S (Children): The Court of Appeal’s Directive to Identify Transnational Marriage Abandonment as Domestic Abuse

1. Introduction

The decision in S (Children: Transnational Marriage Abandonment) ([2025] EWCA Civ 1058) marks the latest and most emphatic appellate intervention in a turbulent piece of private-law, child abduction litigation. The parties are an Afghan mother (“M”), an Afghan father (“F”) now residing in England, his second wife (“L”), and two daughters, A (14) and B (9).

The proceedings began after F secretly removed the children to England in July 2023. A first High Court judge dismissed M’s return application, accepting F’s case that she had consented. When later Home Office disclosure revealed multiple forgeries and lies by F, the Court of Appeal set aside those findings and ordered a re-hearing before Mr Justice Trowell. At that rehearing the judge:

Rejected F’s “consent” defence and confirmed two wrongful removals and an assault on M;
But refused to find (a) transnational marriage abandonment (“TMA”) or (b) deliberate parental alienation; and
Found, instead, that M had physically and emotionally abused the children.

M appealed again on grounds that the judge’s reasons were inadequate and procedurally unfair, and that he misunderstood the nature of TMA and alienation. The Court of Appeal (Arnold LJ, Jackson LJ giving the leading judgment, Falk LJ) allowed the appeal in full, substituted findings of TMA and alienation, set aside the abuse findings against M, and remitted the welfare stage to a new High Court judge.

2. Summary of the Judgment

The central factual finding—F abducted the children twice without M’s consent—was upheld.
The Court of Appeal ruled that:
- Transnational marriage abandonment is not a “label” but a necessary finding of domestic abuse where the factual elements are present.
- Prolonged child abduction + TMA + systemic deception inevitably amount to parental alienation.
- The High Court’s findings that M abused the children were procedurally unfair: key allegations were (a) unpleaded, (b) never put to her in cross-examination, and (c) derived largely from children living in a highly contaminated emotional environment.
The Court preserved undisputed findings (forgeries, assault, Jirga, visa deceits) and ordered a fresh welfare hearing before a different judge, with directions to consider any strictly necessary further fact-finding.

3. Analysis

3.1 Precedents Cited and Their Influence

Re A (Children) [2019] EWCA Civ 74
Clarified that “stranding/abandonment” is a broad, fact-specific concept based on exploitation of a spouse’s vulnerability. Jackson LJ deployed those passages to demonstrate why “TMA” had to be recognised on the facts of this case.
PD 12J (Domestic Abuse & Harm)
Expressly lists “transnational marriage abandonment” within domestic abuse. The Court of Appeal relied on this to reject F’s submission that TMA only arises when the abandoning spouse has immigration power over the victim.
R v Kayani & Solliman [2011] EWCA Crim 2871
Cited for the proposition that prolonged child abduction is “akin to kidnapping” and an “offence of unspeakable cruelty”. The court used Kayani to frame abduction itself as child abuse and to underscore the gravity of F’s misconduct.
ZM v AM (Stranded Spouse) [2014] EWHC 2110 (Fam)
Family Justice Council (2025) Guidance on Child Resistance/Refusal & Alienation

3.2 Legal Reasoning

Fact-Finding Purpose Re-stated. The appellate court reiterated that findings must lay a stable factual foundation for future welfare decisions; they cannot be deferred or diluted.
TMA Recognition Mandatory. It is a matter of justice to the left-behind parent and a necessary descriptor of the abuse suffered. The High Court’s refusal to “engage in labels” left the factual matrix incomplete and risked prejudicing M’s immigration efforts.
Credibility Calibration. Once F’s consent narrative collapsed under documentary falsehoods, any “equivalence” between the parents’ credibility fell away. The judge’s approach—treating both as equally unreliable—was therefore irrational.
Alienation Analysis. The Court held that a deliberate campaign need not be overtly documented; the cumulative effect of abduction, abandonment, forgery and sustained denigration sufficed.
Procedural Fairness. Findings of maternal abuse breached basic fairness where:
- Incidents were not pleaded in the Scott Schedule;
- Their specifics were never put to M in cross-examination;
- The judge overly relied on the guardian’s “ring of truth” comment, contrary to the principle that assessing truth is the judge’s exclusive task.

3.3 Impact on Future Cases

Explicit TMA Findings. Judges must expressly categorise abandonment where the elements are present. Avoiding the term will be appealable error.
Abduction is Domestic Abuse. Kayani’s criminal-law dicta are imported into family law reasoning: prolonged abduction will be treated as severe domestic and child abuse.
Alienation Inferences. Where a parent engineers separation overseas, courts may infer alienation without needing “text-book” manipulation evidence.
Procedural Discipline in Fact-Finding. Unpleaded allegations or matters not put in cross-examination cannot be found proved; guardians must voice the child’s perspective, not pronounce on credibility.
Immigration Ramifications. A formal TMA finding strengthens a stranded parent’s visa prospects; practitioners should plead for it where appropriate.

4. Complex Concepts Simplified

Transnational Marriage Abandonment (TMA): A form of domestic abuse where one spouse deliberately leaves the other in a foreign country, often confiscating documents or withholding immigration sponsorship, blocking any realistic return or reunion.
Parental Alienation: When a child’s unjustified hostility toward a parent results from the other parent’s actions—ranging from subtle denigration to overt manipulation. The new FJC guidance breaks it into three questions: (1) child resistance; (2) link to the favoured parent’s conduct; (3) evidence of manipulation.
Fact-Finding Hearing: A trial-style hearing in family proceedings limited to establishing disputed past events. Its outcome forms the factual springboard for the later welfare (best-interests) stage.
Scott Schedule: A table identifying each party’s specific allegations, the other’s response, and the judge’s findings—designed to keep fact-finding focused and fair.
PD 12J: A Practice Direction to the Family Procedure Rules dealing with how courts must handle allegations of domestic abuse and child harm.

5. Conclusion

The Court of Appeal has laid down a forceful message: where a parent engineers the cross-border removal of children and the stranding of the other parent, the family courts must name and analyse that conduct as transnational marriage abandonment—a serious species of domestic abuse intertwined with child abduction and parental alienation. Judges cannot minimise abduction by speculative references to “good motives,” nor can they elevate unparticularised child statements into findings against the left-behind parent without strict procedural safeguards.

In practice, S (Children) will:

Equip practitioners with appellate authority to insist on TMA findings;
Remind courts that child abduction is intrinsically abusive and demands robust scrutiny of the abducting parent’s wider behaviour;
Re-affirm that fairness in fact-finding—pleading, disclosure, cross-examination, reasoned analysis—is non-negotiable.

Beyond its immediate effect on these two young girls, the decision recalibrates the English family court’s approach to cross-border deception cases, ensuring that future victims of TMA receive the legal recognition—and the practical remedies—previously at risk of elision.