Friday, January 27, 2012

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.

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