J, K, and L (Children) (Transnational Abandonment)

In findings-of-fact proceedings, the burden remains on the party making each allegation, and the standard is the balance of probabilities. The court must assess the evidence as a whole, having regard to context and inherent probabilities, while avoiding speculation and compartmentalised evaluation. Failure to prove an allegation does not, without more, establish that it was false.

Transnational abandonment is a broad, non-formulaic concept. It may include conduct placing obstacles in the way of a spouse or children returning to the United Kingdom. Covert recordings made and selectively disclosed by one party require considerable caution and may themselves form part of controlling behaviour where used to monitor, subordinate or gather material for future use.

The mother sought findings that the father had subjected her and the children to domestic abuse, controlling behaviour and transnational abandonment. The family had travelled from England to Pakistan in March 2019. The father returned to England alone, while the mother and children remained in Pakistan. The mother later returned to England without the children and issued wardship proceedings. The children were returned pursuant to court order.

The father denied the allegations and alleged that the mother had been violent, coercive and controlling. The hearing was a fresh fact-finding hearing following abandoned proceedings before a different judge. The central issues were whether the mother and children had been deliberately stranded in Pakistan, whether the father had used violence and controlling conduct, and whether the father's allegations were proved.

1. Findings and evidence. The court applied the balance of probabilities. The burden remained on the party making each allegation. Rejection of an alternative account did not itself prove the opposing case. The court assessed all the evidence together, including the wider social and emotional context, and did not treat failure to prove an allegation as proof that it was false.
2. The mother's allegations of violence, controlling behaviour and abandonment were substantially proved. The father had used violence against her, controlled family finances, exploited her isolation and lack of English, threatened her with loss of the children, and installed and used a covert camera to monitor her and gather material for possible use against her.
3. The court treated covert recordings with considerable caution where the recorder alone selected the material disclosed and the recorded person was unaware of the surveillance. The recordings could not be assumed to represent ordinary family life. Their use in this case damaged the father's credibility and supported the finding that the camera was an instrument of control.
4. Transnational abandonment was not a term of art requiring a fixed factual pattern. The father had deceived the mother into travelling to Pakistan, retained or controlled travel documentation, returned to England and later failed to return the children. This amounted to stranding or abandonment within the broad concept described in Re A (Children) [2019] EWCA Civ 74.
5. The father's allegations were not proved. The court rejected the alleged violence by the mother, the alleged coercive and controlling conduct, and the allegation that she had manipulated the children. The mother's allegations were therefore established except the allegation that implements had been used to hit her. The parties were invited to draft a schedule of findings and directions.

This was a first-instance fact-finding hearing in the High Court. Earlier interim determinations had been made by Mr Harrison QC, sitting as a Deputy High Court Judge, but the present hearing was expressly treated as a fresh hearing before a different judge.