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Judgment the Lord Chief Justice of England and Wales

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Judgment the Lord Chief Justice of England and Wales Neutral Citation Number: [2011] EWCA Crim 2871 Case No: 2011/03662A5 (KAYANI) AND 2011/05512A8 (SOLLIMAN) IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/12/2011 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES LORD JUSTICE McFARLANE and MR JUSTICE ROYCE - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - v - Kayani Appellant And R Respondent - v - Solliman Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B Richmond QC for Kyani T Little for the Crown A Heaton-Armstrong for Solliman D Bush for the Crown Hearing dates: 24th November 2011 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1.These appeals against sentence involve fathers who abducted their children and took them abroad for very many years. They raise common questions relating to sentencing considerations in the context of the Child Abduction Act 1984 (the 1984 Act), but they are not otherwise factually linked. Offences against the 1984 Act committed in the familial setting, are committed by mothers and fathers. They have become increasingly troublesome. Child abduction and kidnapping 2. Child abduction, like every other offence, can take many forms. It may include the abduction of a child for a few days, or even a week or two, followed by the child’s return, effectively undamaged, and, more important, although the parent from whom the separation was effected has suffered distress and anxiety in the meantime, with the loving relationship between parent and child quite unharmed. At the other extreme there are offences of forced marriage which ultimately culminate in what in reality is rape, or cases like the present, where the child is deliberately taken abroad and separated from one of its parents for many years, and the ordinary loving relationship which each should enjoy with the other is irremediably severed. 3.The Hague Convention on the Civil Aspect of International Child Abduction 1980 is designed to protect children from unlawful removal and detention abroad and to procure their return home as promptly as possible. When children are removed to a country which is a signatory to the Convention, dealing with it generally, the Convention works relatively well. When however the child is removed to a country which has not become a party to the Convention, the difficulties of achieving the return of the child to the country from which he or she has been taken are always immense, and sometimes insuperable. Cases of this kind are becoming too frequent. 4.The Child Abduction Service of the Foreign and Commonwealth Office has indicated that between April 2010 and March 2011 the highest number of reported abductions from the United Kingdom were into Pakistan. Pakistan is not a signatory to the Hague Convention. A Protocol has been agreed between the family courts in this jurisdiction and those in Pakistan which encourages a judicial approach compatible with that of the Hague Convention The United Kingdom and Pakistan consensus on child abduction (2003) Fam Law 199. This operates if the parent from whom a child has been removed successfully traces the abductor and issues proceedings in the family court in Pakistan. Nevertheless where children are taken to Pakistan there are no codified arrangements by which court process can be used to procure their return to this country, and contact with the parent who lives here. During this period the number of new cases involving the abduction of children to Pakistan was 21, which made the total number of active cases during this period at any one time, no less than 55 cases. During the same period, 13 new cases of abduction to Thailand took place, with a total number of active cases at any one time during the period at 31. The third highest destination was India, with 9 new cases reported, bringing the total number of active cases at any one time to 21 cases. None of these countries is a signatory to the Hague Convention, although in India appropriate legislation is contemplated. 5.At its most serious, therefore, the offence of child abduction is akin to kidnapping. On conviction for kidnapping a sentence of life imprisonment is available. For offences contrary to the 1984 Act, the maximum sentence is 7 years imprisonment. This wide discrepancy seems illogical. There are some cases of child abduction where, given the maximum available sentence, with or without the appropriate discount for a guilty plea, the available sentencing options do not meet the true justice of the case, properly reflective of the culpability of the offender, and the harm caused by the offence. 6. In R v D [1984] AC 778 the single question for decision was whether a father could be convicted of kidnapping his own child. The Court of Criminal Appeal, presided over by Watkins LJ held that in relation to a child under 14 years of age there was no such offence. We suspect that this decision may have triggered off the process of reform which culminated in the 1984 Act, but that reform may have been consequent on the heightened interest in the problem consequent on this country’s signature to the Hague Convention. In any event, however, the House of Lords concluded that a father may indeed be convicted of kidnapping his own child. Lord Brandon, at p805, explained that: “While a father who behaved in the way that the respondent did in snatching his own child …, might well, if he had behaved in the same way in the 19th century, have escaped conviction for kidnapping her on the ground that his paramount authority as a father afforded a lawful excuse for his conduct, that defence could not possibly avail him in the face of the radically changed social and legal attitudes of today.” 7. The remaining members of the House of Lords agreed that the common law offence of kidnapping could be committed by a father who, whether in contravention of a court order or not, kidnapped his own child. Lord Bridge expressed a reservation about the possible impact on the offence of the absence of evidence of such contravention. 8. In general, Lord Brandon accepted that normally speaking, the conduct of parents who snatch their children in defiance of a court order relating to their custody or care and control should be dealt with for contempt of court, rather than by way of a distinct criminal prosecution. Nevertheless he accepted that there were exceptional cases where the ordinary right-thinking person “would immediately and without hesitation regard” the conduct of the parent as criminal in nature. 9. Shortly after this decision, the 1984 Act came into force. Thereafter there were in theory three possible ways in which the court could deal with the parent who abducted his child. First, by proceedings for contempt of court on the basis that an order of the court had been flouted; second, prosecution for an offence under the 1984 Act; and third, prosecution for kidnapping, either on the basis of force, or fraud in achieving the removal of the child from the other parent. 10. In R v C [1991] 2 FLR 252 a father who took his child from his mother was convicted of kidnapping and abduction. The conviction for kidnapping was quashed on a variety of different grounds, including the doubtful validity of the judge’s directions about the offence, and the admission of material which was seriously prejudicial to the father. The conviction on count 2 was, notwithstanding long and complicated and potentially confusing directions of law, upheld on the basis that the proviso applied. Giving the judgment of the court, Watkins LJ observed: “… we think it right to say that we deprecate the inclusion of this count in the indictment. We do not agree with the judge that this was an exceptional case which merited the inclusion of such a count. Nor do we accept … that there was an acceptable reason for the prosecution to include it. The second count comprehensively encompassed the allegations against the appellant, and that alone should have been relied upon. It is our firm opinion that prosecutors should, in future, avoid altogether charging anyone with child kidnapping at common law.” 11. If this observation was invariably applied, the offence of kidnapping, if committed by a parent who seized a child from the other parent, had, notwithstanding the decision in R v D, for all effective purposes been made supernumerary. 12. We have carefully reflected on the guidance offered by Watkins LJ in R v C in the context of the removal of young children from one parent by another with the intent to sever or reckless whether the natural connection between the child and the parent would be severed, and second, in the context of forced marriages. The Forced Marriage (Civil Protection) Act 2007 inserted Part 4A to the Family Law Act 1996. The effect is to give civil courts the power to make “forced marriage protection orders”. In short, these are forms of injunction which restrict the ability of an individual to do things, or requires them to do things to ensure the protection of a person from a forced marriage. Such an order can have extra territorial effects. Enforcement is based on a power of arrest, followed in due course by contempt proceedings. For contempt, a maximum sentence of 2 years imprisonment is available. In the case of forced marriages that is likely to be an utterly inadequate sentence. 13. Our view is clear. Simply because the child has been abducted by a parent, given current conditions, it no longer necessarily follows that for policy reasons a charge of kidnapping must always be deemed inappropriate. To that extent the observation of the court in R v C has been overtaken by events and has no continuing authority.
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