S (Children: Transnational Marriage Abandonment)

Factual and Procedural Background

This appeal arises from findings made by Mr Justice Trowell on 11 March 2025 following a four-day fact-finding hearing in the Family Division of the High Court. The case concerns an Afghan family where the father removed the children from Afghanistan to the United Kingdom on 5 July 2023 without the mother's consent. The father and children currently reside in the UK with the father's second wife, while the mother remains in Afghanistan, unable to enter the UK and without contact with the children despite court orders. The father’s account that the mother consented to the removal was rejected by the judge, who also found the father assaulted the mother prior to removal. The mother appeals findings that declined to classify the case as transnational marriage abandonment (TMA), declined to find alienating behaviour by the father and his second wife, and upheld findings that the mother abused the children, although not to the extent alleged by the father. The appeal is opposed by the father and the children’s guardian.

The family history includes the parents’ marriage in 2009 in Kabul, the birth of two daughters, and the father's relationship with his second wife, L, who lives in England. The father had made false applications and produced forged documents relating to his marital status and consent for the children’s relocation. The mother was unaware of these developments until 2020. The father obtained leave to remain in the UK in 2021 and subsequently applied for visas for the children without informing the mother. The children were first removed to Pakistan in 2022 without the mother’s consent and later to the UK in 2023, also without consent. The mother has not seen the children since their removal in 2023, and the children have refused contact with her since arriving in England.

Procedurally, the mother initially applied for summary return of the children and for them to be made wards of court in November 2023. The application was dismissed by HHJ Middleton Roy in April 2024 on the basis that the mother consented to the removal, a finding later undermined by fresh Home Office evidence revealing the father's perjury and forgery. The appeal court admitted this evidence and remitted the matter for further fact-finding. A second fact-finding hearing was held in February-March 2025, where evidence was taken from the parents, L, and the guardian. The judge made detailed findings on the contested issues and delivered judgment on 11 March 2025.

Legal Issues Presented

1. Whether the mother consented to the removal of the children from Afghanistan to the UK.
2. Whether the father and his second wife engaged in transnational marriage abandonment (TMA) by stranding the mother abroad and preventing her from joining the children in the UK.
3. Whether the father and second wife perpetrated alienating behaviour towards the children to exclude the mother from their lives.
4. Whether the mother physically and emotionally abused the children.
5. Whether the father's conduct in removing the children without consent was excusable or justified.
6. Whether the judge’s fact-finding and reasoning were adequate and procedurally fair.

Arguments of the Parties

Appellant's Arguments

• The judge failed to adequately reason his evaluation of TMA, abuse allegations against the mother, and alienation allegations against the father and second wife.
• The judge’s justification of the father's abduction was perverse and irrational.
• The judge erred by refusing to make a clear finding of TMA and failed to analyze the consequences of the father's actions in preventing the mother from joining the children.
• The judge’s findings that the mother abused the children were flawed and procedurally unfair, relying on unpleaded and untested allegations.
• The judge wrongly found no alienating behaviour by the father and second wife despite overwhelming evidence of a sustained campaign to exclude the mother.
• The appeal should uphold findings of abduction and assault by the father, find TMA and alienation, set aside findings of maternal abuse, and remit for welfare hearing by a different judge.

Respondent Father's Arguments

• The judge provided a well-structured and detailed decision and was immersed in the case’s complexities.
• The judge correctly found removal without consent but reasonably accepted the father's explanations and reasons for removal, including fears for security and children’s welfare.
• The judge was entitled to reject labelling the case as TMA based on the lack of rights to assert or confer under PD12J.
• The judge was appropriately cautious about the children’s accounts and made mixed findings regarding abuse allegations.
• The judge correctly applied Family Justice Council guidance on alienation, finding no deliberate manipulation by the father or second wife.
• The appeal court should not disturb fact findings or make selective findings favorable to the mother; if allowed, a full rehearing is appropriate.

Guardian's Arguments

• The judgment was sufficiently reasoned and provides a reasonable factual basis for future welfare decisions.
• The finding of abduction was nuanced but not perverse or irrational.
• The judge was not wrong to consider the issues of TMA and alienation in light of other findings.
• The findings on maternal behaviour were not solely based on the guardian’s evidence.
• Any allowance of appeal should not result in selective acceptance of findings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully reviewed the extensive factual matrix, including the parents' evidence, forged documents, covert recordings, and the guardian’s reports. It accepted the judge’s uncontested findings that the father removed the children twice without the mother’s consent, assaulted the mother, and engaged in deception including forgery and perjury. The court found that the judge’s partial extenuation of the father’s motives was misplaced as there was no credible evidence of a plan for the mother to follow the children to the UK.

The court emphasized that prolonged child abduction is a severe form of abuse and that transnational marriage abandonment compounds the harm by preventing the mother from reuniting with her children. It rejected the father's argument that TMA did not apply due to lack of rights to assert or confer, characterizing this as sophistry.

The court criticized the judge’s failure to adequately reflect the implications of the father’s conduct on credibility assessments and his insufficient engagement with the mother’s claims of TMA and alienation. It found that the judge’s approach to alienation was too narrow, ignoring the broader context of a sustained campaign by the father and second wife to exclude the mother from the children’s lives.

Regarding the findings of maternal abuse, the court found procedural unfairness. The allegations were generalised, undated, not put to the mother in evidence, and based largely on children’s accounts obtained in difficult circumstances and influenced by the father and second wife’s hostility. The court held that the judge improperly relied on the guardian’s “ring of truth” comment without sufficient qualification and that the finding about the mother’s alleged stabbing incident was vague and unreliable.

Overall, the court concluded that the judge’s findings did not provide a fair and sufficient factual foundation for welfare decisions and that the appeal should be allowed with the matter remitted for further welfare hearings.

Holding and Implications

The court ALLOWED the appeal.

The court upheld the unappealed findings of wrongful removal, assault, and forgery by the father. It made a clear finding of transnational marriage abandonment, amplifying the judge’s limited conclusions. It set aside the findings that the mother abused the children and the vague finding relating to the knife and blood incident. It also amplified the findings on alienation to reflect the sustained campaign to exclude the mother.

The case was remitted to the Family Division for welfare decisions to be made by a different judge, with directions to ensure procedural fairness and proper pleading of issues. No new precedent was established beyond clarifying the application of TMA and the importance of rigorous fact-finding in complex family cases involving child abduction and domestic abuse.