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Public Law Clients with Learning Disabilities – Bridging the Gap

Gillian Geddes, barrister, of Hind Court considers the correct focus for public law arguments in support of parents with learning disabilities being allowed to care for their children.

Gillian Geddes, barrister, Hind Court

Gillian Geddes, barrister, Hind Court

The challenge
Public law practitioners will recognise the familiar features of this case.  The local authority is involved with your client, a mother with significant learning disabilities, who has just had a baby.  None of your client's previous children has remained in her care.  The father of this baby does not live with your client anymore and she has no supportive partner or effective network of support.  The local authority has its usual serious concerns that the mother will not be able to cope with caring for her new baby, so it issues care proceedings.

One such case arose recently in the Central Family Court.  Fortunately for the mother, after the baby's birth the local authority's Adults with Disabilities team funded support for the mother from Mencap, which organisation was able to provide a rota of family support workers to monitor and assist the mother with her care of her baby.  However, concerns arose about the mother's ability to cope which led the local authority to commence care proceedings with an initial care plan for interim removal of the child whilst assessments were undertaken.  At the initial contested interim care order hearing, the mother's advocate managed to persuade the court that any gaps in the care provided by the mother could, with the assistance of the Mencap workers and a wider circle of support, be bridged until the question of any possible separation could be finally determined.   Mother's support network was therefore put in place, consisting of a rota of Mencap family support workers, support from children's centres, a Family Group Conference, announced and unannounced round the clock social work visits, with the mother agreeing to attend new-born nurture and baby massage groups, the clinic, parenting courses and anything else recommended for her, whilst formal assessments were arranged.

However in due course, the psychologist assessed the mother as functioning in the extremely low range, better than only 0.3 per cent of individuals of her age.  Her insight into potentially violent partners was not good.  She had "concrete thinking" in that (in the terms of the psychologist) she needed "a new script for each new parenting task"; she did not have the ability to adapt her "scripts" as her baby changed and developed over time.

The local authority assessed the mother's parenting abilities, quite fairly instructing a parenting assessor trained in using PAMS techniques.  But the outcome was negative; the mother's own basic self-care needs were not the best as her own upbringing had been limited; she struggled with cleaning her own teeth and with regular bathing, the home conditions were unimpressive, and she did not understand what an appropriate diet constituted.  She found eye contact difficult, and struggled with keeping time and could not read bus and train timetables.  She had no substantial family assistance (her parents and sister either did not understand the gravity of the proceedings or did not care).  She was said not to be able to assess risk.  Professionals worried about how the mother could possibly cope with bringing up a child when she struggled even to care for herself.  In observations of the mother with her clearly much-loved baby, there was a reported lack of stimulation, interaction and age-appropriate play.  The assessor's opinion was that the mother would require 41% of her parenting skills to be taught to her either immediately or within 4-8 weeks.  The assessor believed that the mother could not retain her training in order to make the changes she needed to make, and the teaching she needed was reportedly "so vast that the assessor cannot see it being achieved in the long term and certainly not within the baby's timescales".

Yet at the same time, whilst the public law proceedings were ongoing and with the extra support being put in for the child in her mother's care, the baby seemed to be doing all right.  Her development was age-appropriate and she appeared to be a sociable, contented little girl.  The mother had been engaging with professionals provided by the adult team, Mencap and the children's centre.  She was an amenable and co-operative lady, totally focussed on her baby and on trying her hardest, and totally opposed to giving up her child.  But by the time the psychologist's assessment and the parenting assessment were complete, all the child workers predicted that the mother could not keep her daughter safe from harm in the future.  

By the IRH, the local authority's ADM had approved a final care plan of adoption for the baby and issued an application for a placement order, all of which greatly distressed the mother.  At the IRH, a contested final hearing was listed and the mother's vulnerabilities were considered so that she could give her best quality evidence.  It was decided she would have a worker from Mencap with whom she was familiar to stand in the witness box with her and explain if she did not understand a question or ask for it to be rephrased.

The argument
By the time of the final hearing, the Guardian was supporting the local authority's plan of adoption.  The mother's advocate argued that the child was by then 18 months old and by the time she was 2 years old she would be entitled to 15 hours at nursery for free because the mother lived on benefits, and the mother herself could use that time to do more courses to consolidate her learning.  But the psychologist, who had assessed the mother for just 90 minutes some considerable time before, informed the court in oral evidence that she believed that the mother could not learn. 

Yet there was evidence from the mother's Mencap support workers that she could learn; during the course of the proceedings she had learned how to cook, how to follow charts and lists, how to do basic risk assessments of potential partners and she had listened to and heeded advice.  By the time the child would be at school, the mother's advocates argued that she would be able to do more courses and once the child grew older and could look after herself to a certain extent, she would become a good advocate for her own mother.  Meanwhile, the mother had been assessed for adult services, including services to enable her to be a parent, and the adult team thought she could care for her child with assistance. 

The child's own social work team disagreed; they informed the court that the mother clearly loved her baby very much but the demands of caring for her baby throughout her minority would simply be beyond her, and adoption was in the baby's best interests.  The judge at first instance agreed with them and made care and placement orders, approving the local authority's care plan. 

Receiving the judgment, the mother's advocate applied for permission to appeal. When that was refused, he sought a stay of execution pending an application for permission to the Court of Appeal. The judge recognised that in the absence of a '999 emergency' he ought to allow a short period of time for the mother's representatives to renew their application and he allowed two weeks.

The mother's appeal emphasised the disconnect between the realities on the ground, in that the child was meeting her milestones and was doing acceptably well in the mother's care as against the assessment of the child's social workers that the mother could not meet the child's future needs.

The appeal also focused on the growing body of ECtHR jurisprudence on the removal of children from families where one of both parents suffer from mental or physical disabilities, and on the interaction between this body of case law and the Re B [2013] UKSC 33, [2013] 1 WLR 1911 and Re B-S [2013] EWCA Civ 1146, [2014] 1 WLR 563 proportionality test.

In terms of the law, several strands were brought together, asserting that:

In casting a wide net at the permission stage, the aim was to try to persuade the Court of Appeal to look more broadly at the issues and law concerning parents with learning disabilities. It was argued that although the President had given some useful guidance in Re D [2016] EWFC 1, endorsing the analysis of Gillen J in Re G & A [2006] NI Fam 8, the judgment of Gillen J still has not gathered the wide scope of audience that it deserves. Here, three particular elements of Gillen J's judgment bear repeating in full:

-        People with a learning disability are individuals first and foremost and each has a right to be treated as an equal citizen. Government policy emphasises the importance of people with a learning disability being supported to be fully engaged playing a role in civic society and their ability to exercise their rights and responsibilities needs to be strengthened. They are valued citizens …

-        This court fully accepts that 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 … judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents. Their competences must not be judged against stricter criteria or harsher standards than other parents.

-       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.  The concept of "parenting with support" must move from the margins to the mainstream in court determinations.

On behalf of the mother it was argued that these principles, combined with the YC v UK, Re B and Re B-S analysis led to the conclusion that the court ought to ask itself—ideally directly, but if not at least indirectly—the following questions:

  1. How big is the gap between what the mother can offer the child and what the child needs? How much support would be required and, more importantly, is this gap capable of being bridged by a support package?
  2. If so, is there a support package that is available and sustainable? This would include consideration of both whether the mother could obtain the support she needed both now and in the future, as well as whether the mother would engage with it and accept the support and guidance offered.
  3. Finally, if there is an available support package that could bridge the gap, would it promote the child's best interests. It is, of course, imperative that the courts apply the principles set out in YC v UK (see above) and avoid asking whether permanent separation from the mother provides a better environment for the child to be brought up in, but instead focus on whether parenting under such a support package would be harmful to the child's health and development.

The argument was made that in order to satisfy the YC v UK line of authority, the court had to ask itself the above three questions first, and then go on to conduct a proportionality assessment of parenting-with-support versus removal.

Drawing back from the brink
Permission was granted on all grounds. A transcript of the permission judgment can be found at [2016] EWCA Civ 971 (Lawtel only).  Granting permission to appeal, Lady Justice Macur stated that,

'The expertise that was available to the judge was in itself speculative as to the future. It was difficult to know what support would be available for the mother once the nature of the support that would undoubtedly be necessary had been identified, and, most importantly, what impact that intervention would have upon the welfare of the child... I am persuaded that it was not sufficient for the Judge to dismiss the evidence of the witnesses [from Mencap] who gave evidence as to the mother's capabilities and their favourable view of her future parenting prospects, on the basis that they were not childcare experts.... it seems to me that either the judge should have followed his instinct and obtained evidence from a resource able to view each side of the equation, or else should have conducted the analysis himself beyond recording the evidence that he had heard without drawing the strands together in terms of coming to an answer... I am not persuaded that it is possible to obtain the overall analysis and holistic assessment that is required in accordance with s 1(3) of the Children Act 1989, s 1(4) of the Adoption and Children Act 2002, Re B-S and Y v UK [2012] 55 EHRR 33.'

Leading counsel was instructed for the substantive appeal and the Court of Appeal allowed the appeal, in so doing holding that in the circumstances the judge at first instance either ought to have adjourned the final hearing to obtain a further report from an adequately qualified expert, or at least have given reasons for concluding that he had adequate evidence to resolve the case without a further expert report.  Further assessment was directed to be conducted by Symbol, but it was left to Symbol to decide, once they had met the mother, whether the assessment was residential or community-based.  Symbol decided that a residential assessment was the optimum format, so the mother and baby moved to live miles away in a specialist residential unit for a 12-week assessment.  

Resuming the fight
The mother did her very best but found the whole process very intimidating.  The managers of the unit finally decided that her best was not good enough, that she could not sustain consistent, good enough parenting, so that the baby faced "a significant risk of unintentional neglect and emotional harm." They were willing to keep the mother and baby in their unit until the matter could be brought back to court.

Another contested interim removal hearing was urgently listed and again strongly fought.  There appeared to be a contradiction between the final conclusion of the Symbol assessment, and what was actually being reported "on the ground" on a daily basis by the observers at Symbol (echoing what had previously been reported by the Mencap family support workers).    His Honour Judge Tolson at the Central Family Court decided that he needed more such evidence from the family support workers assisting the mother before he could decide whether the draconian step of removal, with its inevitable consequences, was justified.  To this end, a further contested final hearing was therefore listed, and the mother and baby therefore remained together at home with a greatly increased package of support from Mencap (almost 60 hours a week).  This decision came at a crucial stage in the proceedings, providing as it did further evidence as to how the mother and baby were coping with appropriate support in the home and outside the intense environment of the residential unit.

By the time of the second final hearing, the baby had grown into a toddler of 2 ½ years old who, throughout the whole process, had still never actually come to any harm and was still meeting her developmental milestones.  With the substantial assistance of support workers from Mencap, arguably the mother had been managing. 

Staff from Mencap agreed to give evidence at the second final hearing.  Their joint evidence was that they were willing to continue with their substantial support for the mother and child to enable the child to remain in her mother's care.  This inevitably meant that the local authority would need to fund this support for as long as it was needed, but the mother was accepting of it, had shown improvements, and was doing everything that professionals were asking of her.  A Mencap worker informed the court that:

'Whilst in the past it was commonly believed that the brain was incapable of change and development, vast research has proven that brain plasticity means that possibilities for change are endless.  Repetition and reinforcement of skills will eventually build new neuropathways which will become hardwired as new patterns of behaviour...Individuals with a learning disability do have the ability to learn new skills; it is just going to take them longer to do so...

'Reading through the reports and meeting notes, I see a pattern forming that demonstrates a reluctance to acknowledge that in this particular case a greater level of patience, tolerance and time is needed because [the mother] is identified as having a learning disability...

'The stress and pressure of the court proceedings have...also weighed heavily on [the mother] and must, to a degree, have had an impact on her parenting.  I expect that removing the stress and pressure will in itself have an immediate beneficial effect on [her] and her baby.'

The court was reminded of how it should approach the issue of the parenting capacity of parents with a learning disability.  Alongside Re B, Re B-S, Re G & A and YC v UK, there were also Baker J's comments in his judgment in Kent County Council v A Mother [2011] EWHC 402 (at 32), that "people with learning disability may, in many cases, with assistance, be able to bring up children successfully", which he repeated in Re A [2014] 2 FLR 591 (at 81) and which were then endorsed by McFarlane LJ in Re C [2014] 1 WLR 2495 (at 17).  It was argued that, in this case, the gap in the mother's abilities was capable of being bridged by all the support being provided to her, and by the time of the second final hearing, still no harm had come to the child, who was still happy and thriving in her mother's care. 

In conclusion
His Honour Judge Tolson finally decided to dismiss the local authority's application for a placement order and to allow the child to remain with her mother, with ongoing support being provided by Mencap (deemed necessary at a minimum of 25 hours per week), and funded by the local authority for as long as needed. 

With tenacity and with the right arguments, the mother's case had been successfully fought throughout the lengthy proceedings.  However there remains, in the view of the mother's various advocates, an ongoing and pressing need for authority from the Court of Appeal on the correct analysis to be applied when determining cases involving parents with learning disabilities.

This article was written with the kind permission of Clive Newton QC of 1 King's Bench Walk, Helen Brander and Andrew Venables of Hind Court, and Cartwright King solicitors.