CA-2025-000682 - [2025] EWCA Civ 1058

The judge was clearly right in his central finding that the mother had not consented to the children coming to the UK in July 2023, and that the father had lied and forged documents in order to bring them here. Once the Home Office file came to light, the evidence for those findings was overwhelming.

The father’s assertion of consent was, as Arnold LJ said during the hearing, the central pillar of his case and, once it was demolished, everything had to be viewed in a different light. The court was faced with a parent who had as recently as April 2024 successfully hoodwinked the High Court by perjury and forgery, and who would happily have enjoyed the fruits of the injustice that he had brought about by abducting the children and covering his tracks. Forced into a rehearing, he and L then tried to brazen it out for a second time.

On the basis of the judge’s own findings this was therefore a blatant case of child abduction, exacerbated by transnational marriage abandonment, relationship severance, and disgraceful lies. This note should have resonated throughout his analysis, but it did not in a number of respects.

First, the judge did not take stock of what his finding about consent told him about the characters and credibility of the father and of L. He approached the allegations against the mother and the issue of the alienation of the children as if the parents’ perspectives were still entitled to equal respect. His statement that both parties were so wedded to their account that their oral evidence was of little assistance, and that he had no sense that either was honest with him, cannot be squared with the fact that the mother had twice told the court the truth about consent in the face of everything the father had thrown at her. The partial extenuation of the father’s motives at paragraph 50 might have been in point if the father had had a plan, which had somehow misfired, that the mother was to accompany or follow, or if he had admitted the abduction and claimed those motives for himself. As it was, speculation about any unselfish aspects of the father’s mindset was out of place.

Next, in his treatment of the issue of alienation, the judge followed a similar course. At paragraphs 90-91, he focused narrowly on whether there was any evidence from which he could draw a positive finding that the father was deliberately engaged in trying to turn the children against their mother, and he found there was not. He then made what he called “the obvious point” that the children’s interests aligned with those of the father, that a better parent might have shown more insight, and that the litigation had had a polarising effect. That was, with respect, a pale reflection of what had occurred. Long before there were any proceedings, the father and L had recruited the children to clandestinely abandon their mother, their wider families, their home and their country. They had then executed a ruthless and hitherto successful plan to leave the mother defenceless. Despite this, the judge approached the matter as if this was a routine allegation of alienation in a domestic setting, when in reality the abduction, the stranding and the dishonesty went hand in hand with the alienation of these children from their mother. I accept Ms Guha’s submission that there was no reasonable alternative to a finding that there had been a determined campaign by the father and L, lasting for years, to remove the mother from the children’s lives. I also note her submission about the finding at paragraph 87 that the father had then to tried to get the children to engage with their mother. The judge said he found the oral evidence on this topic more helpful and was inclined to believe that the father was telling the truth in this regard, as it would be in his interests to try to bring about some contact. That observation begs the question about the father’s underlying motivation, but it is better that I say no more about it, as it closely concerns future arrangements.

Third, there was no good reason not to make a straightforward finding of abandonment. It is not a question of labels. As stated in Re A,the core feature of the concept of stranding or abandonment is the exploitation by one spouse of the other’s vulnerability or weakness to seek to ensure that they are not able to come to or return to the UK.

If the judge had an objection to naming TMA, he could have given it. What mattered, for the reasons given above, was that the judgment should sufficiently reflect the abandonment. A finding that the father brought the children here without the mother’s consent and “without a promise that she would follow” does not address the mother’s complaint that the father had made sure that she could not follow. That is the essence of a finding of TMA and the mother was in justice entitled to it. Further, the absence of such a finding could only prejudice her efforts to retrieve the situation that the father had created by making it harder for her to obtain a visa to come to this country to see her children, or at least to participate in the proceedings with less disadvantage.

Lastly, the findings that the mother would beat the children and hit them on the head, including on an occasion after a trip to the bakery, and would on occasions when she lost her temper, pull their hair, are assailable on a number of scores. The children’s statements had to be put into context. There was no genuine contemporaneous evidence that they were unhappy in the mother’s care, and the father left them with her at will to pursue his career and double life. The father had never claimed to have seen such behaviour himself. The allegations that he did make were not accepted by the judge. There was no wider supporting evidence. The children were living in an unfamiliar country, totally dependent on adults who were thoroughly hostile to their mother and who had stopped at nothing to bring them and keep them here. The matters found by the judge were generalised, undated and not squarely put to the mother when she gave evidence.

The judge was also in my view wrong to engage in any consideration of what the guardian, even one as experienced as Ms Demery, might think about the children’s credibility. He rightly reminded himself that the finding of facts was his province, but he twice referred at critical points in his analysis to the “ring of truth” remark that had been extracted in cross-examination, without reference to Ms Demery’s later prudent disclaimer. The role of the guardian was to bring the children’s voice into the courtroom, not to advise the court whether they were telling the truth.

The further finding about a knife and blood at paragraph 77 is also perplexing. The judge found that the lack of context and supporting evidence and the potential unreliability of the children’s account were outbalanced by what the children had said and the mother’s text message about knives. He found that:

“On a balance of probabilities assessment I do consider that the mother came back, and the children saw her, with a knife and with blood on her. I do not find that she has stabbed anyone, but I do find that the children having witnessed this, and having heard their mother talk about using a knife were frightened by what they saw.”

If the mother had not stabbed someone, where had the blood came from? It is also not clear how and when it is said that the children became frightened by the mother speaking about knives. As it stands, the finding is too vague to be reliable.

In making these findings the judge was clearly swayed by the mother’s intemperate statements to the father and to L. However, any spouse and parent in this mother’s position would feel, and likely express, strong indignation at the way they had been treated, and the judge should therefore have assessed these emotional outbursts with considerably more caution. The mother’s reaction when first exposed to L on the telephone were unlikely to be a sure guide to her treatment of her children, and her venomous message to the father came hard on the heels of his abducting them and their refusal to speak to her. Likewise, the earlier covert recording of the mother’s abuse of the father from inside a locked bedroom after learning of his sustained deception could scarcely tell the court much about her normal behaviour. The judge noted that he was being given the father’s selection from multiple covert recordings, but he could not know how representative this recording actually was, and its deployment in support of a finding about the mother’s treatment of the children was more than that evidence could reasonably bear.