R v RH & Anor

Factual and Procedural Background

This opinion concerns two connected cases referred to the full court by the Registrar, each involving offences of child abduction under the Child Abduction Act 1984. The first case, referred to as RH, involves an offence under section 1 of the Act, which applies to parents or persons closely connected to a child under sixteen who take or send the child out of the UK without appropriate consent. The second case, referred to as LA, involves an offence under section 2, committed by other persons who take or detain a child under sixteen without lawful authority or reasonable excuse, removing or keeping the child out of lawful control.

The cases were heard with a view to providing sentencing guidance, as there is no existing guidance from the Sentencing Guidelines Council or Sentencing Council for these offences. Both offences carry a maximum sentence of seven years imprisonment when tried on indictment.

RH pleaded guilty during trial after the judge ruled no defence was available, and was sentenced to 1 year and 8 months imprisonment. The facts involved the applicant removing her child from the jurisdiction in defiance of a court order and obstructing authorities. LA, the child's grandfather, pleaded guilty and was sentenced to 2 years and 6 months imprisonment for a forcible abduction of the child within the jurisdiction, involving threats and distress to the child.

Legal Issues Presented

1. What sentencing approach should be adopted for offences of child abduction under sections 1 and 2 of the Child Abduction Act 1984, given the absence of existing sentencing guidelines?
2. How should the court assess the seriousness of these offences by reference to the levels of harm caused and the offender's culpability?
3. What are the appropriate sentencing ranges for varying degrees of harm and culpability in child abduction cases?
4. How should aggravating and mitigating factors, including the impact on the child and the offender's role as a carer, be weighed in sentencing?
5. Whether the sentences imposed in the cases of RH and LA were manifestly excessive or appropriate in all the circumstances.

Arguments of the Parties

Appellant in RH

• The sentence was argued to be too long.
• Insufficient weight was given to the applicant's role as the primary carer and the impact of imprisonment on the child.
• The judge allegedly failed to properly consider a Family Court report withdrawing contact from the father.
• The applicant's good character and the minimal damage to the child's relationship with the father were said to be underweighted.
• The relatively short duration of the abduction and the custodial sentence's impact on the child were argued to warrant a lesser sentence.

Appellant in LA

• The sentence of 30 months was claimed to be manifestly excessive.
• The offence was described as impetuous and ill-judged rather than wicked.
• The abduction lasted only a few hours, with no removal from the jurisdiction and prompt notification to the father.
• There were fewer aggravating features compared to other cases, placing it lower on the spectrum of offending.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the absence of existing sentencing guidelines for child abduction offences under the Child Abduction Act 1984 and took the approach in section 143 of the Criminal Justice Act 2003 as a framework. This involves assessing the seriousness of the offence by reference to the offender's culpability and the harm caused.

The court identified three broad sentencing brackets based on combinations of harm and culpability:

• High harm and high culpability: Sentencing range of 5 to 7 years imprisonment.
• Low harm and low culpability: Sentencing range from a high-level community order up to 18 months imprisonment.
• Intermediate cases (mixtures of high/low harm and culpability or medium levels): Sentencing range of 18 months to 5 years imprisonment.

High harm includes lengthy abduction periods, serious emotional or other effects on the child, or severance of important relationships. High culpability includes persistent concealment, sophisticated planning, breach of court orders, or abduction for criminal purposes.

The court further explained that aggravating factors such as exposing the child to risk, abducting vulnerable children, group action, use of force, abduction to non-Hague Convention countries, or removal from jurisdiction increase sentence severity. Mitigating factors include prompt disclosure, compliance with court orders, and cooperation with authorities.

In RH, the court found a deliberate and premeditated plan to frustrate contact between the child and father, with obstruction of authorities and falsehoods. Despite the relatively shorter abduction period, the accumulation of aggravating factors justified the immediate custodial sentence imposed. The court rejected the appellant’s arguments that the sentence was excessive, noting the judge was entitled to make factual findings adverse to the appellant.

In LA, the court acknowledged some mitigating features, such as the relatively short duration and prompt notification of the child’s whereabouts, but emphasized the forcible nature of the abduction, threats made, and distress caused. The original sentence was found excessive, and the court reduced it to 15 months imprisonment to reflect a late guilty plea and the relevant factors.

The court also took into account the impact of custodial sentences on children where the offender is the sole carer, applying the principles in R v Petherick to ensure proportionality between public interest and the child’s welfare.

Holding and Implications

RH: The court dismissed the renewed application for leave to appeal the sentence of 1 year and 8 months imprisonment, finding the sentence neither unjust nor disproportionate given the gravity of the offending and aggravating factors.

LA: The court granted leave to appeal and allowed the appeal, reducing the sentence from 2 years and 6 months to 15 months imprisonment to reflect the circumstances and credit for a late guilty plea.

The decision establishes a flexible sentencing framework for child abduction offences under the Child Abduction Act 1984, emphasizing assessment of harm and culpability, and the need for deterrence. It clarifies appropriate sentencing ranges and the weight to be given to aggravating and mitigating factors, including the impact on affected children. While no new binding precedent was established, the guidance provided is intended to assist sentencers in future cases involving child abduction.