YZ v Leicester City Council & Ors

An application by a parent to discharge a care order under Children Act 1989, s 39, is determined by the children’s welfare. The applicant bears the burden of proving, on the balance of probabilities, that discharge is in their welfare best interests. The court must assess both the applicant’s changes and the children’s needs, including the effect of continuing parental conflict and the suitability of proposed care. A parent’s partial progress is insufficient where the essential attitudes creating risk have not changed. A restriction on further applications under s 91(14) is exceptional and requires rare circumstances and cogent reasons.

The applicant father sought discharge of care orders made in 2016 in respect of four children. The application was opposed by the local authority, the mother and the children’s Guardian. The children had remained in long-term foster placements, while the father had obtained accommodation, employment and counselling and argued that he had changed sufficiently for the children to return to his care.

The central issues were whether the father had made sufficient changes, whether discharge would meet the children’s welfare needs, whether any further assessment was required, and whether the court should make a restriction on further applications under s 91(14) of the Children Act 1989.

1. Application dismissed. The father had not demonstrated sufficient change in his essential views since the care orders were made. His continuing hostility towards the mother, point-scoring approach and inability to contemplate a child living with the mother showed that the underlying risks remained.
2. Under s 39 of the Children Act 1989, discharge depended on the children’s welfare best interests. The court applied the welfare principle in s 1(1), the welfare checklist in s 1(3), and the balance-of-probabilities standard. The children’s welfare outweighed the father’s and mother’s Article 8 interests where those interests were in conflict.
3. The children were settled in foster care and required more than good-enough parenting. Returning them to either parent would prevent a positive relationship with the other and would make their forthcoming therapeutic work substantially more difficult because of conflicts of loyalty. The father, as a single working parent, could not meet their competing needs.
4. The request for a further assessment was refused. The social-work assessment was found to be balanced, fair and comprehensive.
5. The court had power to make an order under s 91(14), even without vexatious litigation, where the children’s welfare required stability and peace from litigation. However, such an order was draconian and appropriate only in rare circumstances and for cogent reasons. The court declined to make one at that stage, but warned that an unmeritorious future application could lead to summary dismissal and a s 91(14) order.

The judgment records that care orders had been made in 2016 in the same proceedings under [2016] EWHC 3177 (Fam). No appellate decision concerning the present application is stated.