UK Court Recognizes Stranding in Complex Child Abduction Appeal

Serena Sandhu

Legal win for mother left stranded in Afghanistan after her children were abducted to the UK

The Court of Appeal’s ruling in S (Children: Transnational Marriage Abandonment) widens the definition of “stranding” to protect more parents whose children are taken overseas without consent.

Transnational marriage abandonment (TMA), also known as “stranding,” happens when someone deliberately abandons their foreign-national spouse abroad, often in their country of origin, to prevent them from asserting matrimonial and/or residence rights in the UK.

Women represent the vast majority of TMA victims. These cases typically involve sophisticated methods of control including passport confiscation and deliberately separating the victim from their children. The significance of TMA in child abduction cases is that it severs the child from the left-behind parent. The courts recognise TMA for what it is: a particularly insidious form of domestic abuse and harm towards the children.

The case of S (Children: Transnational Marriage Abandonment) EWCA Civ 1058 is not, on the face of it, a typical case of TMA. Here, the father of an Afghan family took the children to the UK, knowing the mother had no realistic way to follow, but he did not confiscate the mother’s documents and there were question marks over whether the mother had consented to the children’s relocation.

The key issues: did the father abduct the children, and could the mother be considered “stranded” in Afghanistan under the law?

What happened?

The mother and father were both Afghan nationals living in Kabul. They married in 2009 and had two daughters.

In 2014, the father started a relationship with L, who grew up and lives in the UK. In 2017, he made a dishonest application for leave to settle in the UK as L’s partner, using a forged divorce certificate. A divorce would make it more difficult for the mother to obtain a visa to come to the UK.

The father later “married” L.

After obtaining leave to remain in the UK, the father began secretly arranging for the children to come to the UK, applying for visas behind the mother’s back. The children were living with their mother in Kabul during this time and had no idea of their father’s plans.

In 2022, the father told the mother that he was taking the children for a medical checkup in Kabul. Instead, he took them to Pakistan, intending to bring them to the UK once he had secured their visas. They remained in Pakistan for three months and had no contact with the mother. When the mother contacted the British Embassy in Islamabad to say that she did not consent, their visas were refused, and the father took the children back to Kabul.

Despite the mother’s clear opposition, the father managed to obtain leave for the children to enter the UK as his dependents. In July 2023, he removed the children to the UK, where they now live with him and L.

The mother has not seen her daughters since, not even through video calls.

Did the mother consent to the relocation?

The parties began a series of court proceedings, starting in November 2023, when the mother applied for the children to be returned to Afghanistan citing child abduction. The father argued that the mother had consented to the move and showed a letter that appeared to back this up. The Court denied the mother’s application.

However, later evidence from the Home Office revealed the extent of the father’s dishonesty, including perjury and document forgery—the mother’s consent was not genuine. On the back of this, the Court opened a fact-finding hearing which found that the father did wrongfully remove the children from the care of the mother, on two occasions (first to Pakistan and then the UK).

However, the Judge excused the father’s actions in abducting the children, finding that the mother had physically and emotionally abused them in the context of a marriage that was not working. He also found that the father had not tried to turn the children against their mother, and declined to consider the possibility of TMA.

The current case is an appeal of that decision.

A “blatant case of child abduction”

On revisiting the complex facts in this case, the Court of Appeal found the father and L had perpetrated a “ruthless and premeditated abduction,” stranded the mother in Afghanistan, persistently lied about what they had done, and thoroughly indoctrinated the children against her.

The judgment noted there was “no credible evidence of a plan for the mother to follow the children to the UK.” Rather, the forged divorce certificate was intended to sabotage the mother’s efforts to reunite with her children.

In making this decision, the Court of Appeal adopted a broad view of stranding, describing it as “any action taken by a spouse which puts obstacles in the way of the other spouse being able to return to the UK.” The Court felt the father’s conduct fell squarely within this. Not only he removed the children from their mother, he actively undertook a campaign of alienation lasting for years: forgery, repeated perjury, making false allegations against the mother, and replacing her as the children’s mother with L.

It was such an extreme rejection of the mother that the only rational conclusion was TMA and a deliberate effort to remove the mother from their lives.

What are the implications?

The Court was clearly right in its 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 child abduction was overwhelming. This was only exacerbated by the transnational marriage abandonment.

Unfortunately, the family’s situation does not immediately change as a result of this finding. The matter will now go to a welfare hearing to decide what is in the best interests of the children. Evidence of the abduction and the harm caused by the separation will no doubt feature heavily, but it remains to be seen how and when the children will be reunited with their mother.

How we can help

If you believe that your children are at risk of being taken to another country, you should seek urgent legal advice. Our team of specialists child abduction lawyers can assist you. Please contact us on 020 7482 8446 and ask to speak to Serena Sandhu or Ryan Caddell. You can also contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811