S (Children: Transnational Marriage Abandonment), Re

Fact-finding, particularly at a split hearing, must provide a fair and sufficient factual foundation for later welfare decisions. The court must therefore determine and characterise past conduct at that stage, rather than defer its significance to welfare.

Prolonged international child abduction may constitute serious harm to both children and the left-behind parent. PD12J transnational marriage abandonment is a broad concept. It arises where one spouse exploits, or attempts to exploit, the other’s vulnerability to prevent their coming to or returning to the United Kingdom; success is not required.

Findings that a parent abused children cannot safely rest on vague, unpleaded allegations that were not fairly put to that parent. A children’s guardian brings the children’s voice to the court, but credibility findings remain for the judge.

The mother appealed against findings made by Trowell J after a rehearing in private law proceedings concerning two children. The father had removed the children from Afghanistan to England without the mother’s consent. The mother remained abroad and had been unable to re-establish contact with them.

An earlier decision dismissing the mother’s application for summary return had been overturned after Home Office material exposed the father’s false account: Re S (Children) (New Evidence) [2024] EWCA Civ 1265. At the rehearing, the judge found non-consensual removal and an assault by the father, but declined to find transnational marriage abandonment or alienating behaviour. He also found that the mother had physically and emotionally abused the children.

The appeal concerned the adequacy and fairness of those findings and whether the resulting factual matrix was sufficient for a welfare determination.

Disposition

1. The appeal was allowed. The findings did not provide a fair and sufficient factual foundation for welfare decisions. The proceedings were remitted to another judge of the Family Division for directions and a welfare hearing.

2. Fact-finding is not a provisional exercise. Its purpose is to establish the past in a form that fairly informs future welfare decisions. The judge therefore erred by treating fuller characterisation of the father’s conduct as something that could be deferred to welfare.

3. The father’s non-consensual removal of the children, use of forged documents and false evidence had to inform the whole evaluation. Prolonged child abduction can be a pernicious form of child abuse and, depending on the facts, an extreme form of domestic abuse. The court held that the abduction, stranding, dishonesty and alienation were inseparable features of the case.

4. Applying Re A (Children) [2019] EWCA Civ 74, transnational marriage abandonment is not a formulaic label. Its core is exploitation or attempted exploitation of a spouse’s vulnerability to prevent them coming to or returning to the United Kingdom. The father had ensured that the mother could not follow the children. That was transnational marriage abandonment, an extreme form of domestic abuse and harm to the children within PD12J.

5. The only reasonable conclusion was that the father and L had conducted a sustained campaign to remove the mother from the children’s lives. The court therefore amplified the limited alienation finding below.

6. The findings that the mother beat the children, hit them on the head and pulled their hair were set aside. They were general, undated and not squarely put to her. The guardian’s role was to convey the children’s accounts, not to advise whether they were true. The separate finding that the mother had returned with a knife and blood was too vague and perplexing to stand.

The court preserved the unappealed findings concerning the forgeries, both removals, the assault, and the family council. It also preserved the finding that A’s arm injury was accidental and the refusal to make a poisoning finding. Any further fact-finding must be necessary, properly pleaded and fairly conducted.

• Court of Appeal (Civil Division): Allowed the mother’s appeal, made findings of transnational marriage abandonment and alienation, set aside specified findings against the mother, and remitted the case for welfare decisions: [2025] EWCA Civ 1058.
• High Court of Justice, Family Division: Trowell J made findings after a rehearing on 11 March 2025. Those findings were the subject of this appeal.
• Court of Appeal (Civil Division): Allowed the mother’s earlier appeal, admitted fresh Home Office evidence, set aside the previous findings and remitted the matter for rehearing: Re S (Children) (New Evidence) [2024] EWCA Civ 1265.
• High Court of Justice, Family Division: HHJ Middleton Roy dismissed the mother’s summary-return application and made findings in April 2024. The findings were later set aside on the earlier appeal.