S (Children: Transnational Marriage Abandonment), Re

This is an appeal brought by the mother of two children from findings of fact made on 11 March 2025 by Mr Justice Trowell after a four-day hearing in the Family Division of the High Court. It is unfortunately the mother’s second appeal to this court in these proceedings.

This is an Afghan family. The proceedings arose from the removal of the children by their father from Afghanistan to the United Kingdom on 5 July 2023. The father and children remain here in a household that includes the father’s second wife, L. The mother, who had been the children’s constant carer, remains in Afghanistan. She has so far been unable to enter this country and the children have accordingly not seen her for two years. There is no remote contact either, despite an order being in place for regular video-call contact.

The father’s account was that the mother had consented to the children’s removal. The main issue for the judge was whether that was so. He found that it was not, and he further found that the father had assaulted the mother shortly before the removal. There is no appeal by the father from these findings.

However, the judge declined to make a finding of transnational marriage abandonment (‘TMA’) or of directly alienating behaviour by the father and L, and at the father’s behest he found that the mother had abused the children, though not in the terms that the father had sought. The mother now appeals in respect of those matters. The appeal is resisted by the father and the children’s guardian.

I am in no doubt that the appeal must be allowed for the reasons given below. The judge’s findings about the conduct of the father and the second wife did not do justice to the force of the evidence and the finding that the mother had abused the children was, at a minimum, procedurally unfair. I would remit the matter for welfare decisions to be made on the basis set out at the end of this judgment.

The judge did not give a narrative of the striking family history.

The parents married in 2009, when the father was 25 and the mother 17. They lived in Kabul. Their daughter A was born in 2011 and is now aged 14. Their daughter B was born in 2015 and is now aged 9.

In 2014, the father met L, who grew up in England and lives here. Their relationship was initially pursued in the Middle East and they developed a plan to set up home together in this country.

The father first visited England in 2017. In the same year, he made a dishonest application for leave to settle in the UK as L’s partner. He presented himself as unmarried and without dependent children. The application was rejected, probably because records showed him to be married to the mother. He then appealed or asked for reconsideration, producing a divorce certificate, and leave was granted. The judge found that the divorce certificate was a forgery. There is no appeal from that finding.

In February 2019, the father arrived in the UK and set up home with L. On 29 March 2019, they had a large wedding here. At a later date, solicitors acting for the father produced a letter dated 31 March 2019, purportedly from the mother, requesting that the children be allowed to join the father “in order to facilitate them with good education and lifestyle”. The judge found that the letter was a forgery. There is no appeal from that finding.

The mother was unaware of any of this activity on the part of the father and L. She and the children did not become aware of the father’s affair and purported marriage until 2020. The father was spending time in Afghanistan with the family and time abroad on business or with L. Until mid-2022, the children remained with their mother.

The judge did not need to make a finding about whether the father was validly married to L, but he recorded that the mother considered herself to be still married to the father.

Nonetheless, in November 2021, the father obtained leave to remain in the UK based on his family/private life.

Next, in April 2022, the father applied for a visa to bring the children to this country. He stated that he had sole responsibility for the children and that they lived with an aunt. He did not tell the mother he was doing this, and in the application he referred to her by an incorrect surname. L lobbied her MP in support of the application. The father produced a letter dated 12 May 2022 purporting to come from a hospital therapist who said he had been treating the children. It is a strikingly partisan letter, pleading for the children to be placed in an environment where they would be safe from physical and psychological abuse from their mother. When the mother became aware of it, she produced a letter dated 9 March 2024 from the dean of the hospital stating that it was false. The mother asked the judge to find that this was another fake document, but he made no finding about it.

In May 2022, again unbeknownst to the mother, the father made an application to the authorities in Pakistan, in which she and the children were also named, for a visa to visit that country. The judge did not consider this to support the father’s case that mother had agreed to the children going to Pakistan.

In the summer of 2022, the father told the mother that he was taking the children for a medical checkup in Kabul. Instead, he took them to Pakistan with a view to taking them on to the UK once he had obtained a visa for them. They remained there for three months and on the mother’s account (the judge made no finding) they had no contact with her during this period. After the mother contacted the British Embassy in Islamabad to say that she did not consent, a visa for the children was refused, and the father returned the children to Kabul.

The judge found, contrary to the father’s case, that this first removal from Afghanistan had taken place without the mother’s consent. There is no appeal from that finding.

On 27 April 2023, despite the mother’s position, the father by some means managed to obtain leave for the children to enter the UK as dependent children.

On 4 June 2023, in the course of an argument about the children, the father assaulted the mother, injuring her face. The father denied it, claiming that the injury had been caused by a member of the mother’s own family, but the judge found that he had assaulted her and that the children, who were at home, would have been aware of it. There is no appeal from that finding. The children have never spoken about this assault on their mother.

About two weeks later there was a family council, or Jirga, involving paternal and maternal family members. The father’s wish to remove the children to England was discussed and rejected. The father denied that there had been a Jirga, properly so called, but the judge accepted that his plan had been rejected by the families. There is no appeal from that finding.

However, on 5 July 2023, the father took the children out of school and brought them to England. The mother has not seen them since that day. She did not discover that they were in this country until August 2023 and some further time passed before she knew where they were living. The father’s case was that the children’s departure was planned and agreed with the mother. The judge found that, on the contrary, the mother had not consented to the children’s second removal from Afghanistan either. There is no appeal from that fundamental finding.

There was no contemporaneous evidence before the judge to suggest that, before the removal of the children, their relationship with their mother had been anything other than normal. The mother’s case was that she had occasionally chastised them physically in a way that is permitted in Afghanistan, but she denied having assaulted them.

It is a notable feature that, since their arrival in England, the children have refused to have any form of contact with their mother, and have not expressed any regret about leaving their home and family in Afghanistan.

In August 2023, there was a fraught exchange of text messages between the parents after a relative had sent the mother a photograph of the children going to a party in England, and after they had refused to speak to her on the telephone. The judge quoted these translated messages from the mother to the father:

“And Allah will never keep such people happy in their entire life.

By God I will neither think of such a child nor will I ever remember them.

Keep them with yourself.

Even if you bring them here I will spit on their faces.

May Allah never give such a rude child to anyone.”

The father deployed this to indicate that the mother did not want the children back and did not care about them. The mother said she had been overwhelmed by emotion. The judge did not find the August 2023 text messages helpful on the question of consent, and he accepted that it was “just that – an emotional outburst.” He went on, however, to say that it struck him as “informative as to the mother’s lack of control of her emotions and a remarkably easy descent into rage with the children.”

More recently, in October 2024, A began to be treated by CAMHS in England, receiving individual and family therapy sessions. Despite the existence of legal proceedings, the mother only became aware of this on reading this letter dated 21 February 2025 from the psychotherapist to the parties, which (as with other quotations) I anonymise:

“I am writing to inform you that A is being treated at … CAMHS for trauma which has had a detrimental impact on her mood, home life, appetite and sleep and ability to focus on school work. A regularly experiences repeating flashbacks and nightmares. The trauma is related to previous physical and emotional abuse and neglect at the hands of her mother in Afghanistan.

A has been having individual sessions which commenced in October 2024. Family Therapy appointments are offered alongside the individual appointments.

A lives in perpetual fear of her mother entering this country and harming both her and her family. There is a limit to the effectiveness of the therapy offered to address her trauma whilst the court case continues, alongside the possibility that her mother may be given permission to enter the country.”

Based on this lengthy history, stretching back to before B’s birth, the mother submitted to the judge that the father and L had perpetrated a ruthless and premeditated abduction, stranded her in Afghanistan, persistently lied about what they had done, and thoroughly indoctrinated the children against her. By then, her preference was for the children to remain living in England on the condition that she could have a relationship with them. She had made two unsuccessful visa applications to visit this country.

In November 2023, the mother applied for the summary return of the children to Afghanistan and for the children to be made wards of court.

A final hearing took place before HHJ Middleton Roy (sitting as a Deputy High Court Judge) between 22 and 24 April 2024. The father gave evidence that he had persistently tried to secure a visa for the mother to come to this country, and that he had not tried to divorce her as that would “sabotage” any visa application. There had been no Home Office disclosure.

The court dismissed the mother’s application for summary return on the basis that the mother had consented to the removal of the children. All of her allegations against the father were dismissed.

The court’s findings about the parties’ credibility at that stage were summarised by Moylan LJ in the appeal that followed (see below):

“18.

The judge found that “the evidence of the father was consistent on the material, core issue”, namely whether the mother had agreed to the children moving to live without her in England. His assessment of the parents was starkly contrasted. He considered that the father had given his evidence “in a straightforward manner, without evasion” and concluded that, “overall, [he] found the father’s oral and written evidence to be largely consistent on the core, material issues” (emphasis added). In contrast, he considered the mother an unreliable witness such that he “could not properly attach weight to her evidence”. These conclusions clearly formed the critical, or fundamental, foundation for his determination of the factual disputes which included that the mother had consented to the children moving to live in England. For this and other reasons, as explained in the judgment, the judge dismissed the mother’s application for a summary return order.”

Subsequently, HHJ Middleton Roy directed disclosure from the Home Office, which arrived in September 2024 and amounted to 700 pages of documentation. This documentation ultimately demonstrated that the father had comprehensively perjured himself at the first hearing.

Meantime, two ‘Wishes and Feelings’ reports were filed in April and June 2024 by Ms Demery of Cafcass, who in due course was appointed as children’s guardian. She described an unsuccessful attempt to facilitate video contact between the children and their mother in March 2024. When the mother came onto the link “the children refused to speak to her and they began to sob uncontrollably.”

The mother was granted permission to appeal out from the April decision and permission to rely on the Home Office evidence,. The father, represented by leading and junior counsel acting pro bono, opposed the admission of the new evidence and fought the appeal.

On 24 October 2024, this court (Moylan, Phillips and Lewis LJJ) admitted the fresh evidence and allowed the appeal: see Re S (Children) (New Evidence) [2024] EWCA Civ 1265. The mother did not seek to set aside the refusal to grant a summary return, and this court did not do so, praising that decision as child-focussed, but she sought the setting aside of the findings of HHJ Middleton Roy. They were set aside on the basis that the new evidence undermined the previous findings to such an extent that they could not stand. The matter was remitted and was allocated to the judge for directions and re-hearing.

In November 2024, the judge determined (against the father’s opposition) that there should be a further fact-finding hearing. He noted that the outcome might affect the mother’s ability to come to the UK to pursue her relationship with the children. He fixed a three-day hearing starting on 25 February 2025. His order records that neither parent considered it to be in the children’s best interests for them to give oral evidence at the fact-finding hearing. Directions were given for an exchange of Scott Schedules and responses by the parents, and also for the guardian to file her own schedule if she sought any additional findings. The parents filed schedules and responses but the guardian did not seek any findings of her own.

Shortly before the rehearing, the father applied for A to be allowed to give evidence. On 17 February 2025, the judge refused that Re W application on the basis that the children’s voices would be heard through the guardian. The mother applied for intermediary assistance, on the basis of a professional assessment that she suffered from ‘marked communication difficulties’. The judge also refused that application but put in place ground rules. Neither decision was challenged by way of appeal.

The parents filed Scott Schedules in advance of the second fact-finding hearing. The mother sought findings that:

For his part, the father sought findings that:

At the rehearing, the judge heard oral evidence over three days from the mother, the father, L, and the guardian. The mother gave evidence by video link from Pakistan, to which she had travelled in an unsuccessful attempt to travel on to England for the hearing. Written submissions were delivered. Judgment was reserved and was handed down on 11 March 2025.

The judge did give an account of the procedural history, from which I take these extracts:

“10.

Following that the matter was listed before me in November 2024, when I held that there needed to be this fact-finding hearing, and for a PTR in February 2025. I shall not note the directions further than to remark that:

a.

At the PTR the mother asked for an intermediary assessment. That led to a recommendation that she should have an intermediary and an application on paper followed. I declined that application, not least because she would be giving her evidence remotely and via a translator, but I held a ground-rules hearing at the beginning of the fact-finding hearing. An agreed set of ground rules were produced following the suggestions in the assessment. There has been a resolute but not infallible attempt to adhere to those rules, but I must remind myself that when considering her evidence that the mother is a vulnerable witness. Her comprehension of language, and her grasp of time, is weaker than would be considered normal.

b.

At the PTR the father made an oral application for the elder child, A, to give evidence to the court directly. He then renewed the application in writing. I declined that application. I made clear then that I do consider that it is important the children’s voices are heard but I would hear them from their Guardian.

…

11.

I heard the mother on the first day of the hearing. I will deal with the detail of the evidence when considering the matters of fact that I am to determine. I will however note that it was far from ideal having her give evidence remotely, via a translator, and with only a large pile of papers for a bundle. It had been agreed that she should have a friend with her to help her find her way through the bundle as part of the ground rules. That was ineffective. The pages should have been in a file. As a consequence, pictures of pages had to be sent to her by WhatsApp to enable cross examination to take place. I have already noted that she was a vulnerable witness. I note further that the conditions in which she gave her evidence would not have assisted her. I note yet further that she was cross-examined for longer than timetabled.

12.

I heard the father on the second and third day of the hearing. He also had the benefit of a translator though he only occasionally relied on him. Again, I will deal with the detail of his evidence as I consider the matters of fact I am to determine. I do however record that it was clear to me that he was caught in a straightforward lie: either he let the court believe wrongly at the first hearing that he was still married to the mother, or he deceived the Home Office when applying for a visa to this country that he was divorced from her. That inevitably means that I will have to remind myself that a lie on one issue does not mean that he has lied on other issues and that there are all sorts of reasons for lying, some of which might lend weight to other aspects of his case. It is appropriate that I note that his cross-examination took longer than timetabled. Further, the cross examination was forceful and took place for longer than was timetabled. Given the length and the tenor of the cross-examination it is necessary for me to consider that the father would have been tired and stressed when giving his answers.

13.

I heard from Ms Demery on the second day. From her evidence emerges the positive in this case. The children are, she tells me, delightful. B is thriving; she is a ‘live wire’. A is more introverted and thoughtful. She has been referred to CAMHS, I am told by the father, and Ms Demery agrees, she is troubled. Nonetheless given what I am to relate and the relationship between their parents, the children’s resilience is to be celebrated.

14.

I heard from L, who is the father’s second wife (a term that I do not intend to be over read for reasons set out below) on the third day of the hearing. She also had the benefit of an interpreter, whom she used only on occasions. The translator properly called to my attention the fact that Ms L was a Farsi speaker, and he was certified only as a Pashto interpreter. Given however he related that his Farsi was good, and her Pashto and English were good, we did not adjourn to await a new translator.”

This was clearly a challenging hearing. The judge was faced with two apparently plausible English-speaking witnesses in person, while the mother was at a disadvantage through her vulnerability, enforced absence, dependence on an interpreter and difficulties with documentation.

It is necessary to refer at this point to some extracts from the guardian’s evidence. They are from an agreed note of the evidence, it being a cause for considerable concern to this court that the recording system failed so that a transcript is not available.

Ms Demery is being questioned about statements made to her by the children. G is Ms Demery, SD is father’s counsel, J is the judge, and AG is mother’s counsel.

“SD – The trip to bakery after which she was beaten and locked in the bathroom – it is quite specific allegation – complex narrative?

G – Um, yes, I mean she doesn’t say why M would have beaten her for getting bread. Misdemeanour element isn’t apparent. It was a vivid picture she presented to me.

SD – Do younger children if alienated – are they able to give a long narrative about an incident or just general details?

G – Umm, I think it varies from child to child – yes, I mean they were both children, but as you can see from the reports given, they are vivid accounts.

J – I think the question being asked goes to the weight I should give these accounts – do you think I think the questions are saying – more vivid means they are more likely to be true, or can you not say?

G – I think certainly some of the accounts seem to have clear ring of truth about them – it is clear that their relationship with M was quite strained in many ways. They’ve maintained their views over a long period of time.

J- Does fact they maintained their views make more or less likely … the incidents described by the children happened?

G – I don’t know how to answer that as it could be either way. My overall impression is yes. If repeating a continued account with the same narrative – the overall impression was that the children had suffered and M has admitted some incidents between them. Weight to give to children’s account is difficult because they have not seen mother since July 2023 and they’ve been in the F’s care the whole time. The children are in this limbo and they do not know what the future holds for them.”

…………

“SD – B describes her M pulled her hair, hit her shoulder and locked her in the bathroom?

G – She does describe that.

SD – Both of the girls are believable in what they said?

G – They are, certainly – I certainly felt they had some very painful experiences and that, yes, much of their accounts were believable.

J – I just want to ask – the gap between painful experiences and these events happening. These events would be painful experiences, but… did you credit their accounts of these events?

G – Yes, I did.

SD – So you believe them?

G – I believe them to a large extent, it is incredibly difficult to know sometimes.

J – That is going to be a question for me to resolve.”

_____________

“AG – There is a huge question mark as to what these children experienced in Afghanistan – that is the primary purpose of the fact-finding hearing?

G – Yes, but children only – as I said at beginning of this evidence. The children [are] desperate not to return to Afghanistan. That has been their focus. To find out anything positive about their life beforehand was difficult. They just concentrated on the negativity of returning.

AG – All the fundamental issues on this case are closely interwoven – whether F was violent to M and whether he abandoned her in Afghanistan?

G – Yes.

AG – Whether children are reporting true allegations that M was violent to them – whether F has lied to everybody including children about M consenting to the removal. And whether this mother was abandoned in Afghanistan?

G – Yes.

AG- I suggest it is unfair to expect you to unpick this in the witness box prior to these findings having been made.

G- I think that is correct. I am struggling in a sense and need to work through what I think, and all I know is that children want to remain here and I think most of what they said has to be seen through that prism as well.”

The judgment, which runs to 21 pages, is largely devoted to the cross-allegations in the Scott Schedule. The mother’s allegations are considered at paragraphs 22-61 and 85-92, and the father’s cross-allegations are considered at 62-84. I have already indicated the substance of a number of the findings, and now extract passages that were the subject of comment during the appeal, together with the judicial responses to some of the parents’ requests for clarification.

The judge said that he found the parties’ oral evidence as being:

“46.

… of little help. Both parties are wedded to their account to the extent that what they said was of little assistance. I had no sense that either was honest with me.

47.

So, I am left with weighing and evaluating the documents and the inherent likelihoods of what has happened and balancing in all the other matters which I refer to in this judgment.”

Having found the father’s evidence about the mother’s consent “unreliable”, the judge stated:

“50.

I conclude then that the father did wrongfully remove the children from the care of the mother, on two occasions. (I see the journey to Pakistan in 2022 as fuelled by the same dynamic and working in much the same way as the removal here in 2023.) In the sense that he removed them without the mother’s consent. I do note that he did so because of fear for his own security in Afghanistan, fear for the children, as girls, in Afghanistan, and fear of leaving the girls behind. I highlight here, and will explore this more fully below, his fear was not merely a selfish fear that he would lose them, but fear for their care with their mother.”

The incomplete third sentence is perhaps best read as a final clause to the first sentence.

In relation to TMA, the judge said this:

“52.

I do not want to become involved in definitions, or a linguistic analysis of ‘transnational abandonment’. The mother, I have already found, was left in Afghanistan while the father without her consent brought the children to this country. It has been his case at times during these proceedings (as it was before me) that the plan would be that the children would come here with him and then he would help the mother to come. There is no evidence that he has taken steps to help the mother come, save for the 2022 visa to Pakistan. He knew full well that his evidence of a divorce would make it more difficult for her to come as her best chance would have been as his wife. Insofar then as he might have said her following was a possibility he would have misled her. However, I disbelieve his case as currently put on this. It was not an account that he gave in his first statement. The mother did not complain in the early stage of these proceedings that he had told her she would be coming, and he has failed to fulfil that promise. The account from the family meeting or Jirga was not for removal on that basis. The mother’s response to the picture of her child at a party in London was not ‘where is my visa?’. I find that the father did not hold out a promise to bring the mother here. It may have been something he would say from time to time as an outside hope, it may just be an invention on his part made during the progress of the litigation to try and explain why the mother might have agreed to her children leaving without her. It was not a plan that either parent thought would be likely to be achieved, and no deal was done on the basis of it.”

This evoked a request for clarification from the mother:

“The court is requested to clarify whether or not it has made a finding that the Mother is a victim of transnational abandonment namely: the Father abducted the children from her care and from their homes in Afghanistan on 5 July 2023 from their schools with the intention that the Mother would have no realistic means of coming to England to be reunited with her children or reestablish a meaningful relationship with them.”

To which the judge responded:

“I set out clearly that I did not want to engage in labels. The father brought the children here without the mother’s consent and without a promise that she would follow.”

The mother further requested clarification of whether, in addition to finding that the father had assaulted her, the judge had made the requested finding of psychological abuse. The judge responded:

“Given my finding of physical abuse I did not consider a finding of psychological abuse necessary.”

Turning to the father’s allegations, the judge first considered a covert recording (extracted from 30 or 40 made by the father) in support of his claim that the mother was emotionally abusive towards him:

“62.

The father says that the mother was emotionally abusive towards him and threatened to stab him. He relies on a threat of which I have an audio recording, the translated transcript of which sets out:

just wait, I will not let you go without [hitting you with] a knife [repeated twice]. A knife befits you [people of your sort]. I will hit you with a knife seven times when you are asleep. When I get [not clear] out of you, I will then tell you to do anything you can in the hereafter.

63.

The mother accepts that this was her and says that it was from a time when she had been locked in the parties’ bedroom, that the father had been abusing her and was telling her he would be taking the children away from her to live with L. She says that her ‘heightened emotions’ caused her to say things that are regrettable.

64.

The mother points to the fact that is a selective, short, covert, recording. It tells us nothing of what the father had said. Ms Guha cautions me against relying on covert recordings generally, saying that they may be edited and selective and that they are a form of harassment and are likely to be harming to the children.

65.

The mother is right in in her observations, and I hold Ms Guha’s caution in mind. None the less the recording does show that when the mother loses her temper, she loses it dramatically. Regardless of context, the threat that it contains is so violent that it is not possible to consider this as anything other than abusive. I have already found that the father was violent to the mother. I conclude that the parties were mutually abusive, albeit there is a difference between a physical beating and a verbal threat.”

The judge considered the father’s claims of physical and emotional abuse of the children by the mother at paragraphs 66-81. He approached these through Ms Demery’s evidence of what the children had said (it being a feature of the case, not noted by the judge, that the father himself had no direct evidence of abuse to give):

“67.

Ms Demery records in her Wishes and Feelings report and by way of a position statement (produced in relation to the issue as to whether A should give evidence) which was confirmed by her orally, a number of allegations which the children make against the mother. The allegations in the report coming from the children include (i) that she beat them and hit them on their heads, (ii) that when trying to get away from her because she was angry A fell in the toilet and cut herself on something sharp; (iii) that she fought with and threatened the father including by way of stabbing him, poisoning him (this incident was repeated and expanded upon by B on a second visit); (iv) that she threatened to tell the Taliban where he was; (v) being beaten and hit after a trip to the bakery (an account which Ms Demery described as vivid), (vi) seeing their mother returning from her sister in law’s covered in blood with a knife in her hand (this incident was repeated and expanded upon by A on a second visit); (vii) sitting on A’s back and pulling her hair.

68.

In the visit that the Guardian made in advance of me determining whether A should be allowed to give evidence A made clear to her that she wanted to give evidence to me directly. She feared that I would not understand her evidence and in particular ‘the cruelty’ we have experienced.

69.

In answer to a question from me as to what weight I should put on these allegations Ms Demery told me that some of what they have said has ‘the ring of truth’ about it, and that their accounts were ‘believable to a large extent’.

70.

The father and L each repeat what the children have said to them. The mother denies the allegations. She does accept that she would, appropriately and rarely, physically chastise the children when required.”

The judge found the injury to A’s arm (accusation ii) to have been accidental. He declined to make a finding about poisoning (part of accusation iii) or about telling the Taliban (accusation iv).

The judge said this about accusation vi:

“77.

On this issue it is important I bear in mind inherent probabilities. It is not likely that the mother stabbed someone. I do however have the evidence of the children and the text message. I do, I note, also need to factor in that the mother clearly loses her temper dramatically. I must step back and consider what weight to give to what the children have reported. I must bear in mind that they want to stay in this country, and they have been with their father as he has conducted this case and that it is being said he has alienated them. I do however consider the text message and what the children have said to Ms Demery cannot just be discarded. They outbalance the potential lack of context, the lack of evidence as to a charge, the potential unreliability of the children’s account. On a balance of probabilities assessment I do consider that the mother came back, and the children saw her, with a knife and with blood on her. I do not find that she has stabbed anyone, but I do find that the children having witnessed this, and having heard their mother talk about using a knife were frightened by what they saw.”

In regard to the general accusation that the mother had physically and emotionally abused the children:

“80.

As to the more generalised allegations that the children were beaten by the mother, the mother denies that she did anything more than administer appropriate physical chastisement. She points out to me that the approach to physical chastisement is different in Afghanistan to this country. She does not accept that she did anything more than administer a tap to the children. On this point I again have to confront the issues of what weight I should attach to the children’s view. I will not repeat the points made above on that issue. I do repeat what I have already set out that Ms Demery considers the some of what the children have said has a ring of truth. I also bear in mind the mother’s tendency to lose her temper – including in relation to the children, and her repeated threats in relation to use of a knife, and further threats I shall detail below. I also note my conclusion in relation to the ‘stabbing’ incident. I do note the consistent account the children give of their allegations and that, for the most part, they have not become more florid the longer the children have been with the father. This could be the consequence of good ‘coaching’ but may also indicate that the accounts reflect what actually happened. I do on balance find that the mother has lost her temper with the children and administered physical rebukes of them which are not to do with chastisement but her own loss of control. I find the children are telling the truth when they say she would beat them and hit them on the head, including on an occasion after a trip to the bakery and indeed that she would on occasions when she lost her temper, pull their hair.

81.

I do therefore find that the mother has emotionally and physically abused the children as I have described above. I do want to note that this was in circumstances where there was a marriage that was not working, and was violent, and the father had taken another wife, and was threatening to take the children, and the day to day living arrangements were unquestionably very difficult.”

In considering the children’s accounts of violence on the part of their mother, the judge did not reflect on their silence in respect of the father’s assault on her.

In relation to threats by the mother to L, the judge quoted the mother’s extremely abusive remarks (which had been recorded) and continued:

“83.

The mother explains that this was her only time of talking to L and occurred when L rang to speak to the father shortly after she first heard of his second marriage and understanding that he would want to raise his children with her.

84.

I am content to accept that explanation, but it does not lead to any other conclusion than that the mother has a violent temper and that she has made violent threats.”

Finally, the judge dealt with the issue of alienation. He declined to make a positive finding of alienating behaviours on the behalf of the father or L, but found that the litigation will have impacted upon the children’s view of their mother, and that neither the father nor L had a real appreciation of the importance of the children having a relationship with their mother.

“87.

The father was clear that he had tried to get the children to engage with the mother, but they refuse. Though I need to check myself when believing anything he says I am inclined to believe that he is telling the truth in this regard. He is able to see that it is in his interest, so far as this case is concerned, to not only demonstrate that he is trying but also to bring about some contact.

88.

L, I felt gave lip service to encouraging the children to engage with their mother but at heart was entirely sympathetic to their refusal. The mother, L thinks, is a terrible person who has abused her and the children. She could not see any advantage to the children in having a relationship with her.

89.

L was not able to identify any positive benefit of the children having a relationship with their mother. The father was able to make the obvious point that she was their mother, but I formed the impression that he felt contact was important because the court wanted it to happen.

90.

Other than the fact that the children were resisting contact with their mother, which must be seen in the light of her behaviour to them, there was no evidence from which I could draw a positive finding that the father was engaged deliberately in trying to turn them against the mother. That however is rather to miss the obvious point. The children’s interests and the father’s and L’s interests align: they do not want to go back to Afghanistan. So long as that threat remains, and these proceedings embody that threat, the children are likely to believe it is necessary to reinforce the case that the mother is ‘bad’. Hence there was an application for A to give evidence. The endeavour to show that the mother is ‘bad’ is common to both the father and the children. A better parent might have been able to stand back from the court fight enough to save the children from becoming sucked in, but the father would need to show unusual, if not exceptional, qualities to have achieved that insight into the children’s best interests.

91.

My finding on this allegation of alienation is not merely one word. It is that there is no conscious attempt to turn the children against the mother, but there is a polarising effect of the litigation which will result in these circumstances in the children holding to a negative view of their mother. The children have not been sheltered from this litigation. Such sheltering would have been to their advantage, but it would have been unusual, if not exceptional.

92.

I do further find that there is no real appreciation by the father or L of the importance to the girls of having a relationship with their mother.”

The judge’s consequent order of 27 March 2025 dealt with a number of issues:

Further directions were duly given by the judge, vacating the hearings in July and October.

The mother advances these grounds with permission granted by Moylan LJ on 27 June 2025:

We received full and effective submissions on behalf of the mother from Ms Guha KC, leading Ms Ramadhan. Their central argument is that the judge, having correctly identified the cornerstone of the case (removal without consent) did not carry it through to his overall analysis. It was of cardinal importance to understand the seriousness of the abuse of the mother and the children perpetrated by the father and L, and it was inappropriate for the judge to dilute their behaviour to any degree. This was a paradigm example of post-separation abuse, and the characterisation of the abuse as mutual was wholly inapt, and demonstrated a failure to appreciate the pervasive power imbalance between the parents. The refusal to engage with the mother’s case on TMA and make an express finding is demonstrative of the lack of respect afforded to her Article 6 and 8 ECHR rights within the judgment. The finding about the knife and blood was internally inconsistent and untenable. It was abjectly inadequate to decline to make a finding of alienating behaviour in the face of overwhelming evidence: two abductions, TMA, violence, covert recording, forgery, repeated perjury, making false allegations against the mother, and replacing her as the children’s mother with L. The judge failed to ask himself how such an extreme rejection of the mother had come about. He should have found that the only rational conclusion was that the children had been the victim of a determined campaign by the father and L, lasting for years, to remove the mother from their lives.

Further, Ms Guha argues that the finding that the mother had physically abused the children was procedurally unfair. Only one specific, though undated, instance was found (hitting on the head after a trip to a bakery), but neither that, nor the accusation of hair-pulling, had been alleged by the father or the guardian. More fundamentally, those accusations had not, as the father and the guardian now accept, been put to the mother when she gave evidence. Further, the judge impermissibly relied on the guardian’s observation about the children’s accounts having a “a ring of truth”, without going on to refer to her acceptance that much must depend on the court’s overall findings.

For the father, Mr Rob George KC, leading trial counsel Ms Sarah Dines, reminded us of the well-known statements about the restraint that this court must exercise when reviewing findings of fact and evaluative judgements.

In relation to ground 1, he submitted that the judge was proactively immersed in the detail of the case and gave a well-structured decision. He recognised that the issues were interrelated, and he properly declined to deal with every detail of the evidence.

As to ground 2, the judge made a clear finding of removal without consent. In the skeleton argument, Ms Dines submitted that he analysed the father’s reasons for bringing the children to the UK. His findings were not a dilution of the import of abduction. He rightly looked at all of the evidence and came to the conclusion that he accepted the father’s explanations. The removal of the children did not need to be viewed in the stark terms advanced by the mother. The judge was entitled to conclude as he did that the father had advanced compelling reasons for his decision to remove the children.

Mr George added that the judge decided the disputed facts and he was in any case entitled to choose what facts he found and how he expressed himself. He did not excuse the father’s conduct but made a dispassionate set of findings without recourse to colourful language. A fuller characterisation of the nature and significance of the findings can properly be made at the welfare stage.

Regarding TMA (ground 3), Mr George argued that the judge was entitled to reject labelling. The present case did not fall within the definition contained within PD12J because the mother did not have rights to assert and the father did not have rights to confer.

In relation to the children’s accounts (ground 4), the judge was properly cautious about accepting the guardian’s view and he made mixed findings.

On alienation (ground 5), Mr George referred to the guidance recently issued by the Family Justice Council. This identifies alienation with reference to three elements, expressed as questions:

As to the outcome, Mr George submitted that, as so much of the appeal turned on credibility and criticism of the guardian, it would not be right for this court to make any findings of its own, or to preserve only the findings that the mother likes. If the appeal were to be allowed, he argued for a second complete rehearing.

For the guardian, Ms Siobhan Kelly, who did not appear at trial, submitted that the judgment was sufficiently reasoned and that it provides a reasonable factual matrix for making further decisions as to the children’s future. The finding about abduction was nuanced, but not to an extent that was perverse or irrational. Likewise, given the extent of his other findings, the judge was not wrong to specifically consider his findings in terms of TMA, or of alienation. On ground 4, Ms Kelly pointed out that the judge’s finding about the mother’s behaviour towards the children was not solely based on the guardian’s recordings and professional opinion. Like Mr George, Ms Kelly submitted that if the appeal were allowed, there should be no cherry-picking of the judge’s findings.

There are three matters that call for comment: the purpose of fact-finding, child abduction and kidnapping, and transnational marriage abandonment.

Fact-finding is an integral part of our family justice system. Whether in private law cases within the family (such as this one) or public law cases involving the state, the principle is that the court’s powers can only be exercised on the basis of proven facts. As circumstances are so varied and facts so infinite, the court has to take care to identify the issues that it needs to decide and the facts that are relevant to them. Having fairly considered the evidence and the arguments, it then gives its decision, supported by adequate reasons. All of these matters call for an exercise of judgement: no two cases are identical, and no two judges will approach matters in exactly the same way.

In most cases about children, facts are found and welfare decisions are made at a single hearing. In other cases, the factual inquiry is so complex or significant that there has to be a split hearing, but the requirements of fact-finding and reasoning are the same in each case. It is not uncommon for one judge to have to make welfare decisions on the basis of facts found by another judge, either in the same case if judicial continuity has not been achieved, or in another case involving one or more of the same individuals.

The purpose of fact-finding in a case about children is therefore to provide a fair and sufficient factual foundation for the court’s welfare decisions. In a public law case, the facts as found will feed into the preliminary question of whether the threshold for intervention has been crossed, and they will no doubt also have wider significance for the later welfare analysis. In either case, the fact-finding process should encapsulate the court’s conclusions about past events, allowing it to look to the future when addressing welfare.

For these reasons, I would reject the submission that a fuller description of the nature and significance of findings of fact can deferred to the welfare stage. A core purpose of fact-finding, particularly where there is a split hearing, is to package the court’s findings about the past as a foundation for its decisions about the future. The findings are a foundation, not a straitjacket, but the court is not engaged in a process of continuous revision or elucidation. In the present case, the judge rightly did not suggest that he was making provisional or incomplete findings which he would later revisit.

In R v Kayani [2011] EWCA Crim 2871; [2012] 1 WLR 1927 the Court of Appeal (Criminal Division) (Lord Judge LCJ, McFarlane LJ and Royce J) considered a case of child abduction. At the outset of the judgment, the court said this:

“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.

…

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.”

The court accordingly recommended that the maximum sentence for child abduction should be increased. In 2014, the Law Commission recommended that the maximum sentence should be increased to 14 years. That recommendation has not yet been put into law.

In considering the sentences in that case, the court further said this:

“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. …”

The present case is not of course the subject of criminal proceedings in this jurisdiction, but I refer to these matters because they emphasise that prolonged child abduction is not only a criminal offence but also a pernicious form of child abuse.

Child abduction of this kind may also be an extreme form of domestic abuse. Domestic abuse is defined in the Domestic Abuse Act 2021 as consisting of physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, and psychological, emotional or other abuse. PD12J (titled ‘Domestic Abuse and Harm’) applies this definition to family proceedings at paragraph 2A. Depending on the facts, abduction may amount to controlling behaviour, and it is clearly capable of amounting to psychological, emotional or other abuse.

Transnational marriage abandonment is itself a form of domestic abuse and harm to children.

PD12J paragraph 2B states that:

Paragraph 3 defines ‘abandonment’:

“Abandonment” refers to the practice whereby a husband, in England and Wales, deliberately abandons or “strands” his foreign national wife abroad, usually without financial resources, in order to prevent her from asserting matrimonial and/or residence rights in England and Wales. It may involve children who are either abandoned with, or separated from, their mother.

The significance of TMA in a case of child abduction is that it compounds the abduction by severing the child from the left-behind parent, which is often the perpetrator’s intention. In an appropriate case, the court should, as a matter of common justice to the left-behind parent, recognise TMA for what it is: an extreme form of domestic abuse and harm towards them and the children.

Re A (Children) [2019] EWCA Civ 74; [2019] 1 FLR 1175 was cited to the judge. It was an appeal by a mother, who had been stranded in Pakistan after the family had spent time there, with the father removing her passport and returning to England with the children. The judge in that case declined to make a finding that the mother had been stranded on the basis that she had remedies available to her and had managed to get back to England by the time of the hearing.

The appeal was allowed. At paragraph 70-71 of his leading judgment, Moylan LJ stated that:

“70.

… It is clear from the Practice Direction that the words abandonment and stranding are not terms of art and that they are not intended to be applied in a formulaic manner. This is because there are a number of ways in which a spouse might be said to have been abandoned or stranded abroad or in which the other spouse might have sought to achieve this. I would agree with Mr Gration when he submitted that cases can include many differing elements which militates against their being placed in distinct categories.

71.

The core feature of the concept of stranding or abandonment is the exploitation or the attempted exploitation by one spouse of the other’s vulnerability or weakness to seek to ensure that they are not able to come to or return to the UK. As Peter Jackson J (as he then was) said in ZM v AM (Stranded Spouse) [2014] EWHC 2110 (Fam), [2014] Fam Law 1402, at para [1], it can be the ‘opportunity’ the secure immigration status of one spouse and the insecure immigration status of the other gives ‘the former to exploit the latter’s weakness’. However, as PD 12J makes clear, it is based more generally on ‘controlling, coercive or threatening behaviour, violence or abuse’.”

And he continued at paragraph 78:

“… the manner in which a spouse can act in order to seek to prevent the other spouse returning to the UK can take many forms. In my view, it is not helpful to seek to assess what has happened in any case by reference to any notional concept of the ‘classic’ case. As set out above, stranding is a broad concept and can include any action taken by a spouse which puts obstacles in the way of the other spouse being able to return to the UK. In some respects, it matters not whether the attempt is successful or not. Even if not successful it could still support a conclusion of controlling or coercive behaviour as referred to in PD 12J.”

These observations were made before PD12J was updated to harmonise with the Domestic Abuse Act 2021, but the operative provisions of the current practice direction are unchanged as regards TMA.

Accordingly, the father’s submission to us – that his actions did not amount to TMA because the mother had no rights to assert and he (being dependent upon L for his presence here) had no rights to bestow – is mere sophistry, and I reject it.

The judge was clearly right in his central finding that the mother had not consented to the children coming to the UK in July 2023, and that the father had lied and forged documents in order to bring them here. Once the Home Office file came to light, the evidence for those findings was overwhelming.

The father’s assertion of consent was, as Arnold LJ said during the hearing, the central pillar of his case and, once it was demolished, everything had to be viewed in a different light. The court was faced with a parent who had as recently as April 2024 successfully hoodwinked the High Court by perjury and forgery, and who would happily have enjoyed the fruits of the injustice that he had brought about by abducting the children and covering his tracks. Forced into a rehearing, he and L then tried to brazen it out for a second time.

On the basis of the judge’s own findings this was therefore a blatant case of child abduction, exacerbated by transnational marriage abandonment, relationship severance, and disgraceful lies. This note should have resonated throughout his analysis, but it did not in a number of respects.

First, the judge did not take stock of what his finding about consent told him about the characters and credibility of the father and of L. He approached the allegations against the mother and the issue of the alienation of the children as if the parents’ perspectives were still entitled to equal respect. His statement that both parties were so wedded to their account that their oral evidence was of little assistance, and that he had no sense that either was honest with him, cannot be squared with the fact that the mother had twice told the court the truth about consent in the face of everything the father had thrown at her. The partial extenuation of the father’s motives at paragraph 50 might have been in point if the father had had a plan, which had somehow misfired, that the mother was to accompany or follow, or if he had admitted the abduction and claimed those motives for himself. As it was, speculation about any unselfish aspects of the father’s mindset was out of place.

Next, in his treatment of the issue of alienation, the judge followed a similar course. At paragraphs 90-91, he focused narrowly on whether there was any evidence from which he could draw a positive finding that the father was deliberately engaged in trying to turn the children against their mother, and he found there was not. He then made what he called “the obvious point” that the children’s interests aligned with those of the father, that a better parent might have shown more insight, and that the litigation had had a polarising effect. That was, with respect, a pale reflection of what had occurred. Long before there were any proceedings, the father and L had recruited the children to clandestinely abandon their mother, their wider families, their home and their country. They had then executed a ruthless and hitherto successful plan to leave the mother defenceless. Despite this, the judge approached the matter as if this was a routine allegation of alienation in a domestic setting, when in reality the abduction, the stranding and the dishonesty went hand in hand with the alienation of these children from their mother. I accept Ms Guha’s submission that there was no reasonable alternative to a finding that there had been a determined campaign by the father and L, lasting for years, to remove the mother from the children’s lives. I also note her submission about the finding at paragraph 87 that the father had then to tried to get the children to engage with their mother. The judge said he found the oral evidence on this topic more helpful and was inclined to believe that the father was telling the truth in this regard, as it would be in his interests to try to bring about some contact. That observation begs the question about the father’s underlying motivation, but it is better that I say no more about it, as it closely concerns future arrangements.

Third, there was no good reason not to make a straightforward finding of abandonment. It is not a question of labels. As stated in Re A,the core feature of the concept of stranding or abandonment is the exploitation by one spouse of the other’s vulnerability or weakness to seek to ensure that they are not able to come to or return to the UK.

If the judge had an objection to naming TMA, he could have given it. What mattered, for the reasons given above, was that the judgment should sufficiently reflect the abandonment. A finding that the father brought the children here without the mother’s consent and “without a promise that she would follow” does not address the mother’s complaint that the father had made sure that she could not follow. That is the essence of a finding of TMA and the mother was in justice entitled to it. Further, the absence of such a finding could only prejudice her efforts to retrieve the situation that the father had created by making it harder for her to obtain a visa to come to this country to see her children, or at least to participate in the proceedings with less disadvantage.

Lastly, the findings that the mother would beat the children and hit them on the head, including on an occasion after a trip to the bakery, and would on occasions when she lost her temper, pull their hair, are assailable on a number of scores. The children’s statements had to be put into context. There was no genuine contemporaneous evidence that they were unhappy in the mother’s care, and the father left them with her at will to pursue his career and double life. The father had never claimed to have seen such behaviour himself. The allegations that he did make were not accepted by the judge. There was no wider supporting evidence. The children were living in an unfamiliar country, totally dependent on adults who were thoroughly hostile to their mother and who had stopped at nothing to bring them and keep them here. The matters found by the judge were generalised, undated and not squarely put to the mother when she gave evidence.

The judge was also in my view wrong to engage in any consideration of what the guardian, even one as experienced as Ms Demery, might think about the children’s credibility. He rightly reminded himself that the finding of facts was his province, but he twice referred at critical points in his analysis to the “ring of truth” remark that had been extracted in cross-examination, without reference to Ms Demery’s later prudent disclaimer. The role of the guardian was to bring the children’s voice into the courtroom, not to advise the court whether they were telling the truth.

The further finding about a knife and blood at paragraph 77 is also perplexing. The judge found that the lack of context and supporting evidence and the potential unreliability of the children’s account were outbalanced by what the children had said and the mother’s text message about knives. He found that:

“On a balance of probabilities assessment I do consider that the mother came back, and the children saw her, with a knife and with blood on her. I do not find that she has stabbed anyone, but I do find that the children having witnessed this, and having heard their mother talk about using a knife were frightened by what they saw.”

If the mother had not stabbed someone, where had the blood came from? It is also not clear how and when it is said that the children became frightened by the mother speaking about knives. As it stands, the finding is too vague to be reliable.

In making these findings the judge was clearly swayed by the mother’s intemperate statements to the father and to L. However, any spouse and parent in this mother’s position would feel, and likely express, strong indignation at the way they had been treated, and the judge should therefore have assessed these emotional outbursts with considerably more caution. The mother’s reaction when first exposed to L on the telephone were unlikely to be a sure guide to her treatment of her children, and her venomous message to the father came hard on the heels of his abducting them and their refusal to speak to her. Likewise, the earlier covert recording of the mother’s abuse of the father from inside a locked bedroom after learning of his sustained deception could scarcely tell the court much about her normal behaviour. The judge noted that he was being given the father’s selection from multiple covert recordings, but he could not know how representative this recording actually was, and its deployment in support of a finding about the mother’s treatment of the children was more than that evidence could reasonably bear.

Taking these matters together, I regret that the judge’s findings do not provide a fair and sufficient factual foundation for the court’s welfare decisions. I would therefore allow the appeal and remit the proceedings so that another judge of the Family Division can give directions leading to a welfare hearing.

As to the findings on which the welfare assessment should rest:

I agree.

I also agree.