A (Children)

Transnational marriage abandonment is a broad concept rather than a fixed category or term of art. Its core feature is one spouse’s exploitation, or attempted exploitation, of the other’s vulnerability to obstruct that person’s return to the United Kingdom. The conduct can constitute stranding even where the affected spouse could take remedial steps or ultimately overcome the obstacle.

An appellate court should respect the trial judge’s advantage in assessing witnesses. It may nevertheless set aside factual findings where a conclusion is unsupported by, or inconsistent with, the judge’s own findings. Where that conclusion concerns a central issue interconnected with the remaining factual determinations, the whole evidential assessment may require rehearing.

The mother appealed against Keehan J’s fact-finding judgment in private law proceedings concerning four children. The findings were intended to provide the evidential platform for deciding future child arrangements and for understanding the children’s extreme hostility towards their mother.

The mother alleged that the father had stranded her in Pakistan, separated her from the children and alienated them. The father alleged that she had ill-treated and abandoned the children. The judge rejected the allegation of stranding despite finding that the father had retained the mother’s passport. He did not determine adequately whether the mother had abandoned the children or the circumstances in which the father returned to England with them.

The central question was whether those findings provided a reliable basis for determining whether the children’s rejection of their mother rested on a true account of their experiences.

1. Permission to appeal was granted and the appeal was unanimously allowed. The fact-finding judgment was set aside and the matter was ordered to be reheard before a judge nominated by the President of the Family Division.

2. Paragraph 3 of Practice Direction 12J showed that abandonment and stranding were neither terms of art nor concepts to be applied formulaically. Their core feature was the exploitation or attempted exploitation of one spouse’s vulnerability by the other, with the object of preventing or obstructing a journey to or return to the United Kingdom. The conduct could take many forms. Comparison with a notional “classic” stranded spouse was therefore unhelpful.

3. The trial judge’s conclusion that the mother had not been stranded was unsupported by, and inconsistent with, his finding that the father had retained her passport. Retaining the passport impeded her return before her visa expired. Her possible ability to obtain a replacement passport or pursue another remedy did not negate the prior obstructive act. Nor was it essential that an attempt to strand a spouse should succeed; an unsuccessful attempt could still evidence controlling or coercive behaviour.

4. The Court of Appeal recognised that it should interfere with factual findings only when compelled to do so and that the trial judge was best placed to assess the witnesses. Nevertheless, the defective determination of stranding could not be severed from the remaining findings. All parties accepted that stranding was a central issue which overlapped with the father’s credibility, the alleged abandonment, the circumstances in which the children left Pakistan and the accuracy of the narrative underlying their hostility.

5. A rehearing was independently required because the judgment had not sufficiently determined whether the mother abandoned the children or why the father and children returned to England without her. The unexplained development of the father’s allegations, an apparent inconsistency concerning whether the mother lived at a shelter, and questions about the provenance of a crucial video also required consideration. The rehearing was to proceed on a clean sheet, without the Court of Appeal determining the ultimate truth of either parent’s allegations.

1. Court of Appeal (Civil Division): In [2019] EWCA Civ 74, permission to appeal was granted, the mother’s appeal was allowed, the fact-finding judgment was set aside and a rehearing was ordered.

2. High Court of Justice, Family Division: On 30 July 2018 Keehan J delivered a fact-finding judgment in private law children proceedings. He rejected the mother’s allegation that the father had stranded her in Pakistan and made findings substantially favourable to the father. No neutral citation is stated.