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Emma Harman, barrister of 3PB, explains the lessons that can be learned from A Local Authority v G (Parent with Learning Disability) [2017] EWFC B94.

Emma Harman, barrister, 3PB

The recent case of A Local Authority v G (Parent with Learning Disability) [2017] EWFC B94 has highlighted the importance that all families in which one or more of the parents has a learning disability are given the support that they require to be able to care for their children. However, the judge in this case found that this obligation does not extend to support that is tantamount to substituted parenting.

In A Local Authority v G (Parent with Learning Disability), in which judgment was handed down by HHJ Dancey on 18 December 2017, the court was predominantly concerned with two children K and T, aged 3 and 19 months respectively (the living arrangements for the eldest child, A (aged 12) having been agreed outside of the family). The local authority’s application was for care and placement orders in respect of both children, which was supported by the guardian. The parents opposed the orders sought.

The mother of the children had a mild learning disability with an IQ of 57 and was partly deaf in both ears. The mother’s learning disability directly impacted upon her ability to care for the children unaided and to be able to undertake daily tasks without assistance. The mother required continuous support to meet the children’s needs. She was unable to undertake many tasks unprompted. She was unable to tell the time and she did not know when to feed the children. She could not cook the children meals unassisted. She had also suffered some difficulties with depression.

The father did not have any disability and was registered as the mother’s carer. He too had suffered with depression over a number of years.

The court was tasked with deciding whether the children could safely be returned to the parents’ care under either a child arrangements order with a supervision order or a care order, or whether their welfare demanded that they be placed outside of the family for adoption.

The local authority’s concerns were of chronic neglect. The court found that the home conditions were ‘unacceptably cluttered and unclean with numerous choking and other hazards for the children’; the parents were not ‘attuned to the children’s physical or emotional needs’, the children had at times been ‘unkempt and dirty’; K and T had been left in full and/or sodden nappies; the children had on occasions been inappropriately dressed; there was rough handling on two occasions by the mother; inadequate supervision by both parents of the children causing the children to suffer accidents and come to physical harm; and the children lacked a consistent routine. HHJ Dancey also found that the eldest child A, had taken on (and was asked to take on) responsibilities of K and T which were unreasonable.

On behalf of the mother, the local authority was heavily criticised for its lack of appropriate support provided to her in the light of her learning disability needs. The mother’s case was, in essence, that  the local authority and the adult learning disability team had let her down by their failure to follow the Good Practice Guidance on Working with Parents with a Learning Disability (updated September 2016) DoH/DfES and consequently had failed to provide her with timely and appropriately tailored training. It was accordingly submitted that the assessment was therefore unrealistic and the mother had not been given a fair and appropriate opportunity to be able to improve her parenting skills. On the mother’s behalf it was submitted that this put her at a significant disadvantage compared to parents without learning disability and had over-burdened the father by requiring him to support the mother and impacting on his ability to care for the children.

The Good Practice Guidance was issued to address a lack of evidence of effective joint working between adult and children’s services. The judge adopted the summary of the guidance as set out on behalf of the mother as follows:

i) Services need to help enable children to live with their parents (as long as this is consistent with their welfare) by providing the support they and their families require. This accords with the general duty of local authorities under section 17(1) of the 1989 Act to provide a range and level of services to safeguard and promote the welfare of children in need and their upbringing by their families (insofar as it is consistent with their welfare).

ii) Good practice is also underpinned by an approach to parenting and disability which addresses needs relating to both impairment and the disabling barriers of unequal access and negative attitudes. Such an approach recognises that:

“… If the problem is seen as entirely related to impairment and personal limitations, it is difficult to understand how to bring about positive changes for parents and their children.

… If the focus is, instead, on things that can be changed (such as inadequate housing) and support needs that can be met (such as equipment to help a parent measure baby feeds), there are many more possibilities for bringing about positive improvements.” [p4]

iii) There are five key features of good practice in working with parents with learning disabilities: [pii]

•    accessible information and communication
•    clear and co-ordinated referral and assessment procedures and processes, eligibility criteria and care pathways
•    support designed to meet the needs of parents and children based on assessments of their needs and strengths
•    long-term support where necessary
•    access to independent advocacy.

iv) 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. [1.2.1, p8].

v) It is important that services understand who is to take the lead on assessments:

•    where there are no welfare concerns but adults need assistance with routine tasks of looking after children, adult learning disability services should take the lead on assessment and care planning
•    where parents need support in the medium to long term adult learning disability and children’s services jointly co-ordinate assessment and care planning
•    where intervention is required to prevent children suffering impairment to their health or development or significant harm, children’s services lead assessment and planning with specialised input from adult learning disability services (1.2.5 p12).

vi) Services in contact with parents with learning disabilities should use appropriate assessment materials and resources and/or access specialist expertise. Failing to do so will result in the parent receiving an unfair and therefore invalid assessment, in breach of their legal rights. [1.2.6, p13].

vii) Where a parent has a learning disability it will be important not to make assumptions about their parental capacity. Having a learning disability does not mean that a person cannot learn new skills. [p13].

viii) In the case of parent support services, an assessment of a parents’ learning needs and circumstances should inform the support provided to develop parenting skills. Research indicates that – for parents with learning disabilities – the key elements of successful parenting skills support are:

“… clear communication, and ensuring parents have understood what they are told
… use of role-play, modelling, and videoing parent and professional undertaking a task together, for discussion, comparison and reflection
… step by step pictures showing how to undertake a task
… repeating topics regularly and offering opportunities for frequent practice
… providing/developing personalised “props”: for example, finding a container which will hold the right amount of milk for the child so that the parent does not have to measure out the milk.” [p16]

ix) A range of services is required. All families are different and at different stages of their life cycle families require different types of support. [1.3.3, p16]

x) A need for long-term support does not mean that parents cannot look after their children. [1.4.1, p20]

xi) Although a parent with learning disabilities can learn how to do things, their cognitive impairment will not go away. Just as someone with a physical impairment may need personal assistance for the rest of their life so a person with disabilities may need assistance with daily living, particularly as new situations arise. Secondly, children and their needs change. A parent may have learned to look after a baby and young child and be coping well. However, as the child enters adolescence other support needs may arise. [p21]

xii) Where a need for long-term support with parenting tasks is identified, it should form part of the community care and/or child in need plan. [1.4.2, p21]

xiii) Advocacy and self-advocacy should be made available to help parents access and engage with services. The Care Act 2014 imposes a duty on local authorities to provide an independent advocate where an individual would otherwise have substantial difficulties in being involved in processes such as their own assessment and care planning. [p22]

xiv) The Equality Act 2010 imposes a duty on local authorities to make reasonable adjustments so as to eliminate discrimination and to advance equality of opportunity; the provision of an independent advocate may assist with this. The Human Rights Act 1998 entitles a parent to participate fully in the process; this includes stages prior to any formal legal proceedings being initiated. [p22]

xv) It is particularly important to avoid the situation where poor standards of parental care, which do not, however, meet the threshold of being of significant harm to a child, subsequently deteriorate because of a lack of support provided to the parent. A failure to provide support in this type of situation can undermine a parent’s rights to a private and family life, and may also contravene an authority’s disability equality duty. [p25]

xvi) Families affected by parental learning disability are likely to have an on-going need for support. [p27]

xvii) When children are placed in foster care, parents should receive practical support to maximise their chances of improving their parenting capacity. Without this, parents will have little chance of reunification with children who have been removed from their care. [2.2.12, p29]

xviii) Both children’s and adult workers will need specific training in order to respond appropriately to the needs of families affected by parental learning disability. Child protection training strategies should include adult learning disability services. [p38]

xix) It is essential that assessments, training and support are both timely and appropriately tailored to the parent with a learning disability. Failure to build in, from the outset, the extra time that a parent with a learning disability needs in order to learn and understand, puts that parent at a significant disadvantage in child protection proceedings, compared to parents without a learning disability. [piii]

xx) There must also be joint working across all the agencies (in particular adult and children’s services) and appropriate and effective communication permitting parents to participate fully in the process. [piii]

The judge also reminded himself that where a parent has a learning disability the court must make sure that he/she is not being disadvantaged simply because of their disability. The essential question is whether the parenting that can be offered is good enough if support is provided. Consideration was given to Re D (A Child) (No 3) [2016] EWFC 1 where Munby P endorsed and recommended what was said by Gillen J in Re Guardian and A (Care Order: Freeing Order: Parents with a Learning Disability) [2016] NIFam 8. Those cases established a number of important points relevant to this case:

i) Parents with learning difficulties can often be ‘good enough’ parents when provided with the ongoing emotional and practical support they need.

ii) The concept of ‘parenting with support’ must underpin the way in which courts and professionals approach parents with learning difficulties.

iii) Courts must make sure 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 parents without such difficulties. To that end parents with learning disability should not be measured against parents without disability and the court should be alive to the risk of direct and indirect discrimination.

iv) Multi-agency working is critical if parents are to be supported effectively and the court has a duty to make sure that has been done effectively.

v) The court should not focus so narrowly on the child’s welfare that the needs of the parent arising from their disability, and impacting on their parenting capacity, are ignored.

vi) Courts should be careful to ensure that the supposed inability of the parents to change is not itself an artefact of professionals’ ineffectiveness in engaging with the parents in an appropriate way.

The judge also gave consideration to Kent County Council  v A Mother [2011] EWHC 402 recognising (a) that parents with learning disability need to be supported and enabled to lead their lives as full members of the community, free from discrimination and prejudice, (b) a wider acceptance that people with learning disability may in many cases, with assistance, be able to bring up children successfully, (c) the need for professionals working with families and children to be trained to recognise and deal with parents with learning disabilities and (d) the need for Government Guidance to be followed.

HHJ Dancey said that there was considerable force in the criticisms made on behalf of the mother of the assessments and the support provided. In particular:

a. the local authority did not have, as it should, a protocol for dealing with parents with a learning disability (or not one that the professionals were able to tell the court about, which amounts to the same thing) and that was reflected in the approach within the case;

b. a protocol would focus on the Guidance which had not always been followed in this case – and to describe the Guidance as a ‘counsel of perfection’ (the argument which was submitted on behalf of the Guardian) is to give a charter to ignore it which should be robustly challenged;

c. those working with the mother should have been trained in dealing with parents with a learning disability (and there should not be reliance only on their experience of dealing with people with a learning disability) which would have given them better direct understanding during assessment and teaching how best to work with the mother and how to deliver the right support;

d. There was not enough focus in the case on planned support and a positive strategy to try and keep the family together, instead the parenting assessor’s rather focus was on a solution for the children within their timescales rather than supporting the parents. The judge said that the two are not necessarily inconsistent if support is provided in a timely and efficient manner;

e. There were unacceptable delays in carrying out assessments and establishing what support was needed, creating a conflict with the children’s timescales;

f. It is wrong for the local authority to expect the parents to put forward proposals in respect of support that they require. Instead, the judge said that it is the local authority which should be making an assessment of the support that can be offered and that should include what is available from outside agencies as well as in-house support;

g. There could and should have been more focus on repetitive teaching using role-modelling and example;

h. a more coordinated response to the father’s evident need as a carer of the mother should have been put into effect earlier with a support package rather than leaving him to his own devices;

i. work with the parents should have continued after the children were removed not least to assess whether they were making necessary changes;

j. it was unfortunate that, as in many cases, these parents have had to deal with a number of different social workers, five in this case – that has an impact both on the need for vulnerable parents to re-build new relationships with professionals before and during stressful proceedings and professionals’ continuity of knowledge and experience of the family.

The judge was acutely alert to the importance of upholding the rights of the mother. This was evidenced not only by the comments and findings within the judgment but also the way in which the case was conducted. Ground rules were considered before the final hearing and at regular times during it with specific reference to the mother’s needs as advised by an intermediary. The mother had the assistance of two lip-speakers, an intermediary and a supporting advocate throughout the three week hearing. Advocates and witnesses were encouraged to speak in short sentences using simple words and dispensing with legal and social work jargon. Regular breaks were taken throughout the day, which increased during the mother’s evidence. The mother was allowed to give evidence from her seat where she had been sitting throughout the hearing and was supported by her intermediary and visual aids, including cards that she could use to indicate if she did not understand or needed an additional break. Regular checks were made to ensure her understanding. The judge’s approach highlighted not only the importance of ensuring the mother was able to understand and participate in the proceedings, but also amplified the inadequacies of the work done by the local authority in terms of the training and support provided to the family as well as the assessments undertaken.

Despite the judge’s assessment of the strength of the arguments put forward on behalf of the mother, he formed the overall view that they were not sufficient in themselves to justify a return of the children to their parents’ care. The reasons for this were that the mother would need such a package of support that it would amount to substituted parenting. The father could not bridge the gap. He had not done so to the point when the children were removed. The judge found that the father had not understood in any real sense the limitations of his wife’s ability to care for the children to the extent that on a number of occasions he left the mother on her own to care for the children without support. HHJ Dancey said he has not internalised the local authority’s concerns, particularly around supervision or the need to change even now.

The judge identified a number of positives in the parents including their willingness to engage and accept help and support, but said that unless they have a good enough understanding of why they need to change and what they need to do, the prospects of achieving real and necessary change are remote. Furthermore, the judge was satisfied that K and T needed attuned parenting that would repair the harm caused to them by neglect in their parents’ care. He found that the parents were unable to parent at their level. He evidenced this on the basis of the emotional state of the children when removed from the parents’ care and the improvements in their physical and emotional state since being in foster care.

What can professionals learn from this case?
This case highlights that it is essential that all professionals – legal advisers, social workers and guardians – are well versed in the Good Practice Guidance and the obligations upon local authorities to support families where one or both parents have a learning disability.

Local authorities should review their practices and procedures, and ensure the following takes place:

a. Implement a protocol for referrals, assessments and care pathways in order to respond appropriately and promptly to the needs of both parents and children;

b. Provide clear guidance on who takes the lead on assessments (the adult or children team);

c. Establish how the two teams should work together – there should be joint working;

d. Train those working with the family, both children and adult workers adequately in working with people with learning disabilities;

e. Provide parents with independent advocacy;

f. Ensure that assessments, training and support are timely and appropriately tailored;

g. Promptly identify  and implement both in and out of house support services that can be provided to the family;

h. Use appropriate assessment materials and resources and / or access specialist expertise;

i. Provide clear communication including checking the parent’s understanding of what has been said;

j. Use role-play, modelling and other suitable methods of training such as videoing a parent and professional undertaking a task together for discussion, comparison and reflection;

k. Repeat information and topics, and offer opportunities for frequent practice (in the home ideally);

l. Provide the use of “props” to assist with undertaking care tasks;

m. If long-term support is required, identify it and set it out in detail clearly within in the care plan together with an explanation as to how this is sufficient or not to be able to provide the children with the level of care that they require.

18/1/18

Emma Harman acted for the respondent mother in A Local Authority v G (Parent with Learning Disability) [2017] EWFC B94.

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