Re H [2022]EWFC 10: Guidance in Learning Disability Cases

This is a post by regular contributor, Abigail Bond. Abigail is a barrister at St John’s Chambers, Bristol who specialises in Children Law (mainly care proceedings), and Court of Protection health and welfare matters. She tweets as @AbigailBond1. 

1. The Good Practice Guidance for working with parents with a learning disability was first published in 2007 by the Department of Health / Department for Education and Skills. Fifteen years and two revisions later, awareness of it remains patchy. In Re H [2022] EWFC 10 (19 January 2022), where the mother’s learning disability was a central feature of the case, the children’s social worker admitted that she was unfamiliar with the Guidance. At the invitation of the Official Solicitor, Mrs Justice Knowles concluded her judgment at paras. 105-108 with the following learning points for care cases where a parent has a learning disability:
   • First, the Good Practice Guidance (amended in 2016 by the Working Together with Parents Network and more recently in 2021), must be an essential part of training for children and family social workers, adult social care workers and their team managers, and should be more widely disseminated. In care cases involving a learning disabled parent, the local authority must be able to show how it has taken the guidance into account in its care planning and proposals.
   • Secondly, a learning disabled parent of a child on a child protection plan must be referred promptly to adult social care. 
   • Thirdly, a learning disabled parent of a child on a child protection plan must be referred promptly to an advocacy service and allocated their own advocate as a priority.
   • Fourthly, a learning disabled parent involved with children’s social care must be given two documents : (a) one, setting out what support is available to them in their own right, how often it is available, the time-scales for its availability and who is responsible for its delivery; and (b) another, setting out what support is available to them with the care of their child , how often it is available, the time- scales for its availability and who is responsible for its delivery. Both documents must be shared with children’s and adult social care as part of the joined- up thinking that is required in these cases.

2. Baby H was the subject of applications by the local authority for care and placement orders. The mother and the father were of Romanian origin and neither of them had acquired the right to means-tested benefits because they had not been in the UK for five years (they needed this to qualify for Universal Credit). The father worked to provide for the family but they had considerable rent and council tax debts and were facing eviction. Baby H came to the attention of the local authority very shortly after his birth, when hospital staff were concerned that even when spoken to in her own language, the mother seemed to struggle to take on board medical and nursing advice. Following a short and unsuccessful residential assessment, the local authority obtained the court’s approval to place the baby in foster-care pending the final hearing.

3. The judgment undertakes an exemplary holistic analysis of the available options and reaches the sad conclusion that the care and placement orders must be made. The Judge was reassured that the child’s Romanian heritage would be promoted and that, if the adopters were willing, annual direct contact would take place between the baby and his parents. 

4. Despite the social worker’s lack of familiarity with the Guidance, the judge was nonetheless satisfied that the assessments had been fair, enabling and comprehensive, providing ‘everything that could have been sought on behalf of a parent with learning difficulties.’ However, this had not been her conclusion back in November 2021, when she adjourned what was intended to be the final hearing so that the Local Authority could remedy a gap in the evidence by undertaking an assessment of whether the father could understand and compensate for the mother’s difficulties.

5. Further detail about the nature of the assessments is set out below for the assistance of those who may be involved in similar cases in the future:

• A cognitive and capacity assessment of the mother was ordered at an early stage of the proceedings. That assessment was undertaken by a clinical psychologist and found that the mother’s overall level of cognitive ability fell within the extremely low range, with her assessment score suggesting a ‘significant and severe impairment of intellectual functioning’ which was unlikely to be resolved. A PAMS-type parenting assessment was recommended, and it was stressed that the mother’s participation in the proceedings would be best achieved by her having the same interpreter throughout. As a result of the finding that the mother was unable to understand, retain, or weigh up information about these proceedings, the Official Solicitor was then invited to act as her litigation friend. 

• A specialist learning disability assessment of the mother was undertaken by a very experienced family support worker and former social care worker, who over the course of 20 weeks used pictorial aids, worksheets and practical role modelling to teach and re-teach parenting tasks. The same interpreter was present throughout. Importantly, the family support worker liaised closely with the contact supervisor, sharing worksheets, methodology and feedback with him, so that he could assess the parents’ ability in contact to retain what they had been taught. The father, who attended for some joint sessions with the family support worker, was able to retain and demonstrate his learning. The mother struggled to do so, eg trying to pour boiling water from a kettle out of the open lid rather than the spout, telling the father he was filling the baby bottle incorrectly even though he was following the worker’s advice.

• In addition, there was a comprehensive joint assessment undertaken by the children’s social worker and the mother’s adult social care worker following the earlier adjournment. This focussed on the father’s understanding of the mother’s difficulties and the risks she presented to H, his understanding of the support available from children’s and adult social care, what that would entail for the family, and his willingness to engage with it. This assessment also concluded negatively. The mother struggled in her own right with preparing food, managing appointments, attending health appointments, accessing community resources, shopping, laundry, the care of the home, and being emotionally supportive. She was already receiving help with benefits, housing and health issues through an organisation called Brighter Futures but adult social care could also refer her to the ‘maximising independence team’ for short-term assistance with learning and practising these skills. Despite this, the father vacillated from session to session about whether the mother needed any help and whether he would accept it. He had told the Guardian that her only difficulties were that she could not tell the time and that she was unable to organise a routine. By the time of his oral evidence, he was adamant that when he worked for five or six days a week, the mother could care for the baby and that he would be safe with her.

6. The court left no stone unturned in considering what support could be made available to the family to enable the baby to be cared for at home. It concluded, however, that since neither parent accepted that there were deficits in the mother’s ability to care, there was a serious risk of H’s needs being neglected no matter what support was put in place. Notably, in referring to the financial difficulties experienced by the family, the court emphasised that financial reasons alone are not sufficient justification to separate a child from his parents.  Had this been the only issue, the Judge would have adjourned for the local authority to provide further information about what support and assistance was available to the parents in that regard.

Feature pic : courtesy of Isobel Williams, with thanks

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