M v F & Ors

In a fact-finding hearing concerning children removed across international borders, the court must determine disputed allegations by applying the balance of probabilities. The inherent probability or improbability of an event is relevant when weighing the evidence. A lie on one issue does not establish that a witness has lied on every other issue. Allegations must be assessed in the round, taking account of the interaction between individual findings and the parties’ circumstances.

Alleged parental alienation requires careful distinction between a conscious attempt to turn children against a parent and the polarising effect of litigation, particularly where the children’s and resident parent’s interests align.

The mother applied in relation to two children living in England with their father after their removal from Afghanistan in 2022 and 2023. She alleged wrongful removal, transnational abandonment, domestic abuse and alienating behaviour. The father alleged that the mother had abused him and the children.

A deputy High Court judge had declined a summary return in 2024, finding the removal consensual. The Court of Appeal later allowed the mother’s appeal concerning the findings, while leaving the refusal of summary return undisturbed. The present hearing concerned fact-finding and the consequences for future child arrangements.

1. The court applied the balance of probabilities. In assessing probabilities, the inherent likelihood or unlikelihood of an event was relevant. The court assessed the evidence in the round and treated the parties’ oral evidence with caution.

2. The father’s inaccurate evidence and false divorce documentation undermined his account that the mother had agreed to the children’s removal and would subsequently follow them. The court found that the children had been removed without the mother’s consent on both occasions. It also found that the father had not promised, as part of any agreement, to bring the mother to England.

3. The court found that the father had struck or slapped the mother, causing facial injuries, and that the parents had been mutually abusive, although physical violence and verbal threats were materially different. The mother had also emotionally and physically abused the children by losing her temper, beating or hitting them, and pulling their hair. The court declined to find attempted poisoning and did not find that the mother had stabbed anyone.

4. The court distinguished deliberate alienation from the effects of litigation. It found no conscious attempt by the father or his wife to turn the children against the mother. Nevertheless, the litigation had a polarising effect, the children had not been sheltered from it, and their interests had aligned with the father’s interest in resisting their return. The father and his wife showed no real appreciation of the importance of the children’s relationship with their mother.

5. Fact-finding findings were made. The case was adjourned to 27 March 2025 for consequential matters and directions concerning appropriate child arrangements.

• Court of Appeal: on 24 October 2024, allowed the mother’s appeal insofar as it concerned the earlier judge’s findings. The refusal of a summary return was not set aside.
• High Court (Family Division): conducted the subsequent fact-finding hearing and made findings on the parties’ allegations. Consequential child-arrangements directions were adjourned.