Allami v Fakher

Factual and Procedural Background

This appeal concerns an order made by MacDonald J committing the Appellant to six months' imprisonment for contempt of court due to breaches of multiple Family Division orders regarding his two children. The Appellant, hereafter referred to as the father, and the children's mother both hold dual Iranian and British citizenship. They married under Sharia law in 2007 and had a civil marriage ceremony in 2008. Their two children were born in 2008 and 2012 and also hold dual citizenship.

Following the father's extended stays in Iran starting in 2015, the mother travelled to Iran with the children in July 2021 but was prevented from leaving with them due to the father's withdrawal of permission from Iranian authorities. The mother left the children with their maternal grandparents in Iran and returned to the UK to seek their return.

In July 2022, the mother applied to the Family Division for orders securing the return of the children to the UK. Various orders were made between November 2022 and January 2023 requiring the father to return the children to the UK and to execute notarised consents to facilitate their travel. The children were to be placed in the care of the maternal family in Iran pending their return. Despite these orders, the children remained in Iran with the paternal grandfather, and the father failed to comply with the orders, including executing the notarised consents.

The mother applied for the father's committal for contempt based on breaches of these orders. The hearing before MacDonald J in March 2023 found the father in contempt beyond reasonable doubt, rejected his defences, and sentenced him to six months' immediate imprisonment. The father appealed the custodial sentence.

Legal Issues Presented

1. Whether the sentencing judge was correct to impose an immediate custodial sentence for contempt of court in family proceedings.
2. Whether the custodial sentence was proportionate to the seriousness of the breaches and the circumstances of the case.
3. Whether alternative sanctions to immediate imprisonment were available and appropriate.
4. Whether the father's non-compliance was excused or mitigated by external factors such as the actions of the tagging company.
5. Whether any written but un-notarised consent given by the father affected the seriousness of the breaches or the prospects for resolution.

Arguments of the Parties

Appellant's Arguments

• The breaches were not sufficiently serious to warrant immediate imprisonment, especially as the mother did not seek such a sentence.
• The judge erred in starting with custody as the default sentence; committal should be a last resort with alternative remedies exhausted first.
• The father's non-compliance was at least partly due to failures by the tagging company, which prevented him from executing the notarised agreement.
• The children were well cared for by the paternal family in Iran and not suffering significant harm, so immediate custody risked emotional harm to them and complicated resolution.
• The father had signed a written consent to the children's return at a hearing, indicating willingness to comply and potential for mediation, thus lessening the seriousness of the breaches.
• The custodial sentence was disproportionate and futile, as the father had made clear he would not comply, negating the coercive purpose of imprisonment.

Respondent's Arguments

The opinion does not contain a detailed account of the Respondent's legal arguments beyond the mother's application and submissions supporting committal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully reviewed the repeated breaches of multiple High Court orders by the father, including failure to return the children from Iran and failure to execute notarised consents. The judge rejected the father's explanations that external factors, such as the tagging company's failures, prevented compliance, finding that these were attempts to frustrate the court's orders.

The court emphasized established sentencing principles in contempt cases: penalties must be proportionate, uphold court authority, deter disobedience, and secure future compliance. Imprisonment is a last resort, appropriate only where no reasonable alternative exists.

Given the father's repeated and deliberate non-compliance, including his expressed intention not to comply, the court found that an immediate custodial sentence was justified and proportionate. The mitigating factors, such as the father's age and the mother's position against imprisonment, were outweighed by the seriousness and persistence of the breaches and the impact on the children, who remained separated from their primary carer.

The court also dismissed the argument that the father's signing of a written but un-notarised consent document mitigated the breaches, noting lack of admissible evidence and that the orders specifically required notarised agreements. The sentencing judge's approach was described as careful, measured, and fully consistent with legal principles.

Holding and Implications

The court DISMISSED the appeal against the six-month immediate custodial sentence imposed for contempt of court.

The direct effect of this decision is that the father remains subject to the imprisonment order, with the possibility of release upon purging the contempt by complying with the court orders, including facilitating the children's return and executing the notarised agreement. The court reaffirmed the seriousness with which breaches of Family Division orders are treated, particularly in cases involving the welfare of children and international jurisdictional issues.

No new legal precedent was established; rather, the court applied established principles governing contempt sentencing and the proportionality of custodial sentences in family law contexts.