(Court of Appeal; Hughes, Thomas and Keene LJJ; 21 August 2008)
Following the father's abduction of the 20-month-old child to Syria, the English court ordered the child's immediate return to England. The child had not yet been returned; the father claimed that this was for reasons beyond his control, but the mother applied for the father's committal to prison for contempt. The judge made an order committing the father to 2 months in custody, suspended for 2 weeks during which time the father was to ensure that the child returned. At the end of the 2 weeks the child had still not returned, and the father was duly committed to custody; the father appealed.
Without a clear finding by the judge that the father had been able to achieve the child's return, the judge ought not to have held him in contempt of court; there must be a clear finding not only of breach but also that the breach was deliberate. The appeal therefore had to be allowed. However, while the onus was on the mother to show that the father was not able to arrange the child's return, if the court was satisfied that successive obstacles had been raised by the father in a manner that demonstrated that he did not wish to obey the order, that was perfectly capable of being a relevant consideration en route to a decision whether the judge was sure that the father could achieve the return of the child if he chose to exert himself. A judge would certainly be entitled to take into account the undoubted sovereignty of paternal rights over the child in an Islamic system and to consider whether or not it was clear the father was declining to exercise his authority, in a way capable of being contempt of court. Certain of the documents produced by the father might be directly material to the question whether deliberate failure to return the child had been proved. The mother was free to make another application to commit for contempt, and, if such a contempt were proved, it would not be in the least surprising, in the context of the deliberate prior abduction of a toddler, if the judge were to think in terms of a sentence several times longer than the one already imposed.