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

The judgment, which runs to 21 pages, is largely devoted to the cross-allegations in the Scott Schedule. The mother’s allegations are considered at paragraphs 22-61 and 85-92, and the father’s cross-allegations are considered at 62-84. I have already indicated the substance of a number of the findings, and now extract passages that were the subject of comment during the appeal, together with the judicial responses to some of the parents’ requests for clarification.

The judge said that he found the parties’ oral evidence as being:

“46.

… of little help. Both parties are wedded to their account to the extent that what they said was of little assistance. I had no sense that either was honest with me.

47.

So, I am left with weighing and evaluating the documents and the inherent likelihoods of what has happened and balancing in all the other matters which I refer to in this judgment.”

Having found the father’s evidence about the mother’s consent “unreliable”, the judge stated:

“50.

I conclude then that the father did wrongfully remove the children from the care of the mother, on two occasions. (I see the journey to Pakistan in 2022 as fuelled by the same dynamic and working in much the same way as the removal here in 2023.) In the sense that he removed them without the mother’s consent. I do note that he did so because of fear for his own security in Afghanistan, fear for the children, as girls, in Afghanistan, and fear of leaving the girls behind. I highlight here, and will explore this more fully below, his fear was not merely a selfish fear that he would lose them, but fear for their care with their mother.”

The incomplete third sentence is perhaps best read as a final clause to the first sentence.

In relation to TMA, the judge said this:

“52.

I do not want to become involved in definitions, or a linguistic analysis of ‘transnational abandonment’. The mother, I have already found, was left in Afghanistan while the father without her consent brought the children to this country. It has been his case at times during these proceedings (as it was before me) that the plan would be that the children would come here with him and then he would help the mother to come. There is no evidence that he has taken steps to help the mother come, save for the 2022 visa to Pakistan. He knew full well that his evidence of a divorce would make it more difficult for her to come as her best chance would have been as his wife. Insofar then as he might have said her following was a possibility he would have misled her. However, I disbelieve his case as currently put on this. It was not an account that he gave in his first statement. The mother did not complain in the early stage of these proceedings that he had told her she would be coming, and he has failed to fulfil that promise. The account from the family meeting or Jirga was not for removal on that basis. The mother’s response to the picture of her child at a party in London was not ‘where is my visa?’. I find that the father did not hold out a promise to bring the mother here. It may have been something he would say from time to time as an outside hope, it may just be an invention on his part made during the progress of the litigation to try and explain why the mother might have agreed to her children leaving without her. It was not a plan that either parent thought would be likely to be achieved, and no deal was done on the basis of it.”

This evoked a request for clarification from the mother:

“The court is requested to clarify whether or not it has made a finding that the Mother is a victim of transnational abandonment namely: the Father abducted the children from her care and from their homes in Afghanistan on 5 July 2023 from their schools with the intention that the Mother would have no realistic means of coming to England to be reunited with her children or reestablish a meaningful relationship with them.”

To which the judge responded:

“I set out clearly that I did not want to engage in labels. The father brought the children here without the mother’s consent and without a promise that she would follow.”

The mother further requested clarification of whether, in addition to finding that the father had assaulted her, the judge had made the requested finding of psychological abuse. The judge responded:

“Given my finding of physical abuse I did not consider a finding of psychological abuse necessary.”

Turning to the father’s allegations, the judge first considered a covert recording (extracted from 30 or 40 made by the father) in support of his claim that the mother was emotionally abusive towards him:

“62.

The father says that the mother was emotionally abusive towards him and threatened to stab him. He relies on a threat of which I have an audio recording, the translated transcript of which sets out:

just wait, I will not let you go without [hitting you with] a knife [repeated twice]. A knife befits you [people of your sort]. I will hit you with a knife seven times when you are asleep. When I get [not clear] out of you, I will then tell you to do anything you can in the hereafter.

63.

The mother accepts that this was her and says that it was from a time when she had been locked in the parties’ bedroom, that the father had been abusing her and was telling her he would be taking the children away from her to live with L. She says that her ‘heightened emotions’ caused her to say things that are regrettable.

64.

The mother points to the fact that is a selective, short, covert, recording. It tells us nothing of what the father had said. Ms Guha cautions me against relying on covert recordings generally, saying that they may be edited and selective and that they are a form of harassment and are likely to be harming to the children.

65.

The mother is right in in her observations, and I hold Ms Guha’s caution in mind. None the less the recording does show that when the mother loses her temper, she loses it dramatically. Regardless of context, the threat that it contains is so violent that it is not possible to consider this as anything other than abusive. I have already found that the father was violent to the mother. I conclude that the parties were mutually abusive, albeit there is a difference between a physical beating and a verbal threat.”

The judge considered the father’s claims of physical and emotional abuse of the children by the mother at paragraphs 66-81. He approached these through Ms Demery’s evidence of what the children had said (it being a feature of the case, not noted by the judge, that the father himself had no direct evidence of abuse to give):

“67.

Ms Demery records in her Wishes and Feelings report and by way of a position statement (produced in relation to the issue as to whether A should give evidence) which was confirmed by her orally, a number of allegations which the children make against the mother. The allegations in the report coming from the children include (i) that she beat them and hit them on their heads, (ii) that when trying to get away from her because she was angry A fell in the toilet and cut herself on something sharp; (iii) that she fought with and threatened the father including by way of stabbing him, poisoning him (this incident was repeated and expanded upon by B on a second visit); (iv) that she threatened to tell the Taliban where he was; (v) being beaten and hit after a trip to the bakery (an account which Ms Demery described as vivid), (vi) seeing their mother returning from her sister in law’s covered in blood with a knife in her hand (this incident was repeated and expanded upon by A on a second visit); (vii) sitting on A’s back and pulling her hair.

68.

In the visit that the Guardian made in advance of me determining whether A should be allowed to give evidence A made clear to her that she wanted to give evidence to me directly. She feared that I would not understand her evidence and in particular ‘the cruelty’ we have experienced.

69.

In answer to a question from me as to what weight I should put on these allegations Ms Demery told me that some of what they have said has ‘the ring of truth’ about it, and that their accounts were ‘believable to a large extent’.

70.

The father and L each repeat what the children have said to them. The mother denies the allegations. She does accept that she would, appropriately and rarely, physically chastise the children when required.”

The judge found the injury to A’s arm (accusation ii) to have been accidental. He declined to make a finding about poisoning (part of accusation iii) or about telling the Taliban (accusation iv).

The judge said this about accusation vi:

“77.

On this issue it is important I bear in mind inherent probabilities. It is not likely that the mother stabbed someone. I do however have the evidence of the children and the text message. I do, I note, also need to factor in that the mother clearly loses her temper dramatically. I must step back and consider what weight to give to what the children have reported. I must bear in mind that they want to stay in this country, and they have been with their father as he has conducted this case and that it is being said he has alienated them. I do however consider the text message and what the children have said to Ms Demery cannot just be discarded. They outbalance the potential lack of context, the lack of evidence as to a charge, the potential unreliability of the children’s account. 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.”

In regard to the general accusation that the mother had physically and emotionally abused the children:

“80.

As to the more generalised allegations that the children were beaten by the mother, the mother denies that she did anything more than administer appropriate physical chastisement. She points out to me that the approach to physical chastisement is different in Afghanistan to this country. She does not accept that she did anything more than administer a tap to the children. On this point I again have to confront the issues of what weight I should attach to the children’s view. I will not repeat the points made above on that issue. I do repeat what I have already set out that Ms Demery considers the some of what the children have said has a ring of truth. I also bear in mind the mother’s tendency to lose her temper – including in relation to the children, and her repeated threats in relation to use of a knife, and further threats I shall detail below. I also note my conclusion in relation to the ‘stabbing’ incident. I do note the consistent account the children give of their allegations and that, for the most part, they have not become more florid the longer the children have been with the father. This could be the consequence of good ‘coaching’ but may also indicate that the accounts reflect what actually happened. I do on balance find that the mother has lost her temper with the children and administered physical rebukes of them which are not to do with chastisement but her own loss of control. I find the children are telling the truth when they say she would beat them and hit them on the head, including on an occasion after a trip to the bakery and indeed that she would on occasions when she lost her temper, pull their hair.

81.

I do therefore find that the mother has emotionally and physically abused the children as I have described above. I do want to note that this was in circumstances where there was a marriage that was not working, and was violent, and the father had taken another wife, and was threatening to take the children, and the day to day living arrangements were unquestionably very difficult.”

In considering the children’s accounts of violence on the part of their mother, the judge did not reflect on their silence in respect of the father’s assault on her.

In relation to threats by the mother to L, the judge quoted the mother’s extremely abusive remarks (which had been recorded) and continued:

“83.

The mother explains that this was her only time of talking to L and occurred when L rang to speak to the father shortly after she first heard of his second marriage and understanding that he would want to raise his children with her.

84.

I am content to accept that explanation, but it does not lead to any other conclusion than that the mother has a violent temper and that she has made violent threats.”

Finally, the judge dealt with the issue of alienation. He declined to make a positive finding of alienating behaviours on the behalf of the father or L, but found that the litigation will have impacted upon the children’s view of their mother, and that neither the father nor L had a real appreciation of the importance of the children having a relationship with their mother.

“87.

The father was clear that he had tried to get the children to engage with the mother, but they refuse. Though I need to check myself when believing anything he says I am inclined to believe that he is telling the truth in this regard. He is able to see that it is in his interest, so far as this case is concerned, to not only demonstrate that he is trying but also to bring about some contact.

88.

L, I felt gave lip service to encouraging the children to engage with their mother but at heart was entirely sympathetic to their refusal. The mother, L thinks, is a terrible person who has abused her and the children. She could not see any advantage to the children in having a relationship with her.

89.

L was not able to identify any positive benefit of the children having a relationship with their mother. The father was able to make the obvious point that she was their mother, but I formed the impression that he felt contact was important because the court wanted it to happen.

90.

Other than the fact that the children were resisting contact with their mother, which must be seen in the light of her behaviour to them, there was no evidence from which I could draw a positive finding that the father was engaged deliberately in trying to turn them against the mother. That however is rather to miss the obvious point. The children’s interests and the father’s and L’s interests align: they do not want to go back to Afghanistan. So long as that threat remains, and these proceedings embody that threat, the children are likely to believe it is necessary to reinforce the case that the mother is ‘bad’. Hence there was an application for A to give evidence. The endeavour to show that the mother is ‘bad’ is common to both the father and the children. A better parent might have been able to stand back from the court fight enough to save the children from becoming sucked in, but the father would need to show unusual, if not exceptional, qualities to have achieved that insight into the children’s best interests.

91.

My finding on this allegation of alienation is not merely one word. It is that there is no conscious attempt to turn the children against the mother, but there is a polarising effect of the litigation which will result in these circumstances in the children holding to a negative view of their mother. The children have not been sheltered from this litigation. Such sheltering would have been to their advantage, but it would have been unusual, if not exceptional.

92.

I do further find that there is no real appreciation by the father or L of the importance to the girls of having a relationship with their mother.”

The judge’s consequent order of 27 March 2025 dealt with a number of issues:

Further directions were duly given by the judge, vacating the hearings in July and October.