The President has issued further guidance on cases involving parents with learning difficulties: President’s Guidance Family Proceedings: Parents with a Learning Disability, 10th April 2018:
He refers to the leading cases: Re D (A Child) (No 3) (2016) EWFC 1: http://www.familylawweek.co.uk/site.aspx?i=ed158421 and Re Guardian and A (Care Order: Freeing Order: Parents with a Learning Disability) (2016) NI Fam 8 (case never reported but the transcript is freely available on the BAILLII website), and the President endorses the Judgement of Gillen J in Re Guardian and A, as he did in Re D (above).
The main aim of this further guidance is to bring to the attention of practitioners and judges and to “commend for careful consideration and application by everyone the DoH/DfES ‘Good practice guidance on working with parents with a learning disability’ (updated September 2016)”:
He also goes onto say it was ‘referred to with approval and applied in: A Local Authority v G (Parent with Learning Disability) (2017) EWFC B94’.
This is an interesting recent Judgment, which gives a slightly different perspective on the application of the case law in this area to date. It was handed down in December 2017 and recently reported in Family Law Week. It is the Judgment of Circuit Judge HHJ Dancey, in which she reviewed the case law to date and helpfully summarised the principles established. She also refers in detail to the DoH/DfES Good Practice Guidance referred to above.
In that case the Judge found that valid criticisms could be made of the way the Local Authority had conducted their assessments (those working with the Mother were not PAMS trained and did not have a protocol implementing the 2016 Guidance referred to above). However, she concluded that in this particular case the Mother “could not safely care for the children on her own and would require a package of support amounting to ‘substituted parenting’. (That) (sic) the Father had not bridged that gap and the prospects of achieving necessary change were remote”.
The Judge also found that it was “unlikely the outcome would have changed with different support because of the fundamental nature of the Mother’s limitations and the Father’s lack of understanding of the need for change. Neither Re D nor the Guidance require local authorities to provide support to the extent that it requires substitute parenting, which would also be the case for Parents with a physical disability”.
This case distinguishes between ‘parenting with support’ and ‘substituted parenting’. Which can be a very difficult call to make in some cases and will no doubt depend very much on the facts of each case.
It is of course a Judgment that does not bind higher courts, but it may well be influential (although not binding) at Circuit level, and also perhaps at a higher court level given that the President is quoting it.
Here is a summary of the Judgment published on FLW. The full Judgment is at http://www.familylawweek.co.uk/site.aspx?i=ed187422.
A Local Authority v G (Parent with Learning Disability)  EWFC B94
Judgment in care proceedings where the mother has a mild learning disability and the parents claimed that with appropriate support they were capable of caring for the children.
This matter concerns three children, A (aged 12), K (rising 3) and T (rising 2). The mother (C) and father (D) were parents to both K and T. A was the biological child of C but had been raised by D following the death of her birth father. The mother had a learning disability and partial deafness in both ears. The father had been her carer since their marriage in 2013.
The local authority sought care and placement orders for K and T. A was already residing with other carers under a special guardianship order, with a supervision order sought to support that. The parents disputed that threshold had been passed and sought the return of the children under a variety of orders, stating that they were able to care for K and T with appropriate support.
The mother had the support of an intermediary and supporting advocate throughout the three week hearing, with two lip-speakers translating for her. Ground rules were put in place and FPR 3A and PD3AA taken into account, as well as the Advocates Gateway Toolkits. An ‘easy read’ judgment was annexed to the main judgment for the purpose of the parents and children.
The judge considered a number of authorities. Re L (Care: Threshold Criteria)  EWCC 2 (Fam) was endorsed in relation to threshold, as were Re SB  UKSC 17 and Re J (Children)  UKSC 9. Re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33, Re B-S  EWCA Civ 1146 and Re R (A Child)  EWCA Civ 1625 were endorsed in particular in relation to the placement application, as well as the point made in Re W (A Child)  EWCA Civ 793 that there is ‘no legal presumption or right in favour of a child being brought up by their natural family’.
With specific reference to the parents’ learning disabilities, HHJ Dancey noted that a court must ensure that a parent is not disadvantaged simply because of their disability. The question is whether that parenting can be good enough if support is provided. Re D (A Child) (No 3)  EWFC 1 and Re Guardian and A (Care Order: Freeing Order: Parents with a Learning Disability)  NIFam 8 established the following principles:
- Parents with learning difficulties can be ‘good enough’ parents when provided with the requisite and ongoing emotional and practical support.
- The idea of ‘parenting with support’ must be the approach taken to parents with learning difficulties.
- Parents with learning difficulties must not lose care of their children on the basis of evidence that would not hold up against parents without such difficulties. Parents with learning disabilities should not be measured against parents without disability and the court must be mindful of the risk of direct and indirect discrimination.
- Multi-agency working is critical to provide effective support and the court has a duty to ensure that this is done.
- Welfare arguments should not obscure the needs of the parent due to the disability and the impact on parenting capacity.
- Courts should ensure that the ‘supposed inability of the parents to change is not … an artefact of professionals’ ineffectiveness in engaging with the parents in an appropriate way.’
HHJ Dancey also relied upon the DoH/DfES ‘Good practice guidance on working with parents with a learning disability’. The Guidance was updated in 2016 and initially intended to address the lack of effective joint working between adult and children’s services. Alongside the appropriate sections of the Care Act 2014, Equality Act 2010 and Human Rights Act 1998, a helpful summary of the Guidance is provided. Although it was argued that local authorities do not have access to the resources set out in the Guidance, the court endorsed the decision in Re B-S that a placement order should not be made unless there is no practical way of the authorities providing requisite assistance and support.
Threshold was found to have been met. HHJ Dancey also found there was ‘considerable force’ in the criticisms made of the local authority’s approach, particularly in relation to the mother and the help offered to her. In particular, the local authority did not have a protocol for dealing with parents with learning disability which was reflected in their approach and which would have focused them upon the Guidance. Those working with the mother should have been trained to deal with parents with learning disabilities. Amongst other criticisms of the local authority it was further found that there had been insufficient focus on a positive strategy of planned support to keep the family together. Finding a solution for the children within their timescales rather than supporting the parents were not mutually incompatible if such support is provided in a ‘timely and efficient manner’, which in this case it was not.
Despite these criticisms, it was found that ‘all the professionals did their best’, and the Guidance and other advice were followed to an extent. There was ‘force’ in the parents’ case that the assessment of them was not fair nor realistic. This argument was however undermined by the fact that the mother could not safely care for the children on her own and would require a package of support amounting to ‘substituted parenting’. The father had not bridged that gap and the prospects of achieving necessary change were remote. Although A may have been adequately cared for, the stress of returning the two younger children would be likely to lead to the breakdown of the placement and both children required ‘attuned’ parenting to ameliorate for the neglect suffered by both.
HHJ Dancey conceded that the assessments undertaken in this matter ‘could have been better’ but were not entirely undermined by their shortcomings. It was unlikely that the outcome would have changed with different support because of the fundamental nature of the mother’s limitations and the father’s lack of understanding of the need for change. Neither Re D nor the Guidance require local authorities to provide support to the extent that it requires substitute parenting, which would also be the case for parents with a physical disability. Care and placement orders were made in respect of both children.
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