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

In November 2023, the mother applied for the summary return of the children to Afghanistan and for the children to be made wards of court.

A final hearing took place before HHJ Middleton Roy (sitting as a Deputy High Court Judge) between 22 and 24 April 2024. The father gave evidence that he had persistently tried to secure a visa for the mother to come to this country, and that he had not tried to divorce her as that would “sabotage” any visa application. There had been no Home Office disclosure.

The court dismissed the mother’s application for summary return on the basis that the mother had consented to the removal of the children. All of her allegations against the father were dismissed.

The court’s findings about the parties’ credibility at that stage were summarised by Moylan LJ in the appeal that followed (see below):

“18.

The judge found that “the evidence of the father was consistent on the material, core issue”, namely whether the mother had agreed to the children moving to live without her in England. His assessment of the parents was starkly contrasted. He considered that the father had given his evidence “in a straightforward manner, without evasion” and concluded that, “overall, [he] found the father’s oral and written evidence to be largely consistent on the core, material issues” (emphasis added). In contrast, he considered the mother an unreliable witness such that he “could not properly attach weight to her evidence”. These conclusions clearly formed the critical, or fundamental, foundation for his determination of the factual disputes which included that the mother had consented to the children moving to live in England. For this and other reasons, as explained in the judgment, the judge dismissed the mother’s application for a summary return order.”

Subsequently, HHJ Middleton Roy directed disclosure from the Home Office, which arrived in September 2024 and amounted to 700 pages of documentation. This documentation ultimately demonstrated that the father had comprehensively perjured himself at the first hearing.

Meantime, two ‘Wishes and Feelings’ reports were filed in April and June 2024 by Ms Demery of Cafcass, who in due course was appointed as children’s guardian. She described an unsuccessful attempt to facilitate video contact between the children and their mother in March 2024. When the mother came onto the link “the children refused to speak to her and they began to sob uncontrollably.”

The mother was granted permission to appeal out from the April decision and permission to rely on the Home Office evidence,. The father, represented by leading and junior counsel acting pro bono, opposed the admission of the new evidence and fought the appeal.

On 24 October 2024, this court (Moylan, Phillips and Lewis LJJ) admitted the fresh evidence and allowed the appeal: see Re S (Children) (New Evidence) [2024] EWCA Civ 1265. The mother did not seek to set aside the refusal to grant a summary return, and this court did not do so, praising that decision as child-focussed, but she sought the setting aside of the findings of HHJ Middleton Roy. They were set aside on the basis that the new evidence undermined the previous findings to such an extent that they could not stand. The matter was remitted and was allocated to the judge for directions and re-hearing.

In November 2024, the judge determined (against the father’s opposition) that there should be a further fact-finding hearing. He noted that the outcome might affect the mother’s ability to come to the UK to pursue her relationship with the children. He fixed a three-day hearing starting on 25 February 2025. His order records that neither parent considered it to be in the children’s best interests for them to give oral evidence at the fact-finding hearing. Directions were given for an exchange of Scott Schedules and responses by the parents, and also for the guardian to file her own schedule if she sought any additional findings. The parents filed schedules and responses but the guardian did not seek any findings of her own.

Shortly before the rehearing, the father applied for A to be allowed to give evidence. On 17 February 2025, the judge refused that Re W application on the basis that the children’s voices would be heard through the guardian. The mother applied for intermediary assistance, on the basis of a professional assessment that she suffered from ‘marked communication difficulties’. The judge also refused that application but put in place ground rules. Neither decision was challenged by way of appeal.

The parents filed Scott Schedules in advance of the second fact-finding hearing. The mother sought findings that:

For his part, the father sought findings that:

At the rehearing, the judge heard oral evidence over three days from the mother, the father, L, and the guardian. The mother gave evidence by video link from Pakistan, to which she had travelled in an unsuccessful attempt to travel on to England for the hearing. Written submissions were delivered. Judgment was reserved and was handed down on 11 March 2025.

The judge did give an account of the procedural history, from which I take these extracts:

“10.

Following that the matter was listed before me in November 2024, when I held that there needed to be this fact-finding hearing, and for a PTR in February 2025. I shall not note the directions further than to remark that:

a.

At the PTR the mother asked for an intermediary assessment. That led to a recommendation that she should have an intermediary and an application on paper followed. I declined that application, not least because she would be giving her evidence remotely and via a translator, but I held a ground-rules hearing at the beginning of the fact-finding hearing. An agreed set of ground rules were produced following the suggestions in the assessment. There has been a resolute but not infallible attempt to adhere to those rules, but I must remind myself that when considering her evidence that the mother is a vulnerable witness. Her comprehension of language, and her grasp of time, is weaker than would be considered normal.

b.

At the PTR the father made an oral application for the elder child, A, to give evidence to the court directly. He then renewed the application in writing. I declined that application. I made clear then that I do consider that it is important the children’s voices are heard but I would hear them from their Guardian.

…

11.

I heard the mother on the first day of the hearing. I will deal with the detail of the evidence when considering the matters of fact that I am to determine. I will however note that it was far from ideal having her give evidence remotely, via a translator, and with only a large pile of papers for a bundle. It had been agreed that she should have a friend with her to help her find her way through the bundle as part of the ground rules. That was ineffective. The pages should have been in a file. As a consequence, pictures of pages had to be sent to her by WhatsApp to enable cross examination to take place. I have already noted that she was a vulnerable witness. I note further that the conditions in which she gave her evidence would not have assisted her. I note yet further that she was cross-examined for longer than timetabled.

12.

I heard the father on the second and third day of the hearing. He also had the benefit of a translator though he only occasionally relied on him. Again, I will deal with the detail of his evidence as I consider the matters of fact I am to determine. I do however record that it was clear to me that he was caught in a straightforward lie: either he let the court believe wrongly at the first hearing that he was still married to the mother, or he deceived the Home Office when applying for a visa to this country that he was divorced from her. That inevitably means that I will have to remind myself that a lie on one issue does not mean that he has lied on other issues and that there are all sorts of reasons for lying, some of which might lend weight to other aspects of his case. It is appropriate that I note that his cross-examination took longer than timetabled. Further, the cross examination was forceful and took place for longer than was timetabled. Given the length and the tenor of the cross-examination it is necessary for me to consider that the father would have been tired and stressed when giving his answers.

13.

I heard from Ms Demery on the second day. From her evidence emerges the positive in this case. The children are, she tells me, delightful. B is thriving; she is a ‘live wire’. A is more introverted and thoughtful. She has been referred to CAMHS, I am told by the father, and Ms Demery agrees, she is troubled. Nonetheless given what I am to relate and the relationship between their parents, the children’s resilience is to be celebrated.

14.

I heard from L, who is the father’s second wife (a term that I do not intend to be over read for reasons set out below) on the third day of the hearing. She also had the benefit of an interpreter, whom she used only on occasions. The translator properly called to my attention the fact that Ms L was a Farsi speaker, and he was certified only as a Pashto interpreter. Given however he related that his Farsi was good, and her Pashto and English were good, we did not adjourn to await a new translator.”

This was clearly a challenging hearing. The judge was faced with two apparently plausible English-speaking witnesses in person, while the mother was at a disadvantage through her vulnerability, enforced absence, dependence on an interpreter and difficulties with documentation.

It is necessary to refer at this point to some extracts from the guardian’s evidence. They are from an agreed note of the evidence, it being a cause for considerable concern to this court that the recording system failed so that a transcript is not available.

Ms Demery is being questioned about statements made to her by the children. G is Ms Demery, SD is father’s counsel, J is the judge, and AG is mother’s counsel.

“SD – The trip to bakery after which she was beaten and locked in the bathroom – it is quite specific allegation – complex narrative?

G – Um, yes, I mean she doesn’t say why M would have beaten her for getting bread. Misdemeanour element isn’t apparent. It was a vivid picture she presented to me.

SD – Do younger children if alienated – are they able to give a long narrative about an incident or just general details?

G – Umm, I think it varies from child to child – yes, I mean they were both children, but as you can see from the reports given, they are vivid accounts.

J – I think the question being asked goes to the weight I should give these accounts – do you think I think the questions are saying – more vivid means they are more likely to be true, or can you not say?

G – I think certainly some of the accounts seem to have clear ring of truth about them – it is clear that their relationship with M was quite strained in many ways. They’ve maintained their views over a long period of time.

J- Does fact they maintained their views make more or less likely … the incidents described by the children happened?

G – I don’t know how to answer that as it could be either way. My overall impression is yes. If repeating a continued account with the same narrative – the overall impression was that the children had suffered and M has admitted some incidents between them. Weight to give to children’s account is difficult because they have not seen mother since July 2023 and they’ve been in the F’s care the whole time. The children are in this limbo and they do not know what the future holds for them.”

…………

“SD – B describes her M pulled her hair, hit her shoulder and locked her in the bathroom?

G – She does describe that.

SD – Both of the girls are believable in what they said?

G – They are, certainly – I certainly felt they had some very painful experiences and that, yes, much of their accounts were believable.

J – I just want to ask – the gap between painful experiences and these events happening. These events would be painful experiences, but… did you credit their accounts of these events?

G – Yes, I did.

SD – So you believe them?

G – I believe them to a large extent, it is incredibly difficult to know sometimes.

J – That is going to be a question for me to resolve.”

_____________

“AG – There is a huge question mark as to what these children experienced in Afghanistan – that is the primary purpose of the fact-finding hearing?

G – Yes, but children only – as I said at beginning of this evidence. The children [are] desperate not to return to Afghanistan. That has been their focus. To find out anything positive about their life beforehand was difficult. They just concentrated on the negativity of returning.

AG – All the fundamental issues on this case are closely interwoven – whether F was violent to M and whether he abandoned her in Afghanistan?

G – Yes.

AG – Whether children are reporting true allegations that M was violent to them – whether F has lied to everybody including children about M consenting to the removal. And whether this mother was abandoned in Afghanistan?

G – Yes.

AG- I suggest it is unfair to expect you to unpick this in the witness box prior to these findings having been made.

G- I think that is correct. I am struggling in a sense and need to work through what I think, and all I know is that children want to remain here and I think most of what they said has to be seen through that prism as well.”