it is appropriate to impose no penalty on the mother.53.With respect to the father, I have found as a fact that on 18 November 2022 the father failed to inform the Tipstaff immediately of the whereabouts of the children S, E, D and H Abdi and, in any event, inform the Tipstaff of all matters within his knowledge or understanding which might reasonably assist the Tipstaff in locating the children.54.I have also found as a fact that on 18 November 2022 the father failed to immediately to hand over to the Tipstaff every passport relating to him or other document which would enable her to leave England and Wales.55.The aggravating factors in this case in respect of the father breaches of the location order are his failure to comply with the terms of the location order either in respect of assisting with the whereabouts of the children or in handing over his travel documents when ordered to do so. A further aggravating feature is the father’s persisting in this course notwithstanding the evidence now before the court that indicates beyond reasonable doubt both that he knows where the children are and that he has travel documents. Within this context, the father has made no further attempt to assist the court by now indicating where the children are, in order that steps can be taken to recover them to the jurisdiction of their habitual residence. With respect to mitigating factors, the father has sought during this hearing to proffer an explanation to the court, albeit one that seeks to place responsibility for the abduction of the children solely onto the mother and an explanation the court was not prepared to accept.56.Having regard to the aggravating and mitigating factors in this case, and to function of the sentence in first marking the disapproval of the court and deterring others from engaging in the conduct comprising the contempt and second to ensure future compliance, I am satisfied that the starting point for the appropriate sentence for the breach of the location order I have found is one of four months imprisonment. I propose however to reduce that sentence to three months immediate imprisonment to reflect the fact that the father has spent nearly three weeks on remand ahead of this hearing.57.In addition, I will make a further order under the inherent jurisdiction requiring the father to facilitate the return of the children to the jurisdiction of England and Wales forthwith. It will of course be open to the father to apply to purge his contempt of court, and hence to secure his release from custody, if the children are returned to jurisdiction of England and Wales pursuant to that return order. If the children are not returned to England and Wales in breach of that order, it will be open to the local authority to make a further application to commit the father for breach of that order, at which time he will be liable to a further period of imprisonment if he is once again found in contempt.58.I advise the father that he is able to apply to court to purge his contempt, in particular should the children be returned to his jurisdiction as ordered by the court.59.I make no order as to costs.60.That is my judgment.