The full name of this case is Warwickshire County Council v the Mother and the Father and X and Z. It appears on TNA as Warwickshire County Council v the Mother & ors [2022] EWHC 2146 (Fam). It’s also on BAILII here – which conveniently includes links to the case citations, something TNA still seem to be working on.

The judgment is dated 8 August 2022, following a hearing on 18 July, and is given by Mrs Justice Lieven, who summarises matters in the first paragraph:

These are care proceedings brought by the Local Authority, Warwickshire County Council (‘LA’), in respect of two girls, ‘X’ aged 10, and ‘Z’ aged 12. The issue covered in this judgment is the consequences of parental alienation and whether an Interim Care Order (‘ICO’) in respect of Z should be continued in the light of her implacable hostility to her placement, and the highly detrimental impact that the interim care plan and her current situation is having on her welfare.

It’s a long judgment of 104 paragraphs, including a summary of the convoluted history of attempts by the courts and various professionals to maintain a relationship between these two children and their father.

Private law applications began in 2019. The LA children’s services had become involved in mid 2020 and following pretty intensive input under Child in Need plans and subsequent Child Protection Plans, care proceedings were issued in May 2022. The father, the LA, and the Cafcass guardian were all argung that the ICOs should continue. Z, through her own lawyer, was saying she wanted her ICO to be discharged.

Lieven J accepted earlier findings in the Family Court that X and Z had been alienated from their father by their mother. That’s why the situation is described as one of alienation in the first paragraph. Despite this, Lieven J (who held three hearings in June and July and is very familiar with the case) has now decided that it is in Z’s best interests to be moved from her foster placement back to her ‘alienating’ mother. X is apparently settled with her father, after a brief period in foster care. At the point of this High Court hearing, Z had been separated from her mother and sister for nearly five months. The judge concluded that the most appropriate course, taking account of all considerations, was to ask the LA to amend the interim care plan so that Z could go home to her mother immediately; otherwise she would make an interim supervision order allowing Z to be with her mother.

The case law relating to parental alienation

As the judge says, the few published judgments where parental alienation is taken seriously by courts in England and Wales are especially fact specific. It’s not necessarily helpful to try to trawl through them looking for guidance. I’ve tended in recent months to rely on Peter Jackson LJ’s overview of the principles set out in a case called Re S (Parental Alienation (Cult)[2020] EWCA Civ 568 – on BAILII here.

So I was glad to see that Lieven J did exactly that. In fact, at para 66, she quotes 12 substantial paragraphs from that judgment. Re S itself was an extraordinarily fact-specific case where the child’s mother had become an adherent of a dangerous belief system, ‘Universal Medicine’ which was causing her and her daughter psychological damage and resulted in the court transferring residence to the father. It’s rare to see a case where alienating behaviours by a parent so clearly create an unsafe environment that the child has to be removed. Nevertheless, this Court of Appeal guidance on the law is comprehensive and generalisable, whatever one’s opinion may be of the pro-contact culture in our courts, identified in the Harm Report.

As the judge explains:

I have set out this very full extract, because it encompasses the law in this area, and the difficult balances that have to be drawn. Each case must essentially turn on its own facts, and the need to have the child’s welfare interests as the paramount consideration [67].

The Warwickshire case is focused on X and Z’s welfare – there’s no general guidance here but there are a number of points of interest:

Apparent breach of the children’s privacy on social media

In the context of strict family court reporting restrictions, it was startling to read:

35. On 14 February to 17 February 2022 there was 4 day fact finding hearing at Coventry Family Court before HHJ Watson… she made no findings against the Father but did make findings in relation to parental alienation against the Mother. As a result of the findings, a Child Arrangements Order (‘CAO’) was made … [placing the children with the father]

36. On the same day as the judgment was given, a ‘Help Save X and Z’ social media page was set up. This page included a picture of the Father along with his work details, a photograph of the ISW and her work details, a photograph of the social worker and her work details and a copy of the letter which HHJ Watson had written to X and Z explaining her judgment to them.

However, the judge makes absolutely no comment on this, so we don’t know who was responsible, and what if any action was taken to protect the girls’ identities.

The next incident recited is their breaking a first floor window at their father’s house and wandering the roads until taken into police protection in the early hours of the morning. This led to the children moving to foster care under section 20 in March. X returned to her father shortly afterwards but Z remained in foster care. ICOs were applied for in May.   

Information from earlier proceedings

Unfortunately HHJ Watson’s judgment is not published, so we don’t have much insight into why she rejected the mother’s allegations and accepted most of the father’s. However, Lieven J gives a boost to transparency and public understanding of the judicial reasoning by quoting the findings made by HHJ Watson about the allegations and cross allegations, and the orders made, in full (at para 62-63). She adds:

It is important I make clear that I have read HHJ Watson’s judgment with care and I do not and would not in any event be in a position to disagree with any of her conclusions. She heard both parents and reached clear conclusions about their conduct. There are passages in her judgment where it is apparent that the children had had a good and close relationship with their father in the past.[64]

There’s a range of views amongst family court stakeholders about how useful or appropriate it is to publish fact-finding judgments in private law cases, but they rarely are. It’s therefore helpful to be able to relate X and Z’s current situation to the earlier decisions made – to some extent.

We’ve had some concerns recently that expert witnesses have not been named in judgments. It’s positive here that Lieven J names the many professional and expert witnesses in the case and gives credit to all of their efforts to help these children and their parents.

X and Z’s human rights

First, it’s very reassuring to see the credibility the judge attributes to Z’s own views. She notes that the Cafcass guardian deemed Z competent to instruct her own lawyer and that the very experienced solicitor then appointed agreed. Z was refusing to undergo a further psychological assessment and the judge gave considerable weight to her views, following guidance in case called Re CS (Sufficiency of Child’s Understanding) [2019] EWHC 634.

Although the judge does not mention the UNCRC, she has respected Z’s rights of participation under Article 12. Too often we hear that there is no point listening to a child who has been ‘brainwashed’ by an alienating mother.

The judge also applies a detailed analysis of X and Z’s ECHR Article 8 rights to respect for their family life with their mother, father and each other. This included the problem that Z had, through all the circumstances, been effectively deprived from contact with her mother, sister and friends. Because  she refuses to see her father, she had no family life at all, something that troubled the judge greatly. There were reservations about the effects on X if Z moved back to their mother, but under the welfare principle in the Children Act 1989 the judge could not make a decision which would not be in Z’s welfare interest, just because of the impact it might have on her sister.

Conclusion

This judgment is unusual, in departing so far from almost all the submissions on behalf of the parties (apart from Z herself). However as Lieven J observes:

100. in some cases there is no solution to a problem, only a choice between two not good outcomes, and the need to choose the least worst outcome. What might be characterized as choosing the course which is less stressful for the child could alternatively be described as taking into account and giving appropriate weight to the child’s wishes and feelings.

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