Court declares further sentence for contempt beyond its powers in missing child case

Family Law|News|January 8th 2014

An Egyptian man who spent two years in prison for contempt after refusing to reveal the whereabouts of his daughter cannot be sentenced to a further term behind bars, the High Court has declared.

Tamer Salama took his daughter Elsa, then aged four, from his English ex-wife, Naomi Button, during a family visit to Egypt in December 2011. He was arrested shortly after his return to the UK and jailed on 5 January 2012 for contempt of court after refusing to reveal the child’s whereabouts.

Meanwhile Elsa is believed to be living with Salama’s family back in Egypt.

Salama’s sentence for contempt was renewed three times last year – in JanuaryJuly and September.

Sitting at the High Court before Christmas, Mr Justice Holman noted that Salama’s time behind bars had amounted to “the equivalent of a custodial sentence of almost four years’ imprisonment, after allowance for release after serving half any such sentence.”

The judge continued:

“Judges, including myself, have been sure that [Salama] can comply and is, rather, choosing not to comply. But that is the stance which he has taken. Although successive orders are legally permissible, the reality in this case is that from day one this father has manifested an absolute determination not, under pressure of court orders, to reveal the whereabouts of his child and not to cause her return to England.”

He added:

“That is a very grave contempt of court in the circumstances of this case, but it was no less grave at the outset than it is now. The reality is that he made very plain indeed at a very early stage that he would not comply with these orders. For that flagrant contempt he could of course have been sentenced to the maximum term. The maximum term was two years’ imprisonment.”

He therefore rejected an argument by legal representatives for Ms Button, that Salama should be sentenced to a further 12 months.

“So far as the coercive purpose of any sentence is concerned, I am afraid it is my clear view that this man has an absolute determination, at any rate while he remains detained in prison, not to obey the orders of this court, and that the coercive force of any sentences of imprisonment is now spent. So if I were to commit him to prison for a further term, the realistic purpose would be solely to punish him, which, for the reasons I have given, I cannot lawfully further do [under section 14 of the Contempt of Court Act 1981].”

Mr Justice Holman concluded his judgement “…by making plain that I have the utmost sympathy for the mother in her situation and the utmost concern as to the welfare and wellbeing of Elsa, who has now not seen either of her parents for two whole long years, less merely a few days. The father said during this hearing earlier today that he strongly wishes to promote at least some contact between the child and her mother, and wishes to enter into discussion and negotiation.”

There would therefore be, he ruled: “a welfare hearing focused very strongly on the welfare and wellbeing of Elsa, at which I hope it will be possible for the court to make significant forward progress in this tragic case.”

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