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: 24
th
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 19
th
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.
14.
That, however, is not the end of the matter. The problem with the charge of kidnapping is the difficulty of proving the ingredients of the offence. In
R v D
four ingredients were identified. First, the taking and carrying away of one person by another, second, by force or by fraud, third, without the consent of the party taken and carried away, and fourth, without lawful excuse. Unfortunately the law is somewhat confused, and indeed is currently the subject of consultation by the Law Commission. The particular difficulty identified in Smith and Hogan’s Criminal Law, 13
th
Edition, is the confused relationship between these ingredients, and in particular “(i) the deprivation of liberty, (ii) the absence of consent, (iii) being taken or carried away, (iv) the use of force or fraud, (v) the absence of a lawful excuse … it is difficult to determine whether the force or fraud must be the means of carrying away (as Lord Brandon’s speech … suggests) or the reason for the lack of consent. A further question is whether the consent must be (a) to the taking or carrying away, (b) the deprivation of liberty, (c) both, (d) being taken by force or fraud”.
15.
It is not open to this court to redefine the ingredients of the common law offence of kidnapping, at any rate, by extending its ambit. In the present and similar cases, even if by reason of their age alone sufficient evidence to infer the absence of consent were available, there is, and would be unlikely to be any evidence that force or fraud was used on the children to achieve their removal from their mother’s care. Such evidence is a pre-requisite to a conviction. There is a separate evidential problem. Proof of force or fraud on the children, and the absence of consent, may require interviews with them when they have already been damaged, and ultimately evidence given by them against the kidnapping parent. Even assuming that they are hostile to the kidnapping parent (unlike the present cases) the potential for adding to the trauma suffered by the children is considerable.
16.
We are left with this position. An offence under
the 1984 Act
, committed by one parent, involves the absence of consent not of the child, but of the other parent. The ingredients of the offence are straightforward. They are readily capable of proof. An offence of kidnapping by one parent of his or her children is much more problematic, and difficult of proof. The Law Commission may or may not recommend reform of the common law offence of kidnapping. If it does, any relevant reforms would require legislation. For the present, we invite the Law Commission to address the question whether cases where children are removed from one parent by the other should be treated as kidnapping offences. In the meantime, in any event, pending any possible change to the substantive law, there are cases falling within the child abduction offence which merit a sentence greater than the maximum current sentence of 7 years imprisonment after a trial. We recommend that the maximum sentence for child abduction should be increased.
17.
With these considerations in mind, we shall summarise the facts revealed in these appeals.
Talib Hussein Kayani
18.
This appellant, now 49 years old, of previous good character, pleaded guilty on 12
th
April 2011 in the Crown Court at Luton to two offences of abducting a child. On 28 June he was sentenced by Cooke J to 5 years imprisonment on each count to run concurrently. An appropriate order was made under
section 240A of the Criminal Justice Act 2003
.
19.
The appellant is a native of Pakistan. He moved to the United Kingdom in 1971. In 1993 he married Karen Ellis. They have two sons, Hussein and Hashim who were born on 1 February 1994 and 2 July 1995 respectively.
20.
During 1996 the marriage deteriorated. The parties were living in Scotland. The appellant’s wife asked him to leave the matrimonial home, but he refused. So she left the home in June 1998, with the children, and went into rented accommodation. In 1998 they separated. Before their separation he told her that if they split up he would take the children and return to Pakistan. Private law proceedings followed. On 8 July 1998 an interim interdict prohibited the appellant from removing their sons from their mother’s care and control. Shortly afterwards, on the basis of a court order, contact arrangements were made between the appellant and his sons. It was a condition that he should give his United Kingdom passport to their mother while contact took place.
21.
From about November 1999 the contact arrangements enabled the appellant to have contact with his sons every second weekend. They stayed from Saturday morning until Sunday evening. That appeared to be working well. However, unknown to the mother, on 10 November 1999 on the false basis that his original passport had been stolen from his car, the appellant applied for a replacement United Kingdom passport Shortly afterwards a replacement passport was issued. In the meantime, again, without her knowledge, he obtained Pakistani passports for the children.
22.
In December 1999 the parents signed an agreement drawn up by solicitors to allow the appellant residential overnight contact to include holidays such as Eid. Again, it was part of the arrangements that the appellant’s passport should be handed to the complainant for the duration of each visit.
23.
On 2 January 2000 the mother met the appellant on the M6. She handed the boys, then aged 5 and 4 years respectively to him for the week. She was given the appellant’s old United Kingdom passport which had never been stolen. The children were to stay with him until 8
th
January. She never saw her children again.
24.
On 4 January the appellant flew to Pakistan, with the children, and his sister, using his newly obtained United Kingdom passport and the Pakistani passports he had obtained for the children. On 5 January he telephoned her and told her that he was in Pakistan with the boys. He asked her to send out their United Kingdom passports. She refused. She said that she would fly out to Pakistan and give him his passport if he would return the children. There was some further contact in January 2000, but she was unable to make any further contact between January 2000 and 2006. She made every possible effort. She flew to Pakistan on two occasions to find her sons. She stayed there for several months. She took court proceedings in Lahore. She hired private investigators and lawyers. She held press conferences to highlight her case. All to no avail, although the appellant knew perfectly well that she was in Pakistan, making these considerable efforts to find her children.
25.
In 2006 the mother decided to take divorce proceedings against the appellant. The papers were served at his sister’s address in Luton, where he had taken the children for the Eid festival in January 2000. Thereafter the mother received three or four telephone calls from the appellant, pressurising her to drop the case for divorce and requiring the return of the passport he had left with her, in effect, as security for the return of her children. Even during these telephone calls he would not tell her where the boys where.
26.
On 2 July 2007 the appellant telephoned the mother, and said that she could speak to her sons as it was Hashim’s birthday. She spoke to two people, who may or may not have been her sons, but she could not be sure she did because their accents had changed. Shortly afterwards, at Christmas time 2007, the appellant suggested to her that she could have internet contact with her sons. She said that she wants to see them. He refused. All he really wanted was for the divorce proceedings to be dropped. She asked him to send a photograph of her sons, but she never received one.
27.
In May 2009 the appellant returned to the United Kingdom with both his sons. By then they were 15 and 13 years old. He took them to live in an address in Luton. He made no effort to contact the mother. By then they were divorced. After a routine search of the missing persons register, the police visited the family address in Luton, where the occupants said they had not seen the appellant and his sons for years. However enquiries were made at local schools, and the boys were eventually identified. The police returned to the original address. On the following day they received a telephone call from a solicitor acting for the appellant saying that he would come to the police station on the following day. He did. He came with his solicitor and his two sons. They had already been briefed. They would not respond to any questions from the police about the time they had spent in Pakistan “without a solicitor or their father present”.
28.
In his interview the appellant was unrepentant. The effect of some of his answers suggest that he was quite willing to use his sons to shield himself from the consequences of what he had done.
29.
The mother has still never seen her sons. They are now aged 17 and 16 years. They refuse to have contact with her. One of the unbearably poignant pieces of evidence in this case is the profoundly loving letter she has written to her sons. It shows that she fully understands that they are not themselves to blame for the attitude they have adopted to her, and leaves open the door to them if at any future date they would like to have contact with their mother. However in practical realities she has lost them for ever.
30.
The appellant has no previous convictions or cautions. The pre-sentence report suggested that he had no genuine remorse for his behaviour, and no insight into the emotional and psychological damage that his children, and their mother, will have experienced as a result of his actions. He was described as an intelligent man, but manipulative, self centred and deceitful.
31.
The sentencing judge summarised the essential features of the case. He addressed the argument with which we shall have to grapple. He concluded that it was no use for the appellant to argue that he should not be sent to prison because he was the sole carer of his sons. He was the sole carer simply because of the offence he had committed in 2000, the effect of which continued through his return to this country, and thereafter. The judge acknowledged that as the sons were old enough to make their own decisions about where they would live, any applications by the mother would be pointless. He recognised that although the disruption to their lives would be considerable, a substantial sentence of imprisonment on the appellant was required. The sentence included a deterrent element. Children could not simply be removed from the jurisdiction to avoid the effect of court orders. He allowed a 20% reduction in the sentence for a late guilty plea.
32.
In written grounds of appeal it is suggested that the judge failed to consider the consequences of the sentence of imprisonment on the appellant, g
iven that he was the sole career to the children.
The sentence involved serious consequences for the children, breaching their rights under Article 8 of the European Convention on Human Rights. This was not an appropriate case for a deterrent sentence. In his oral submissions, Mr Bernard Richmond QC, on behalf of the appellant, submitted broadly that, given the maximum sentence available for this offence, the judge had adopted too high a starting point. There were or would be worse cases, such as abduction for the purposes of forced marriage, and this case had to be fitted in to the very broad spectrum of criminality covered by this offence.
33.
The aggravating features of this crime are obvious. The abduction of two children was premeditated and planned. They took place in breach of a court order, and a carefully structured arrangement to obtain the necessary passports, and deception of their mother who believed that she was in possession of the only relevant passports, and so that the appellant would not be able to remove the children. Then, having taken them abroad, he deprived them of the care and love of their mother, and refused to countenance any contact between them. Effectively she missed their childhood, and they missed her love. Through no fault of their own, and through no fault of their mother, the children do not wish to see her. The chances that she will ever have contact with them, or they with her, have now become utterly remote.
Madhat Solliman
.
34.
On 21 February 2011 at Harrow Crown Court before His Honour Judge Greenwood the appellant pleaded guilty to 3 counts of abducting a child. They were the children of his marriage to Edith Edgar. On 21
st
April he was sentenced to 3 years imprisonment on each count.
35.
He sought to leave to appeal out of time,
and we granted leave. We shall explain the circumstances in a moment.
36.
The facts can be briefly summarised. The appellant and Edith Edgar began a relationship in 1992. They had 3 children, Freeda born in April 1993, Sarah, born in May 1994, and Adam born in 1996. They went through an Islamic marriage ceremony in 1995.
37.
The relationship between the couple deteriorated. Proceedings began in the family court in 2000. The appellant was of Egyptian origin, and various orders were made that the children should not be removed from the jurisdiction. In January 2002 he gave undertakings that he would not do so. However the appellant obtained false travel documents in a false name and booked tickets to Egypt in that false name. So he avoided the restrictions on his departure.
38.
Without notice to the court, or to the mother of the children, he removed all three children to Egypt in April 2002. They were then aged 8, 7 and 5 years respectively. The appellant did not return to the United Kingdom with the children until November 2009. He made no contact with their mother. However she discovered through a social networking site that they had returned. The police were contacted. The appellant was arrested in February 2010. When he was interviewed he admitted the abduction of the children. He was granted bail throughout the proceedings, and the children continued to live with him until he was sentenced.
39.
In the pre-sentence report it was stated that the appellant expressed some remorse and regretted that he had broken the law and upset the mother of the children, but he thought at the time that what he did was right.
40.
Passing sentence, Judge Greenwood pointed out that at the time of the abduction the family court had been considering the future of the children, and there was at the time a report which expressed a fair balanced view between the parties, noting the love that each parent had for the children and that the children had for the parents. What the appellant had done was quite deliberately to frustrate the whole process. The judge found that the mother had been devastated and had been deprived of contact with the children for many years. He accepted that the appellant had cared for his children well and had seen that they were properly educated. But he had disregarded the court process and treated it with contempt. Making allowance for the early guilty plea the least sentence was 3 years imprisonment.
41.
Mr Heaton-Armstrong who had appeared for the appellant at the Crown Court originally advised against any appeal against sentence. He took the view that it was within the proper range. In our judgment his assessment was correct.
42.
Leave to appeal out of time was sought as a result of developments in the proceedings in the family court. During these proceedings it was apparent that the children were hugely distressed at the absence of their father in prison. The elder girl, now 18, is a bright responsible young woman, studying for her A levels, but she needs to lead her own life and should not be placed in the position of a parent to her slightly younger sister, and younger brother. The children are supported by the appellant’s brother, but they live alone, and they need the care of their father. There is no chance of them returning to live with their mother or having any contact with her, a fact which she has been forced to accept. The judge in the family proceedings, focussing on the needs of the children as the paramount consideration made comments about the sentence which had been imposed on him. According to Mr Heaton-Armstrong’s note of the comments by the judge, which have been read over to her and subjected to some minor agreed amendments, she said
“You may relay to the Court of Appeal Criminal Division that, whilst I understand that the sentencing judge may have felt – given reasons of policy and deterrence – it necessary to impose immediate imprisonment, and acknowledging that child abduction is a very serious offence, given the complete alienation of the children from their mother – not only the responsibility of the defendant father in complex circumstances but also to an extent that of the plaintiff mother – the only competent parent, is the defendant father, who is in every respect a good father. The impact of such a sentence … appears not to be child centred. The children have been victims twice – of being abducted but also of being deprived of their father’s care.”
43.
In the light of these observations Mr Heaton-Armstrong advised that an application should be made for leave to appeal out of time, in essence, adopting the observations of the judge in the family proceedings in support of the application. In the circumstances, it was difficult to see how we could avoid granting leave to appeal.
44.
Mr Heaton-Armstrong focussed particular attention on the impact on the third child, the son, of the absence of his father, and the burdens imposed by his absence on his older children. Although at one stage in his argument he was inclined to develop the finding by the judge to the effect that the mother herself might have some responsibility for the alienation of her children from her, we suggested that this approach would be unlikely to assist. The contemporaneous report, prepared before the children were abducted, was consistent with a normal loving relationship between the mother and the children, and although the mother’s efforts to contact them were less intense than those of the mother in the first of these appeals, the reality was that the children’s alienation from her was a direct result of the years when they lived abroad, separate from her. The issue is whether the interests of the children now should lead to a reduction to what in the overall circumstances was the least possible sentence.
45.
We do not propose to embellish the observations of the sentencing judge, which we have summarised and with which we agree. This was a prolonged abduction, and the natural bond between mother and children has been permanently severed. The most serious features of the case closely resemble the features identified in Kayani.
Sentencing decisions
46.
We have considered various different sentencing decisions, reflective of the facts. We shall begin with
Riasat Khan
[1993] 14 Cr App R (S) 571. The appellant was the father of a little girl, who was convicted by the jury of child abduction. The marriage had deteriorated and the parties had separated. To begin with the child lived with her mother. An attempted reconciliation took place. The appellant obtained a passport for the child by pretending that the original passport had been lost. With the necessary documentation he took the child to Pakistan where he left her in the care of his mother. He returned to England. He refused to return the child. The child remained in Pakistan. He was sentenced to 5 years imprisonment. The sentence was upheld. The focus of the submission on his behalf was that insufficient weight had been paid to the cultural practices of the appellant, but in any event, the infant was not a stranger to her grandparents, and she was well cared for. The court acknowledged these considerations, but was concerned by what was described as the “immediate trauma upon her of being removed” to Pakistan, but above all, “the catastrophic consequences of this conduct upon the child’s mother.” The mother was now “bereft, seemingly for good, of that child”. The appellant expressed no regrets and had none, and he was unwilling to take any steps to procure the return of the child to this jurisdiction. The appeal was dismissed.
47.
In
R v Downes
[1994] 15 Cr App R(S) 435 a sentence of 3 years imprisonment was upheld on a father who abducted his 2 year old daughter in defiance of a court order which denied him access to the child and took her abroad.
48.
In
R v Holland
[1996] 1 Cr App R(S) 368 a father who abducted his young daughter who was in the care of foster parents as a result of a court order was imprisoned for 18 months. The sentence was upheld.
49.
The question for decision in these appeals is whether sentences which were passed to reflect the true culpability of the father should now be reduced so that he can return home to his children, in effect for their sakes. If not, they will suffer the consequences of his absence, with all that means. If however the sentence is reduced he will in effect have benefited from his own crime, one consequence of which is that his children have become solely dependent on him.
50.
In
R v Dryden-Hall
[1997] Cr App (S) short sentences were imposed after the abduction of a child who was eventual returned 21 months later, from a country which was party to the Hague Convention. The sentence on the mother, who had abducted the child, was reduced because the child no longer wished to have anything to do with her, and the court was anxious that the bond between them should not be further damaged. That was an unusual case, the interests of the child in the preservation of the maternal bond led to a reduction in the sentence imposed on the mother who had abducted the child.
51.
In
R v Brennan
[2007] 2 Cr App R(S) 50 the appellant had married a woman with a 4 year old son by a previous relationship. About 2 years later she left the matrimonial home when she was pregnant and went to live with her parents where her second son was born. A residence order requiring the second child to live with the mother and allowing contact with the appellant at weekends was made. After they divorced she remarried. They agreed in 2003 that the second son would live temporarily with the appellant while the mother and new husband found a new home. The appellant sought to prevent contact with the mother, and eventually in 2004 took his son to Canada where he married another woman. She left him after giving birth to his child. The appellant was deported and arrested in 2005 on his return to the United Kingdom. After the trial, the sentencing judge concluded that the offender was a manipulative and controlling individual. He sentenced him to 4 years imprisonment. On appeal it was argued that a sentence of this length was more appropriate to cases where a child was abducted by a stranger rather than a member of his own family. The appeal was dismissed.
52.
In
R v M
[2008] 2 Cr App R(S) 73 a sentence of 16 months imprisonment was upheld on the stepfather of an 8 year old child who knowing that to do so would constitute a breach of a court order, assisted the child’s mother to abduct him. The mother and child had disappeared. The appellant was arrested and in due course pleaded guilty to abduction. The appeal was dismissed.
53.
It is unnecessary to embellish this judgment with reference to any further sentencing decisions. The sentencing decision in cases like these is not merely facts specific, as it is in every case, but a decision of heightened sensitivity. The general theme, however, is that the offence, even if committed by a loving parent, is a serious offence and one of the repeated themes in the sentencing decisions is that there should be a significant element of deterrence in the sentence.
Conclusion
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, whether at common law, or in accordance with Article 8 of the Convention, 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. There is a distinct consideration to which full weight must be given. It has long been recognised that the plight of children, particularly very young children, and the impact on them if the person best able to care for them (and in particular if that person is the only person able to do so) is a major feature for consideration in any sentencing decision.
55.
These are offences of great seriousness, with the additional complexity arising just because the abducting parent is the person best able to provide the children with a home.
56.
Dealing with it generally, where the only person available to care for children commits serious offences, even allowing fully for the interests of the children, it does not follow that a custodial sentence, of appropriate length to reflect the culpability of the offender and the harm consequent on the offence, is inappropriate. On reflection, we can see no reason why the offence of child abduction should be placed in a special category of its own when the interests of the children of the criminal fall to be considered. Indeed in one sense, if the consequence is that the children wish to have nothing to do with the parent from whom they have been abducted, and have nowhere else to go, a further consequence of the abduction itself is the hardship then endured by the children.
57.
These offences wholly achieved their intended purpose. 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.
58.
We acknowledge that the sentence on Kayani, constrained as it was by the maximum available sentence, was at the higher end of the appropriate bracket following a guilty plea. Nevertheless in the outrageous circumstances of the case, it was not manifestly excessive. In relation to Solliman’s appeal the sentence was an appropriate sentence, and we should add that had it been somewhat longer, we should have been unlikely to interfere. Accordingly both appeals are dismissed.