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Court of Appeal issues guidance on approach to be taken in cases involving parents with disabilities

Courts should not simply be driven by 26-week deadline

In  Re C (A Child) [2014] EWCA Civ 128, the Court of Appeal, comprised of Rimer LJ, McFarlane LJ, and Vos LJ, issued guidance on the correct approach to be taken in cases involving parents with disabilities, in particular where deafness is a feature of the case.

In light of expert advice, it was held that at first instance the process undertaken by the local authority and by the court during the course of care proceedings contained substantial detriments in relation to the mother, who has a low level of cognitive functioning and a degree of speech and hearing impediment, and in relation to the father who is profoundly deaf.  The process, in the words of McFarlane LJ, "failed to meet the disability needs of the parties and failed to produce an effective evaluation of the parents' potential to look after the child."

The parents, therefore, sought permission to appeal the care and placement orders made on 3 June 2013 in respect of their daughter, A, who was born on 16 August 2012, was taken into care on 7 September 2012, and has been in foster care since that date.  Given the consensus of all parties, including the local authority, that permission to appeal should be allowed and the case remitted for a first instance rehearing, it was deemed necessary for the Court of Appeal to identify the difficulties which arose during the proceedings and to offer guidance as to how those matters might be dealt with in similar cases in the future.

McFarlane LJ, largely assisted by the approach of Baker J in Wiltshire Council v N and Ors [2013] EWHC 3502 (Fam), in particular from paragraph 74 to the end of Baker J's judgment, issued the following recommendations regarding proceedings involving a deaf party (which are also applicable and adaptable to proceedings involving parties with other disabilities):

In concluding the matter, McFarlane LJ drew the guidelines together, stating [at para 35]:

"…all that I have said is not simply good practice in order to achieve a more informed and focused result for a child.  The court as an organ of the state, the local authority and CAFCASS must all function now within the terms of the Equality Act 2010.  It is simply not an option to fail to afford the right level of regard to an individual who has these unfortunate disabilities."

Ultimately, the guidelines will assist judges and legal practitioners with future cases involving parents with disabilities.  However, it is rarely a simple task.  Such proceedings will inevitably involve a complex balancing act between the welfare of the child and the rights of the parents.  In doing so, the welfare principle, the avoidance of delay, Article 6 of the ECHR, and the Equality Act 2010 will need to be carefully considered in light of the specific facts of each case.

Frank Feehan QC and Francesca Conn both of 42 Bedford Row (instructed by Alan Foskett of Moss & Coleman) appeared on behalf of the appellant father.  Ruth Cabeza of Field Court Chambers (instructed by Denise Lester of Moss Beachley Mullem and Coleman) appeared on behalf of the appellant mother.  Angela Burstow of New Court Chambers (instructed by the Local Authority) appeared on behalf of the relevant local authority.  Kelly Webb of Garden Court Chambers (instructed by Sarah Cove of Miles & Partners) appeared on behalf of the Children's Guardian.

The judgment and summary by Francesca Conn are here.

Alessia Thomas, Pupil Barrister, Coram Chambers

9/4/14