“No-Order Is Not an Option”: The Court of Appeal Re-states the Duty to Sanction Contempt in Family Proceedings – Commentary on B (A Child) (Sentencing In Contempt Proceedings) [2025] EWCA Civ 1048

1. Introduction

The England and Wales Court of Appeal has delivered a powerful message in B (A Child) (Sentencing In Contempt Proceedings) [2025] EWCA Civ 1048, reversing a Family Court decision that had imposed no sanction for repeated and admitted contempts. The case concerns a Slovakian couple—Pavol Koco (father/appellant) and Anna Benciková (mother/respondent)—and their child, A. Following a protracted history of Hague Convention and Children Act 1989 litigation, the mother persistently disobeyed specific issue orders requiring (i) monthly written welfare updates to the father and (ii) cooperation in “Story-board” life-story work between A and her guardian. Two previous fines failed; a third committal application led Henke J to conclude that imprisonment or suspension would be pointless because the mother would still not comply, so she made no order.

The Court of Appeal (King, Snowden & Falk LJJ) has now held that such an approach is wrong in principle. A court must mark serious contempts with a proportionate penalty even where it doubts that compliance will follow; otherwise the authority of court orders collapses. The case crystallises an important doctrinal point: anticipated non-compliance is not a lawful reason to withhold punishment for proven contempt.

2. Summary of the Judgment

• Appeal allowed: the Court of Appeal set aside the “no sanction” disposal and remitted sentencing to a High Court judge.
• Errors identified:
  • Henke J erred in accepting, on the mother’s assertion alone, that she would never comply even if imprisoned.
  • The judge mistakenly treated the predicted futility of coercion as justification for abandoning the punitive function of contempt jurisdiction.
• Key holding: The twin objectives of contempt—(1) punishing past breaches and (2) securing future compliance—are cumulative. Where both can be served, they should be; but the impossibility (or perceived impossibility) of the second does not negate the first.
• Result: Matter sent back for fresh sentencing that properly considers escalation up to and including immediate custody.

3. Detailed Analysis

3.1 Precedents Cited and their Influence

1. Hale v Tanner [2000] 1 WLR 2377
   Lady Hale (then LJ) set out that contempt sanctions in family cases serve a dual purpose—punishment and coercion—while recognising the emotional dynamics unique to family litigation. The Court of Appeal relied heavily on Hale LJ’s emphasis that contemnors must “understand the importance of keeping court orders… and the likely consequences if they are broken.” King LJ reiterated that rationale, applying it to a scenario of repeat contempt.
2. Omay Ali Elhag Elkndo v Elnoaman Gassam Elsyed (Committal: Sentence) [2024] EWHC 2230 (Fam)
   Cobb J distilled nine principles for contempt sentencing. Points 1, 2 and 9—dual objectives, proportionality, and imprisonment as a last resort—were expressly adopted in the present judgment and used as the yardstick against which Henke J’s approach was measured.
3. Oliver v Shaikh [2020] EWHC 2658 and Crystal Mews Ltd v Metterick [2006] EWHC 3087
   Cited largely by the mother to argue that ensuring compliance is the primary objective. The Court of Appeal distinguished these authorities, noting that Nicklin J’s “primary objective” remark was obiter and, crucially, that no true conflict between objectives existed on the facts.

3.2 The Court’s Legal Reasoning

King LJ’s reasoning proceeds in two linked stages:

• Stage 1 – Misapplication of Principles: Henke J’s conclusion that “sending you to prison would have no effect” accepted the mother’s unevidenced, self-serving assertion. The Court of Appeal stressed that until an escalated sanction is actually imposed, the judge cannot know whether it may coerce compliance.
• Stage 2 – Preservation of Judicial Authority: The Family Court’s abandonment of sanction undermines public confidence and risks incentivising defiance in other cases. The appellate court emphasised that punishment for past breaches “serves as an essential aspect of upholding judicial authority,” a systemic value not overridden by speculation about future futility.

Integrating the two stages, the Court concluded that Henke J’s approach effectively converted the contemnor’s predicted obstinacy into a trump card, impermissibly nullifying the punitive strand of contempt jurisdiction.

3.3 Impact on Future Cases and the Law

• Deterrent Signal: Litigants—especially in Children Act disputes—cannot rely on professed intransigence to avoid sanctions. The decision fortifies the escalating response model: warning > fine > suspended term > custody.
• Guidance for First-Instance Judges: When deciding sentence, courts must separately evaluate (a) the gravity of historic breach and (b) the realistic prospect of compliance. Even if (b) is doubtful, (a) still demands a proportionate penalty.
• Re-balancing Family Contempt Jurisprudence: The judgment subtly recalibrates the weight between the objectives where they appear to diverge, making it clear that punishment cannot be jettisoned simply because coercion may fail.
• Procedural Ramifications: Expect more careful sentencing transcripts delineating why fines, suspended orders, or imprisonment are (or are not) selected, and explicit acknowledgment that judicial authority is a standalone consideration.

4. Complex Concepts Simplified

• Contempt of Court (Civil): Disobeying a binding court order. In family cases, the standard of proof is the criminal standard (“beyond reasonable doubt”).
• Committal Proceedings: A special procedure where the applicant seeks the contemnor’s committal (imprisonment) or other sanction for contempt.
• Penal Notice: A formal warning endorsed on an order stating that breach may lead to imprisonment, a fine or seizure of assets.
• Suspended Sentence: A custodial term that does not take immediate effect; it is “activated” if the contemnor breaches further conditions.
• Storyboard/Life-Story Work: Therapeutic child-centred intervention led by a guardian or social worker to help a child understand their origins, identity and family relationships.
• Dual Objectives of Contempt Jurisdiction:
  1. Punitive – marking disapproval of past defiance;
  2. Coercive – compelling future obedience. The present judgment confirms these objectives are cumulative, not alternative.

5. Conclusion

The Court of Appeal’s ruling in B (A Child) provides authoritative guidance on sentencing for contempt in family proceedings. The key takeaways are:

• Courts must not abdicate the punitive element of contempt jurisdiction merely because the contemnor predicts (or even demonstrates) continued defiance.
• The perceived ineffectiveness of fines does not automatically preclude custodial options; escalation is not only permissible but often necessary.
• Judicial authority and public confidence are independent values that require contempts—especially repeated, deliberate ones—to be met with meaningful consequences.

The phrase “No-order is not an option” neatly encapsulates the new precedent. Going forward, first-instance judges in family cases must carefully articulate how both objectives of contempt are served and resist the temptation to accept anticipated non-compliance as a veto on punishment. In short, court orders are binding, and wilful breach will be sanctioned, whether or not compliance is eventually compelled.