UK: Abduction by parent can be kidnapping

Source: The London Criminal Courts Solicitors’ Association

Court of Appeal, Criminal Division

Published January 11, 2012

Regina v Kayani

Regina v Solliman

Before Lord Judge, Lord Chief Justice, Lord Justice McFarlane and Mr Justice Royce

Judgment December 13, 2011

It no longer necessarily followed that for policy reasons a charge of kidnapping had always to be deemed inappropriate where a child had been abducted by a parent.

If the only person who was available to care for children had committed serious offences, even when full allowance was made for the interests of the children, it did not follow that a custodial sentence, of appropriate length to reflect the culpability of the offender and the harm arising from the offence, was inappropriate and there was 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 fell to be considered.

The Court of Appeal, Criminal Division, so held when dismissing appeals against sentence:

(i) by Talib Hussein Kayani, who pleaded guilty on April 12, 2011, at Luton Crown Court to two counts of abducting a child (his two sons born in 1994 and 1995) for which he was sentenced by Mr Justice Cooke to concurrent terms of five years’ imprisonment on each count; and

(ii) by Madhat Solliman who pleaded guilty on February 21, 2011, at Harrow Crown Court to three counts of abducting a child (his two daughters born in 1993 and 1994 and one son born in 1996) for which he was sentenced by Judge Greenwood to concurrent terms of three years’ imprisonment on each count.

Mr Bernard Richmond, QC for Kayani; Mr Tom Little for the Crown. Mr Anthony Heaton-Armstrong (assigned by the Registrar of Criminal Appeals) for Solliman; Mr Dominic Bush for the Crown.

THE LORD CHIEF JUSTICE said, in the reserved judgment of the court, that child abduction had become increasingly troublesome. In the present cases the children had deliberately been taken abroad and separated from their mothers for many years which meant that the ordinary loving relationship which each should have enjoyed with the other had been irremediably severed.

The offence of child abduction at its most serious was akin to kidnapping, on conviction of which a sentence of life imprisonment was available, whereas for offences contrary to the Child Abduction Act 1984 the maximum sentence was seven years’ imprisonment.

There were some cases of child abduction where, given the maximum available sentence, the available sentencing options did not properly reflect the culpability of the offender and the harm caused by the offence.

In their Lordships’ view it was clear that simply because the child had been abducted by a parent, it no longer necessarily followed that for policy reasons a charge of kidnapping had always to be deemed inappropriate.

To that extent the observation of the court in R v C (The TimesNovember 9, 1990; [1991] 2 FLR 252) that prosecutors should avoid charging anyone with child kidnapping at common law had been overtaken by events and had no continuing authority.

The problem, however, with the charge of kidnapping was the difficulty of proving the ingredients of the offence: (i) the taking and carrying away of one person by another, (ii) by force or by fraud, (iii) without the consent of the party taken and carried away, and (iv) without lawful excuse.

An offence under the 1984 Act, however, committed by one parent, involved the absence of consent not of the child, but of the other parent and was straightforward and readily capable of proof.

Their Lordships invited the Law Commission to address the question whether cases where children had been removed from one parent by the other should be treated as kidnapping offences. They also recommended that the maximum sentence for child abduction should be increased.

The present offences had wholly achieved their intended purpose. Any reference in mitigation to the right to family life, whether at common law or in accordance with article 8 of the European Convention on Human Rights, was misconceived.

In effect the submission involved praying in aid and seeking to rely on the very principle which the defendant had deliberately violated, depriving the other parent of the joy of his or her children and depriving the children of contact with a loving parent with whom they no longer wished to communicate.

The mothers had suffered extreme emotional hardship and although the children themselves were unaware of it they had been deprived of one of the foundations for a fulfilling life.

The periods of abduction had been prolonged, many years in duration, and the relationship with the mothers had been irremediably damaged. In the case of the mothers, the hardship would be life long.

Given those 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 was a direct consequence of his actions.

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