R v Kayani and Solliman: Any damage to welfare of children does not justify reduction in sentence for abduction

Lord Judge

Should a prison sentence for child abduction be reduced because it may adversely affect the children, who are now in the care of the abducting parent?

That was the question to be answered by the Court of Appeal in the conjoined appeals of R v Kayani and R v Solliman [2011] EWCA Crim 2871, which have just been brought to my attention thanks to Family Law.

As these are criminal cases, I will not go into detail, as there are obviously matters beyond my area of expertise, such as the discussion of sentencing under the Child Abduction Act 1984 (for which the maximum is 7 years) compared to the offence of kidnapping, for which the maximum is life. Instead, I will concentrate on those areas of interest to family lawyers.

In the Kayani case, the father abducted the two boys, then aged 5 and 4, in January 2000, and took them to Pakistan. The mother has not seen them since. In May 2009 the father returned to the United Kingdom with both boys, who continued to live with him. The boys are now 17 and 16, and refuse to have contact with their mother. In 2011 the father pleaded guilty to two offences of abducting a child and was sentenced to 5 years imprisonment. He appealed against the sentence, suggesting that the judge failed to consider the consequences of the sentence of imprisonment on him, given that he was the sole carer for the boys, and that the sentence involved serious consequences for them.

In the Solliman case, the father abducted three children, then aged 8, 7 and 5, in April 2002 and took them to Egypt, returning to the UK with them in November 2009. As a result of the abduction, "the natural bond between mother and children has been permanently severed", and there is no chance of them having any contact with her. In 2011 the father pleaded guilty to three counts of abducting a child and was sentenced to 3 years imprisonment on each count. He appealed against the sentence, claiming that the children were hugely distressed at the absence of their father in prison. The issue was whether the interests of the children should lead to a reduction in sentence.

Giving judgment, Lord Judge said (at paragraph 54):

"The abduction of children from a loving parent is an offence of unspeakable cruelty to the loving parent and to the child or children, whatever they may later think of the parent from whom they have been estranged as a result of the abduction. It is a cruel offence even if the criminal responsible for it is the other parent. Any reference in mitigation to the right to family life ... is misconceived. In effect the submission involves praying in aid and seeking to rely on the very principle which the defendant has deliberately violated, depriving the other parent of the joy of his or her children and depriving the children from contact with a loving parent with whom they no longer wish to communicate."

He continued (at paragraph 57):

"The mothers have suffered extreme emotional hardship, and although the children themselves are unaware of it, they have been deprived of one of the foundations for a fulfilling life. The periods of abduction were prolonged, many years in duration, and the relationship with the mothers was irremediably damaged. In the case of the mothers, the hardship will be life long. Given these stark facts, making every allowance for the impact on maturing teenage children of the imprisonment of their father in the light of their current living and educational arrangements, any damage to their welfare is a direct consequence of his actions. This does not justify a reduction in what would otherwise be entirely appropriate sentences."

Accordingly, both appeals were dismissed.

In Practice: Debarred and down

A briefer than usual In Practice this week, for reasons that will shortly become obvious.

The biggest piece of professional news this week is undoubtedly that @Geeklawyer has been struck off (alright, it may not be the biggest, but I'm a bit short of other news, as will be seen). I suspect that there may be some within the profession who have been hoping for this news for years, although whether Geeklawyer actually gives a damn, I'm not too sure. The story has already been covered in detail by Charon QC, so I won't say much more, save that whatever Geeklawyer turns his hand to in future, I hope that he will continue to amuse those of us who still have a sense of humour.

OK, at this point I was going to talk about a couple of stories that appeared in the Law Society Gazette this week, but I can't, as the Gazette's website is down AGAIN. The site has been slow and unreliable for as long as I've been using it (which is about as long as it's existed), and hardly gives the best impression of the body that represents half of the entire profession. DO SOMETHING ABOUT IT LAW SOCIETY. (As I write this the Gazette has tweeted: "Apologies once more for current Gazette website issues. The site will be back up soon." Note the words "once more". As for it being back up soon, I've got other things to do, so I can't wait, sorry.)

Holocaust Memorial Day

Wedding cake made out of divorce papers

Not entirely sure what this is saying, but I like it:

Image and cake: ktyazoo on flickr

Child maintenance news

It was good to see Lord Mackay opposing the government's plans to charge parents for using the CSA, although it seems that the chances of obtaining any form of concession are remote. Nevertheless, in 'response' to such opposition the Department for Work and Pensions has today announced an additional £20 million to help families work out their own child maintenance arrangements (although exactly how this money is to be used is not entirely clear).

I'm sorry, you can throw as much money as you like at helping families agree child maintenance arrangements, but that will have no effect whatsoever upon the real problem with child maintenance: the absent parents who refuse to pay. All the new system is doing is penalising the parent with care by charging them to use a service that was previously free, with no improved likelihood of the CSA actually recovering anything from recalcitrant parents.

Still, the most important thing with any government is spin, and the headline '£20 million to help separating families' looks good.

Meanwhile, the Child Maintenance and Enforcement Commission has today released the latest CSA performance statistics, for the quarter ending December 2011. Key facts revealed by the statistics include:

• The percentage of cases with a child maintenance liability in which maintenance is being paid rose from 77.8% as at September 2011 to 78.0%.
 
• 882,600 children were benefiting from maintenance, up from 876,100 in September.
 
• £1,180.1m maintenance was collected or arranged in the 12 months to December 2011 of which £121.1m was arrears. This is up from £1,168.7m in the 12 months to September 2011 of which £122.1m was arrears.
 
• 89.4% of cases received in September 2011 were cleared within 12 weeks, which was actually slightly down from the 89.7% figure for cases received in June 2011.

So, generally improving performance, although I can only imagine the horrific effect that the government's proposed changes are likely to have upon the figures.

Don't believe a word...

Ken Clarke says mediation "is quicker, cheaper, less confrontational and it encourages people to resolve their issues rather than turning to judges and lawyers" - Ministry of Justice, 23rd January 2012

Religion rears its ugly head

Causing trouble wherever it goes as usual, the subject of religion has cropped up a couple of times over the last few days in relation to family law matters.

Firstly, Carl Gardner at Head of Legal wrote a post taking issue with the absurd claim that "Islamic law can be compatible with the toughest human rights legislation", and expressing the view that decisions of sharia councils in family matters could not have legal effect through the Arbitration Act 1996. I'm afraid I rather put a spanner in the works of that argument (which I believed to be correct myself) when I referred Carl to this article on Family Law Week (after being reminded of it by Marilyn Stowe), which explains a family law arbitration scheme which is due to be launched next month. In the light of that, Carl now asks whether there is anything in the Act to prevent sharia tribunals acting as binding arbitrators in family disputes

This is a very important and disturbing question. The mere thought of family disputes being adjudicated by reference to some ancient religious text must surely be of serious concern to any right-minded person.

I don't care if sharia councils rule on religious matters - such things are of no consequence in the real world. As to matters of English family law, clearly sharia councils could not have jurisdiction to dissolve legal marriages, but they could (and may already) be used to 'resolve' financial matters on divorce and (even more worryingly) to deal with private law children disputes.

I have no expertise in arbitration whatsoever, so I will wait with interest to see what conclusion Carl reaches.

Meanwhile, yesterday Bailii reported the case of Re N (A Child: Religion: Jehovah's Witness) [2011] EWHC B26 (Fam). As the title suggests, this case dealt with the issue of one parent (the mother) being a Jehovah's Witness, and the other parent's concerns regarding the upbringing of the child.

Now, don't get me started about Jehovah's Witnesses - if dragging your children around door to door as you try to convert those with more sense than you to join such a mad sect isn't child abuse, then I don't know what is. Clearly, I'm not the best person to report on this case, so I won't. Instead, I'll leave it to the interested reader to look at and draw from it what they will.

Luck of the draw...

New Chair of Cafcass appointed

Baroness Tyler

The Department for Education has today confirmed the appointment of Baroness Tyler of Enfield as the new Chair of the Cafcass Board. The appointment takes effect today, and will last for three years.

Baroness Tyler has been Chief Executive Officer of Relate since 2007, and is a working Liberal Democrat Peer in the House of Lords. She previously held a number of senior positions within the government, most recently Director of the Vulnerable Children’s Group at the Department for Education and Skills. She was raised to the peerage in January 2011.

I thought I would take this opportunity to briefly explain what Cafcass is, for the benefit of the uninitiated. Cafcass (the Children and Family Court Advisory and Support Service, to give it its full name) was set up on 1st April 2001 under the provisions of the Criminal Justice and Court Services Act 2000. It brought together the Family Court Welfare Service (which was a subdivision of the probation service), the 57 panels of the Guardian ad Litem Service and the Children’s Division of the Official Solicitor’s Office. Cafcass is a body corporate, governed by the Board and managed by a Corporate Management Team, with Anthony Douglas as Chief Executive.

Its principal functions are to:

• safeguard and promote the welfare of the children,
• give advice to any court about any application made to it in such proceedings,
• make provision for the children to be represented in such proceedings,
• provide information, advice and other support for the children and their families.

Describing its work, Cafcass says that it "champions the interests of children involved in family proceedings, advising the family courts in England [Wales is covered by Cafcass Cymru] on what it considers to be in the best interests of individual children". The matters in connection with which Cafcass's trained Family Court Advisers advise courts include care proceedings, adoptions and private law proceedings, such as residence and contact disputes.

LoreCast for the week to the 23rd January 2012

Natasha and I return to bring you this week's top family law news stories and cases, in a short, easy-to-listen podcast:



(Those without Flash can listen here.)

Something for the Weekend: Laurel and Hardy - Towed in a Hole

I came across this whilst looking for another Laurel and Hardy video recently. One of my favourite clips from one of their best films:

In Practice: The Bar Barometer

I said when I started writing these In Practice posts that I might occasionally delve into the 'dark side' of the profession, where they have strange arcane customs (i.e. the Bar), and so it is today.

On Wednesday the Bar Council and the Bar Standards Board published the first full edition of the catchily-titled Bar Barometer, an annual report on statistical trends within the Bar. The foreword tells us that this edition "considers the Bar of England and Wales over the period 2006-11, focusing in particular on the statistics and information relating to those who were successful in gaining pupillage".

I confess that I have not read all of its fifty-seven pages, but the summary of 'key facts' tells us much of what we need to know, including most of the following:

• The number of practising barristers grew steadily in the five years to 2010, from 14,890 in 2006 to 15,387 in 2010, although the growth rate has actually declined.
 
• 80.7% of the total 'practising profession' in 2010 were self-employed. 
 
• The total 'practising profession' in 2010 comprised 65.2% men and 34.8% women.
 
• Of the 15,387 barristers who held practising certificates in 2010, 1,564 were from a 'black and minority ethnic group' ('BME'), although 1,938 did not disclose their ethnicity.
 
• 1,509 students were enrolled on the Bar Professional Training Course ('BPTC') in 2009/10 (out of 2,540 applications), of which 87% passed.
 
• There were 3,100 applications for the BPTC in 2010/11, an increase of 18% over the previous year.
 
• In 2010/11 446 First Six pupillages were registered, a decrease of 3%, and 477 Second Six pupillages were registered, a decrease of 3.6%.
 
• In 2010 QCs constituted 9% of the practising profession.

The chair of the Bar Standards Board Baroness Deech has expressed satisfaction that the report "demonstrates a positive representation of women, BME and disabled barristers", but the figures that have been making the headlines are the two that are not compatible: the increase in the number of applications for the BPTC and the decrease in the number of pupillages being offered. Clearly, there are going to be a lot of disappointed baby barristers out there, for whom the barometer will be registering extremely cold.

Blood on the carpet

Just  a quick heads-up for an article in the Gazette today regarding the increase in litigants in person. In it, District Judge Nick Crichton gives an excellent summary of the effect upon the family courts:

"We are getting more and more people coming to court in private law cases without the benefit of sensible, structured legal advice, wanting to spill blood on the court carpet. Angry with each other, they shout across the court, they refuse to listen when you try to calm them down and it is very difficult to find a solution that they will go away and work with."

And mediation isn't necessarily the answer:

"The government wants people to stay out of court but it is very difficult to get people to mediate when they are still very angry and haven’t had the benefit of decent legal advice. These cases take an inordinate amount of time, which is having a knock-on effect on public law cases getting before a judge."

You can read the article here.

Just an idea...

QualitySolicitors prepares for £15m ad campaign - Law Society Gazette, 19th January 2012

The Purity Bear

I have it on good authority that this is not a parody: