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

The mother advances these grounds with permission granted by Moylan LJ on 27 June 2025:

We received full and effective submissions on behalf of the mother from Ms Guha KC, leading Ms Ramadhan. Their central argument is that the judge, having correctly identified the cornerstone of the case (removal without consent) did not carry it through to his overall analysis. It was of cardinal importance to understand the seriousness of the abuse of the mother and the children perpetrated by the father and L, and it was inappropriate for the judge to dilute their behaviour to any degree. This was a paradigm example of post-separation abuse, and the characterisation of the abuse as mutual was wholly inapt, and demonstrated a failure to appreciate the pervasive power imbalance between the parents. The refusal to engage with the mother’s case on TMA and make an express finding is demonstrative of the lack of respect afforded to her Article 6 and 8 ECHR rights within the judgment. The finding about the knife and blood was internally inconsistent and untenable. It was abjectly inadequate to decline to make a finding of alienating behaviour in the face of overwhelming evidence: two abductions, TMA, violence, covert recording, forgery, repeated perjury, making false allegations against the mother, and replacing her as the children’s mother with L. The judge failed to ask himself how such an extreme rejection of the mother had come about. He should have found that the only rational conclusion was that the children had been the victim of a determined campaign by the father and L, lasting for years, to remove the mother from their lives.

Further, Ms Guha argues that the finding that the mother had physically abused the children was procedurally unfair. Only one specific, though undated, instance was found (hitting on the head after a trip to a bakery), but neither that, nor the accusation of hair-pulling, had been alleged by the father or the guardian. More fundamentally, those accusations had not, as the father and the guardian now accept, been put to the mother when she gave evidence. Further, the judge impermissibly relied on the guardian’s observation about the children’s accounts having a “a ring of truth”, without going on to refer to her acceptance that much must depend on the court’s overall findings.

For the father, Mr Rob George KC, leading trial counsel Ms Sarah Dines, reminded us of the well-known statements about the restraint that this court must exercise when reviewing findings of fact and evaluative judgements.

In relation to ground 1, he submitted that the judge was proactively immersed in the detail of the case and gave a well-structured decision. He recognised that the issues were interrelated, and he properly declined to deal with every detail of the evidence.

As to ground 2, the judge made a clear finding of removal without consent. In the skeleton argument, Ms Dines submitted that he analysed the father’s reasons for bringing the children to the UK. His findings were not a dilution of the import of abduction. He rightly looked at all of the evidence and came to the conclusion that he accepted the father’s explanations. The removal of the children did not need to be viewed in the stark terms advanced by the mother. The judge was entitled to conclude as he did that the father had advanced compelling reasons for his decision to remove the children.

Mr George added that the judge decided the disputed facts and he was in any case entitled to choose what facts he found and how he expressed himself. He did not excuse the father’s conduct but made a dispassionate set of findings without recourse to colourful language. A fuller characterisation of the nature and significance of the findings can properly be made at the welfare stage.

Regarding TMA (ground 3), Mr George argued that the judge was entitled to reject labelling. The present case did not fall within the definition contained within PD12J because the mother did not have rights to assert and the father did not have rights to confer.

In relation to the children’s accounts (ground 4), the judge was properly cautious about accepting the guardian’s view and he made mixed findings.

On alienation (ground 5), Mr George referred to the guidance recently issued by the Family Justice Council. This identifies alienation with reference to three elements, expressed as questions:

As to the outcome, Mr George submitted that, as so much of the appeal turned on credibility and criticism of the guardian, it would not be right for this court to make any findings of its own, or to preserve only the findings that the mother likes. If the appeal were to be allowed, he argued for a second complete rehearing.

For the guardian, Ms Siobhan Kelly, who did not appear at trial, submitted that the judgment was sufficiently reasoned and that it provides a reasonable factual matrix for making further decisions as to the children’s future. The finding about abduction was nuanced, but not to an extent that was perverse or irrational. Likewise, given the extent of his other findings, the judge was not wrong to specifically consider his findings in terms of TMA, or of alienation. On ground 4, Ms Kelly pointed out that the judge’s finding about the mother’s behaviour towards the children was not solely based on the guardian’s recordings and professional opinion. Like Mr George, Ms Kelly submitted that if the appeal were allowed, there should be no cherry-picking of the judge’s findings.

There are three matters that call for comment: the purpose of fact-finding, child abduction and kidnapping, and transnational marriage abandonment.