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

This is an appeal brought by the mother of two children from findings of fact made on 11 March 2025 by Mr Justice Trowell after a four-day hearing in the Family Division of the High Court. It is unfortunately the mother’s second appeal to this court in these proceedings.

This is an Afghan family. The proceedings arose from the removal of the children by their father from Afghanistan to the United Kingdom on 5 July 2023. The father and children remain here in a household that includes the father’s second wife, L. The mother, who had been the children’s constant carer, remains in Afghanistan. She has so far been unable to enter this country and the children have accordingly not seen her for two years. There is no remote contact either, despite an order being in place for regular video-call contact.

The father’s account was that the mother had consented to the children’s removal. The main issue for the judge was whether that was so. He found that it was not, and he further found that the father had assaulted the mother shortly before the removal. There is no appeal by the father from these findings.

However, the judge declined to make a finding of transnational marriage abandonment (‘TMA’) or of directly alienating behaviour by the father and L, and at the father’s behest he found that the mother had abused the children, though not in the terms that the father had sought. The mother now appeals in respect of those matters. The appeal is resisted by the father and the children’s guardian.

I am in no doubt that the appeal must be allowed for the reasons given below. The judge’s findings about the conduct of the father and the second wife did not do justice to the force of the evidence and the finding that the mother had abused the children was, at a minimum, procedurally unfair. I would remit the matter for welfare decisions to be made on the basis set out at the end of this judgment.