Cases involving parents with learning difficulties – the correct approach

In Re D (A Child) (No 3) [2016] EWFC 1  Munby P has set out the key principles that are to be considered when dealing with cases involving parents with learning difficulties.

The capacity of both parents to care for their child D was affected by their respective learning difficulties.  D’s needs were also assessed as more significant than usual as a result of his own learning difficulties.

Munby P endorsed not only the words of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 that “society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent….it is not the provenance of the state to spare children all the consequences of defective parenting.  In any event, it simply could not be done.” but also those found in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332 para 134 that “family ties may only be severed in very exceptional circumstances and…everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family.  It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.  However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained”

Munby P then went on to highlight the “profoundly important” observations of Gillen J in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8 and set out the 8 numbered paragraphs contained in Gillen J’s judgment in an annex to his own Judgment.

Gillen J’s “powerful words” that Munby P has commended “to every family judge, to every local authority and to every family justice professional in this jurisdiction” [28] set out the issues to be taken into account by courts when determining cases involving parents with learning disabilities and particularly so where they parent children who also have a learning disability.

They are summarised below:

1. The Courts need to be aware of the reports such as that from the Baring Foundation which refers to the national policy in England and Scotland committing government to “supporting parents with learning disabilities in order to help them, wherever possible, to ensure their children gain maximum life chance benefits”
2. Government policy emphasises the importance of people with a learning disability being supported to fully engage and play a role in civic society and their ability to exercise their rights and responsibilities needs to be strengthened.  Courts must take all steps possible to ensure that people with a learning disability are able to actively participate in decisions affecting their lives.
3. Courts should approach these cases with a recognition of the possible barriers to appropriate support being provided to parents with learning difficulties that might be displayed by some Trusts or services.  The   Baring Foundation report provides this cautionary warning:“  For example, it was felt that some staff in services whose primary focus was not learning difficulties (e.g.. In children and family teams) did not fully understand the impact of having learning difficulties on individual parents’ lives; had fixed ideas about what would happen to the children of parents with learning difficulties and wanted an outcome that did not involve any risks (which might mean them being placed away from their family); expected parents with learning difficulties to be “perfect parents” and had extremely high expectations of them.  Different professionals often had different concepts of parenting against which parents were assessed.  Parents’ disengagement with services, because they felt that staff had a negative view of them and “wanted to take their children away” was also an issue, as were referrals to support services which were too late to be of optimum use to the family – often because workers lacked awareness of parents’ learning difficulties or because parents had not previously been known to services”.
4. Parents with learning difficulties can often be “good enough” parents when provided with the ongoing emotional and practical support they need.  The concept of “parenting with support” must underpin the way in which the courts and professionals approach wherever possible parents with learning difficulties.  The competencies of parents with learning difficulties must not be judged against stricter criteria or harsher standards than other parents.
5. Parents must be advised by social workers about their legal rights, where to obtain advice, how to find a solicitor and what help might be available to them.  Those in childrens services need training about adults with learning disabilities.
6. The Court must take steps to ensure that there are no barriers to justice within the process itself.  Parents must have meaningful and informed access to reports, time to discuss the reports and an opportunity to put forward their own views.  The hearing should include special measures including adequate breaks in sessions.  The Court must be careful to ensure that the supposed inability of parents to change is not in fact due to the inability of the professionals involved to engage with the parents in appropriate terms.
7. 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.  The concept of “parenting with support” must move from the margins to the mainstream in court determinations
8. Courts must ensure that careful consideration is given to ensuring that any decision or judgment is fully explained to such parents

In this case Munby P concluded that these parents were not able to meet the needs of their child.  His conclusion was on based on 3 particular findings: (1) that these parents would not be able to maintain an effective working partnership with a support team over the longer term, (2) that the gap to be bridged between what the parents could offer and what D needed was too great to be met even by an extensive support package and (3) even if such a package could have been devised it would not in fact be promoting D’s best interests as his parenting would, in reality, become parenting by professionals and carers rather than by his parents.

In reaching this 3rd finding Munby P had to distinguish D’s situation from other instances that, it was argued on behalf of the parents, could equally lead to a child experiencing parenting through professionals and/or carers, for example where parents “choose” assistance such as nannies or boarding school for their children.   Munby P distinguished this case on two bases; the first that no sustainable package could be devised and so this point was not decisive and secondly that the parents had argued that what mattered was that the child had a clear and secure knowledge of who his parents were and in this case that would at best be very questionable.

Whilst this case sets out the key principles for cases involving parents with learning disabilities it, of course, also refers to principles that are of more general application.Munby P confirmed that the concept of “parenting with support” is “crucial,” re-iterated the words that caution against a Court engaging in “social engineering” and addressed also the concept of “reparative parenting”.

This last issue is dealt with at paragraphs 142 and 143:

[142] Finally, the question of whether D needs “good enough” parenting or “better than good enough” parenting.  There is, I think, a risk of this becoming mired in semantics.  The reality is clear and simple.  As Ms Randall put it, D has complex special needs (paragraph 76). The guardian expressed the same view when she said that D’s care needs are over and above those of other children of his age (paragraph 95) and said that, because of his own difficulties, D will need additional support both through childhood and as a young adult (paragraph 100). I agree with those assessments”.

[143] Ms Randall went on to express the view that in these circumstances D will require “better than good enough” parenting in order to achieve his potential (paragraphs 76,82).  Although this is a conventional way of expressing it, the real point surely is this.  What is required is parenting which is “good enough” not for some hypothetical average, typical or “normal” child, whatever that means, but for the particular child and having regard to that child’s needs and requirements.  Where, as with D, the child has needs over and above those of other children of his age, then what is “good enough” for him may well require a greater level of input.  D, in my judgment, plainly will.  That is the point, and that is what is relevant, and in this case highly relevant.  The descriptive label is merely that, a convenient form of professional shorthand.  I make is clear that in coming to this conclusion and in expressing myself in this way I have very much had in mind and taken into account Ms Fottrell’s submissions”.

[my emphasis]

The issues touched upon in this judgment make this, in my view, a useful authority whatever the cognitive abilities of the parents or children involved in your case.