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YZ v Leicester City Council & Ors [2018] EWHC 2262 (Fam)

Application by a father to discharge a care order pursuant to s.39 of The Children Act 1989.

The case concerned four children – MHS (aged 12), KS (aged 11), AS (aged 9), and HS (aged 7) – who were made the subject of care orders on 9 December 2016 and placed in long-term foster care. The judgment in respect of those proceedings may be found at [2016] EWHC 3177 (Fam) and indicates that one of the principal bases for the court approving the "extremely unusual" care plan of long-term foster care was the parental antipathy and the conflict between them post-separation [6].

Subsequent to those proceedings, the father obtained employment and his own accommodation, undertook the recommended counselling, and attended various parenting courses. The current proceedings concerned his application to discharge the care orders in respect of all four children, which was opposed by the local authority (Leicester City Council), the mother, and the Children's Guardian. 

Having reviewed the evidence of the father, the social worker and the Children's Guardian, the court held that the father had not made sufficient changes in his views from those that he held in 2016 to warrant the discharge of the care orders. Keehan J cites ten reasons why he came to that conclusion, which can be summarised broadly as the father's continued antipathy towards the mother (and her partner) and his failure to work effectively with professionals [14]. Further, the court found that discharging the care orders and/or placing the children in their father's care would not be in their best interests; the children needed better than "good enough" parenting [15], and the court held that the father would not be able to provide this. The Judge dismissed the father's application on the basis that it had no merit, and did not regard a further assessment of the father to be necessary.

In addition to the father's substantive application, the Guardian queried in her report whether the court should, of its own motion, make an order pursuant to s.91(14) of the Children Act 1989 preventing either parent from making further applications to the court in respect of the children save with the permission of the court. After reminding himself that a s.91(14) order is "a draconian order only to be made on rare circumstances and for very cogent reasons" [18], Keehan J did not think that it was appropriate for such an order to be made in these proceedings; however, he warned all of the parties that if an "unmeritorious application" was made in the case subsequently, it was "very likely" that the application would be summarily dismissed and a s.91(14) order made.

Summary by Bianca Jackson, barrister, Coram Chambers
_________________________

IN THE FAMILY COURT AT WORCESTER
Neutral Citation: [2018] EWHC 2262 (Fam)

Case No:  LE18C00283

Courtroom No. 1

The Shire Hall
Foregate Street
Worcester
WR1 1EQ

Thursday, 19th July 2018


Before:

THE HONOURABLE MR JUSTICE KEEHAN


B E T W E E N: 

YZ
Applicant
and
LEICESTER CITY COUNCIL First Respondent
and
WX Second Respondent
and
MHS, KS, AS AND HS (Children by their Children's Guardian)
Third – Sixth Respondents

MISS J LATTIMER appeared on behalf of the Applicant
MR J CLEARY
appeared on behalf of the Respondent Mother
MR J PICKEN
appeared on behalf of the Respondent Local Authority
MRS J BACON
appeared on behalf of the Children through their Guardian

JUDGMENT
(APPROVED)
This Transcript is Crown Copyright.  It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.

This judgment was delivered in private.  The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.
 
MR JUSTICE KEEHAN:
Introduction
1. This judgment should be read with the judgment I gave in this matter on 9 December 2016 reported under Neutral Citation number [2016] EWHC 3177 (Fam).

2. I am concerned with four children: MHS who was born on 29 June 2006, and so is 12 years of age; KS who was born on 15 July 2007 and who is 11 years of age; AS who was born on 5 May 2009 and is nine years of age, and HS who was born on 27 August 2010 who is seven soon to be eight years of age.

3. This is an application by the children's father YZ for a discharge of the care order made in 2016.  His application is opposed by the local authority Leicester City Council, by the mother WX, and by the Children's Guardian.  The mother had made an application for contact but no longer pursues that at this hearing on the basis of proposals now put forward by the local authority, albeit late in the day.

The Law
4. Pursuant to s.39 of The Children Act 1989 a court may, on the application of a parent, consider the discharge of a care order if it is in the welfare best interests of the children to do so.  I have regard when considering this application to the provisions of s.1(1) of the 1989 Act, namely that the children's welfare interests are the courts paramount consideration and I have regard, where relevant, to the provisions of s.1(3) of the 1989 Act: the welfare check list.  I have regard to the Article 6 and Article 8 rights of the father, the mother and of the children, but I bear in mind where there is tension between the Article 8 rights of a parent, on the one hand, and of the child, on the other, the rights of the child prevail, Yousef v. The Netherlands [2003] 1 FLR 2010. 

5. When considering this application, I remind myself that the burden or proof is on the father and the standard of proof is the simple balance of probabilities.

The Background
6. This matter has a very long litigation history.  It is set out extensively in my judgment of 2016 and I do not propose to read it into this judgment.  For the purposes of this judgment I just simply read the following passages from the conclusion, starting at paragraph 127,

'The father is to be given credit for the steps he has taken on the advice of Dr Freedman.  It has not been sufficient unfortunately to address or resolve the father's deeply held and admitted views about the mother.  If the children are placed with him I am in no doubt that each of them will suffer further significant emotional harm as a result of the continuing parental conflict.  The evidence is clear that the wholly negative views of the paternal family about the mother remain completely unchanged, their antipathy towards her is as deep and as enduring as it has been over the whole history of this case.  Although the father has taken some steps to put some geographical distance between him and his family and to gain some financial independence from them, it is clear to me that the emotional and psychological ties are as close as ever.  I entirely appreciate the placing for such relatively young children in long-term foster care is an extremely unusual course for a court to endorse.  Most especially where the need arises from parental antipathy and conflict post-separation.  In these circumstances I have given the most anxious consideration as to whether this result can be avoided.  I am very alive to the fact that the children are likely to respond adversely if they are to be told they are not returning to the care of their mother or father.  There are risks for such young children remaining in the care system for the remainder of their minorities.  A social worker will always be involved in their lives.  There will be regular LAC reviews.  Their foster placements may break down and/or their respective foster carers may no longer care for them.  Albeit the children are separated into two foster placements I am satisfied that given the immense experience and dedication of both sets of carers especially with the familial connection and the long history of fostering within this family.  The children will be provided with the most secure stable and loving care that could be capable within local authority foster care.  Both sets of foster carers are plainly a very special and scarce resource within the care system.  I have taken into account the considerable distress the children will suffer upon knowing they are to remain in long term foster care along with all the attendant potential disadvantages of being a child in long-term foster care.  I am in no doubt whatsoever that the children will inevitably suffer greater emotional harm if they are returned to the care of either the mother or the father than if they remain with these quite excellent carers in long-term foster care.  This outcome is not only a proportionate response to the risks of harm the children would otherwise suffer.  It is the only proportionate outcome which means their welfare best interests'.

7. What has occurred since that judgment in 2016?  All four children have remained in their respective foster placements.  They have become more settled and secure in those foster placements.  I am pleased to hear in evidence that notwithstanding they are in two separate but connected foster homes, all four children consider themselves to be one unit.  The children are about to embark upon the much needed and long awaited therapy that all four of them require. 

8. The mother has continued in her relationship with her partner Mr B and she gave birth to their daughter on 20 June last year.  Notwithstanding the adverse findings made against the mother in my judgment she has retained the care of her baby daughter.  She continues, and on occasions her partner attends, to have contact with all four children: this is progressing positively.  I am pleased to hear that the local authority is proposing that the mother's contact and indeed the father's contact will now progress into the community and out of a contact centre which I have no doubt will be to the inevitable benefit of all four children. 

9. The father has obtained employment and secured his own accommodation.  He has pursued and undertaken the counselling recommended by Dr Freedman and he has attended various parenting courses.  He has, he told me, reflected carefully over his role in the children's lives and on my judgment.  He asserts that he has made sufficient changes such that the point has now been reached where the children can and now should return to his care.

The Evidence

10. I heard oral evidence from the Children's Guardian, from the social worker and the father.  No party required the mother to give evidence.  The guardian told me that she did not consider that the father had made sufficient changes albeit she acknowledged he had made some changes, such that it would be in the welfare best interests of the children to return to his care.  She told me that the children though absolutely delightful are not easy to care for and the four of them have various competing needs.  In her professional judgement which I accept, these children need better than good enough parenting.  It was the guardian's view that the father as a single working parent would not be able to meet the competing needs of all four children and would not be able to manage to care for all of them.  The guardian very much doubted that the father would work openly and co-operatively with the local authority.  Importantly, she told me that if the children were returned to either parent it would be impossible for them to have a positive relationship with the other parent such remains the antipathy and difficulties in the relationship between the parents.  Further, she told me that when she asked the father what would happen, for example, if say KS wished to live with her mother he immediately responded, 'that could not happen'.  Finally, the guardian told me that the children's long awaited therapy will be a piece of very sensitive work for each child which would ideally be undertaken when the children are in a neutral environment.  She told me it would be very difficult for the children to undertake this therapy productively if they were in the care of one or other of the parents, because of course part of this therapeutic work is to examine and consider with the children the role hitherto played in their lives and in their care by the mother and by the father.  The guardian considered that the social workers assessment of the father was clear and comprehensive. 

11. The social worker in her evidence echoed much of what was said by the guardian.  She told me that she had encouraged the father to play an active role in the planning of the assessment that she undertook of him, to identify any gaps that there might be in her assessment of him.  In relation to the father recording her sessions, the social worker was clear that she had asked the father whether he was recording the session and he had told her he was not.  In cross-examination the social worker characterised the father's substantive changes as paying lip service to what was required of him rather than a change in his essential standpoint and views. 

12. In relation to the children and their wishes, particularly MHS who would want to return to his father's care, but also taking into account the other three children who have from time to time expressed a wish to return to either their mother's or their father's care.  The social worker was invited to consider the balance of harm between returning the children to the care of the father as opposed to them continuing to remain in long-term foster care.  The social worker had no hesitation in telling me that the greater harm would befall the children if their wishes and feelings to return to a parent were listened to than if they remained in foster care. 

13. The father told me that he had reflected long and hard on his actions and conduct.  He told me that his coaching of the children and his approach towards the mother and her family was wrong and he recognised that it had harmed the children.  He asserted that he was of the view that he was now in a position where he could meet the needs of all four children and that he could cope with looking after them even whilst they were undertaking what he recognises is essential therapeutic work with all four. 

Analysis

14. In considering this application I take particular account of whether the father has made changes and secondly, the children and their needs.  First, in relation to the father, I accept that he has made changes.  I accept that he has sought to improve and change his reaction and view of the mother and of her partner and has done so in the interests, as he sees it, of the children.  His progress and change were described by his counsel as a work in progress: this strikes me as entirely accurate.  I regret to find, however, that the father's changes have not affected his essential thought processes and views.  I come to that conclusion for the following 10 reasons:

a. he accepted he had covertly recorded his assessment sessions with the social worker and told me that he saw no reason why he should tell the social worker he was doing so.  That does not in my judgement give evidence of somebody who has carefully reflected on their approach or who is able in the future to work cooperatively with professionals;

b. it is recorded in some of the contact notes that on occasions the father has continued to whisper to the children in contact when he knows full well he must not;

c. he adopts and maintains a position of 'point scoring' in his approach to the mother;

d. he maintains the view that the mother caused greater emotional harm and psychological harm to the children than he did;

e. as noted by the independent reviewing officer during the course of LAC reviews the father has exhibited visibly hostile body language to the mother;

f. ideally the father would not wish the mother's partner Mr B to have contact with the children even though he knows the children like Mr B and like seeing him.  Of concern he told me, that he harbours fears that the children are concerned about seeing the mother's partner when there is no objective evidence at all, of any such concern;

g. he maintains the view that his instruction of a private detective to undertake surveillance of the mother in 2013 was the right thing to do;

h. for no obvious good reason he failed to attend the last LAC review earlier this month.  He said her forgot because he was so busy, but he could not explain why he had failed to reply to a text from the social worker reminding him of the review;

i. when asked by the guardian how he would respond if KS, for example, wanted to live with the mother, his immediate and unequivocal response was this could not happen; and

j. he accepted that if the mother had not retained the care of her new baby he would not have made this application to discharge the care order.  If any more evidence were required of the father maintaining his point scoring approach to the mother, this is no better example.

15. The children are I am told, and I accept, settled in their respective foster placements albeit that one or more of them have expressed the view from time to time that they would rather be in the care of one of their parents.  It is of note, however, that they do consider that they are one unit even though they do live in two separate foster places.  They are as I have said about to commence therapy this will be difficult and sensitive work.  I accept the evidence of the guardian that it would be very difficult for the children to undertake this therapy if they are in the care of a parent.  It would provide them with a clear conflict of loyalties between speaking freely to their foster carer or other neutral figures and feeling unable to speak to their caring parent about matters that have arisen during the course of therapy.  I accept the guardian's opinion and conclusion that it would be impossible for the children to have a positive relationship with one parent if they were living with the other parent.  These children delightful though they are, are not easy to care for.  I accept that they need better than good enough parenting.  I am satisfied on the totality of the evidence that the father, as a single working father, could not manage nor meet the competing needs of all four children if they were in his care.

Conclusion

16. I am satisfied that the father has not made sufficient change in his essential views from those which he held in 2016 to merit the discharge of the care orders.  I am also entirely satisfied that discharging the care orders and/or placing the children in their father's care would be wholly contrary to their welfare needs.  I am satisfied that this application for discharge has no merit accordingly the application is dismissed. 

17. The father did ask me to consider as part of my judgment whether there should be a further assessment of him because of what were alleged to be gaps or inadequacies or a bias on the part of the social worker undertaking the assessment.  As will be clear from what I have previously said in this judgment, I am entirely satisfied with the assessment undertaken by the social worker was completely balanced and fair.  I accept the evidence of the social worker that she approached the father with an open mind and that it is as described by the guardian a comprehensive piece of work.  The mother did not pursue her application for contact at this hearing.  That application must either be withdrawn or dismissed.  I have indicated to all counsel that any future applications in this case concerning these children are reserved to me. 

18. The guardian in her report raised the issue of the court making of its own motion an order pursuant to s.91(14) of the 1989 Act namely, that neither parent can make further applications to the court in respect of the children save with the permission of the court.  I remind myself that a s.91(14) order is a draconian order only to be made on rare circumstances and for very cogent reasons.  This matter does have in the private law context, a very long litigation history as was set out in my judgment of 2016.  Aside from the father seeking permission to appeal my judgment last year, there have been no further applications made by either parent until the father's application to discharge the care orders in January.  On behalf of the local authority, in support of the suggestion of the guardian that the court make a s.91(14), Mr Picken reminds me that the court is also entitled to make such an order notwithstanding the absence of vexatious litigation by a parent, in circumstances where it is said the welfare of the children demands stability and peace from litigation.  I entirely accept and understand that the court has the power to appropriately make a s.91(14) order in these circumstances. I am not persuaded, however, that it would be appropriate at this stage, in this case, to make a s.91(14) order.  I give fair warning that if any party makes what I consider to be an unmeritorious application in this case hereafter, it is very likely that such application will be followed with summary dismissal and with the court making a s.91(14) order.  For the present I am satisfied it is in the welfare best interests of the children that if any further applications are made, they should come before me for a consideration of whether they should be summarily dismissed or whether they are of merit, such that the matter should go forward.

End of Judgment


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