Should a disability prevent someone being a good parent? Is vulnerability the same as disability? What does the family justice system do to protect the rights of the disabled person to be a parent and of the child to be adequately parented? How can a vulnerable parent be helped to ensure their voice is heard in court? Beyond the court room, what about families’ needs for ongoing support? Do we make a difference in society where it really counts?

These were the questions discussed by Jo Delahunty QC, Gresham Professor of Law, in a talk at Barnard’s Inn Hall in London, on 1 February 2018. You will soon be able to obtain the detailed lecture notes via the Gresham College website, or you can watch the lecture video on YouTube. The following account highlights the key points and the cases cited.

1. Should disability prevent someone being a good parent?

Parents should not expect – not should they be expected – to be perfect. As Mr Justice Hedley said in an oft-quoted passage from Re L (Care: Threshold Criteria) [2006] EWCC 2 (Fam); [2007] 1 FLR 2050, at [50]

‘Society should be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting.’

The family justice system in NOT in the business of social engineering. It should be to ensure children can remain in their birth family unless there is too much of a risk that they will suffer harm or neglect.

This applies not only to learning disability but to other types of disability as well. Physical disability may be easier to assess but should anything without an obvious physical signpost be any less significant?

As Mr Justice Baker said in Kent County Council v A Mother (Re X, Y, Z (Minors)) [2011] EWHC 402 (Fam), para 132:

The last thirty years have seen a radical reappraisal of the way in which people with a learning disability are treated in society. It is now recognised that they need to be supported and enabled to lead their lives as full members of the community, free from discrimination and prejudice. This policy is right, not only for the individual, since it gives due respect to his or her personal autonomy and human rights, but also for society at large, since it is to the benefit of the whole community that all people are included and respected as equal members of society. One consequence of this change in attitudes has been a wider acceptance that people with learning disability may, in many cases, with assistance, be able to bring up children successfully. 

The Equality Act 2010 imposes a duty on local authorities to make reasonable adjustments so as to eliminate discrimination and advance equality of opportunity.

In Re D (A Child) (No 3) [2016] EWFC 1, para 117, the President of the Family Division, Sir James Munby, said (of parents with learning difficulties):

What such parents need, they submit, is that a reasonable adjustment is made for the deficits in their parenting which arise from their own inherent difficulties rather than from neglect or failure or indifference. The fact that such adjustments are made, and that such parents may be receiving a high level of help and support, does not, they say, mean that they are not bringing up their children. Why, they ask rhetorically, should it be any different for these parents with their difficulties?

The problem is that parents with learning disabilities or difficulties are often expected to fail or their need for help is not visible or asked for. There is a cycle of poverty – vulnerability – disability which can lead to a perceived risk of neglect, as Mr Justice Gillen explained, in a passage cited by the President in Re D (No 3), in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8, para 5:

Children of parents with learning difficulties often do not enter the child protection system as the result of abuse by their parents. More regularly the prevailing concerns centre on a perceived risk of neglect, both as the result of the parents’ intellectual impairments, and the impact of the social and economic deprivation commonly faced by adults with learning difficulties. It is in this context that a shift must be made from the old assumption that adults with learning difficulties could not parent to a process of questioning why appropriate levels of support are not provided to them so that they can parent successfully and why their children should often be taken into care. At its simplest, this means a court carefully inquiring as to what support is needed to enable parents to show whether or not they can become good enough parents rather than automatically assuming that they are destined to fail.

So the answer to the first question is, no. Such disability should not prevent someone being a good parent, but they need help and support just as those with physical disabilities do, to avoid discrimination.

2.  What disabilities does the court encounter? Is vulnerability the same as disability?

In his keynote speech to the Family Law Bar Association conference in November 2017, Do the vulnerable have effective access to family justice? [2018] Fam Law 36, Mr Justice Cobb pointed out that:

Vulnerability is not a homogenous concept – it manifests in many forms. Some exhibit their vulnerability visibly and unmistakably; others subtly, silently and discreetly. There are those whose vulnerability is defined by their age (children and the elderly), or mental incapacity. 

Lawyers need to inquire of their clients what needs they might have. The Inns of Court have provided some toolkits to help identify and assess forms of vulnerability in witnesses and defendants. Sometimes these can be combined.

Delahunty gives an example of a case, which she was hearing as a recorder (a part time judge) involving a deaf, Bengali, learning disabled parent with pronounced mental health problems. That meant factoring in translation from English into both sign language and Bengali, among other practical problems

3. What does the family justice system do to protect the rights of the disabled person to be a parent and of the child to be adequately parented?

Vulnerability needs to be recognised before it can be addressed.  Good Practice Guidance has been issued by the government, in successive editions since 2007, as to the help and support which local authorities should provide, to enable children to live with their parents, as long as this is consistent with the children’s welfare. Yet there has been repeated failure to apply it, prior to its relaunch in 2016.

Mr Justice Baker commented on this back in 2011 in Kent County Council v A Mother (above), at paras 133-134:

The 2007 guidance points out, inter alia, that a specialised response is often required when working with families where the parent has a learning disability; that key features of good practice in working with parents with a learning disability include:

(a) accessible and clear information,

(b) clear and co-ordinated referral and assessment procedures,

(c) support designed to meet the parent’s needs and strengths,

(d) long-term support where necessary, and

(e) access to independent advocacy; that people may misunderstand or misinterpret what a professional is telling them so that it is important to check what someone understands, and to avoid blaming them for getting the wrong message; that adult and children’s services and health and social care should jointly agree local protocols for referrals, assessments and care pathways in order to respond appropriately and promptly to the needs of both parents and children; and that, if a referral is made to children’s services and then it becomes apparent that a parent has a learning disability, a referral should also be made to adult learning disability services.

The guidance also stresses that close attention should be paid to the parent’s access needs, which may include putting written material into an accessible format, avoiding the use of jargon, taking more time to explain things, and being prepared to tell parents things more than once.

In practice, there is little evidence of effective joint working between adult and children’s services, and practitioners in each area rarely have a good working knowledge of the policy and legislative framework within which the other is working.

4. How can a vulnerable parent be helped to ensure their voice is heard in court?

Going to court is stressful, for anyone. But it’s worse for someone who has difficulty even getting to court, let alone understanding what happens when they get there. If they cannot participate, they cannot get justice.

In November 2017 a new practice direction, PD 3AA came into force, supplementing Part 3A of the Family Procedure Rules 2010. Its purpose was

1. To set out the court’s duties and powers in relation to assisting parties whose ability to participate in family proceedings may be diminished by reason of their vulnerability;
2. to assist parties and witnesses in family proceedings where the quality of their evidence is likely to be diminished by reason of their vulnerability.

The tools available to help in that process include the Toolkits provided by the Inns of Court College of Advocacy via the free access Advocates Gateway, including one on Ground Rules Hearings and the fair treatment of vulnerable people in court

The purpose of a ground rules hearing or GRH is to establish how someone who has communication needs, or is otherwise a vulnerable person, should be enabled to give their best evidence or otherwise participate in the trial.

Among the recommendations which could be made with the help of an expert or an intermediary are:

• Using clear, concrete language
• Using simple, everyday words and phrases
• Not jumping about in time
• Asking questions slowly and allowing time to answer
• Avoiding front-loaded questions
• Not making long speeches
• Not tricking or ambushing a witness.

The particular communication needs will vary from individual to individual.

Further advice is contained in the Achieving Best Evidence (ABE) Guidance published by the Ministry of Justice.

5. What happens beyond the court room?

Families affected by parental learning disability are likely to have an on-going need for support. There is no perfect ending to their stories. The difficulties can be lifelong. Vulnerability can also arise or be worsened by adverse expectation. The language used by professional can be a barrier.

Jo Delahunty (thanking Sarah Phillimore for pointing it out) quotes an illuminating comment in a guest article by a parent on the Child Protection Resource website, Families who need support and the language of ‘casual disrespect’:

Would anyone have thought it OK to refer to my family in a one-to-one conversation with me as a ‘challenging family’ needing ‘Intervention’ and if most would not, then why is it OK to refer families like mine, in this casually disrespectful way? Is it OK because parents of children in need of services are not meant to be listening into this intense conversation or is it that our opinions just do not matter or that we are not expected to have anything of value to contribute unlike the great and the good and the well-intentioned? Or is it that people are afraid of what we might say? Are we that much of a challenge and to whom and what exactly? The only fixed point in this shifting landscape of service provision seems to be to regard families in need of services as, at best, incompetent and in need of an ‘intervention’.

We have been exhorted by the new Lord Chief Justice, Lord Burnett to ‘work together to ensure that justice is at the centre of our society; to secure access to justice for all, whatever their means or abilities’.

And, as Mr Justice Cobb said in his FLBA conference speech,

‘We have a duty to recognise the fragility and vulnerability of the many who seek access to justice in these difficult times and circumstances’. In order to deliver effective justice ‘we must continue to remove the impediments to their routes of access to justice, to innovate, and position the vulnerable at the centre of our practices now and in the future.’

LOOKING AHEAD

Jo Delahunty’s next lecture in the series will be: Dealing with Sex Abuse: How does the family justice system confront these emotive and complex cases? On 1 March 2018.

Another interesting Gresham College lecture will be that of Joshua Rozenberg on recent developments in the development of the Online Court, in Justice Online: Getting Better?  which takes place at the Museum of London by the Barbican on 20 February at 6pm.

Minor edits were made to this post on 4 February 2018.