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England and Wales Family Court Decisions (High Court Judges) |
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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> A & B (Children) (deaf parent - assessment and practice) [2021] EWFC 10 (09 February 2021) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2021/10.html Cite as: [2021] EWFC 10 |
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IN THE MATTER OF THE CHILDREN ACT 1989
AND THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF THE CHILDREN
B e f o r e :
____________________
A LOCAL AUTHORITY |
Applicant |
|
- and - |
||
(1) M (2) F -and- (3) A and (4) B (by their guardian) |
Respondents |
____________________
Samantha King QC and Emma Kendall for the First Respondent
Aidan McGivern for the Second Respondent
Daniel Dodd and Clare Bate for the Children's Guardian
Hearing dates:
4th-8th, 11th-13th, 18th-22nd, 25th-26th January, 5th and 9th February 2021
____________________
Crown Copyright ©
INTRODUCTION
BACKGROUND TO THESE PROCEEDINGS
THE IMPLICATIONS OF DEAFNESS IN THIS CASE
What does the term 'deaf' mean?
How should a deaf person be treated in law?
6(1) A person (P) has a disability if –
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.
'States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.'
Reasonable adjustments by the local authority
16. …I will accede to the request made…to offer some guidance as to some lessons that might be learnt from this case. What I will say now is not at all intended to be comprehensive guidance, because my Lords and I have not engaged in the nitty-gritty of this case, and I would not profess to have extensive experience of these cases from other proceedings in other contexts but it does seem to me that some guidance is helpful.
17. In preparing what I might offer by way of guidance I am assisted to a large extent by the judgment given by Baker J in Wiltshire Council v N and Ors [2013] EWHC 3502 (Fam)…That case concerned an individual with very significant learning disabilities, but what Baker J says from paragraph 74 onwards to the end of that judgment can be adapted to the circumstances of this case.
18. Before descending into detail, I would make this observation. It is crucial for professionals and those involved in the court system, in particular judges, to understand one profound difference between the ordinary need in cases where parties to the proceedings may speak a different language for there to be "translation", and the need for a different character of professional intervention in these cases. This need is not solely or even largely one of "translation" as would be the case in the straightforward translation of one verbal language to another; the exercise is one of "interpretation" rather than translation. Communication between a profoundly deaf individual and professionals for the purpose of assessment and court proceedings involves a sophisticated, and to a degree bespoke, understanding of both the process of such communication and the level and character of the deaf person's comprehension of the issues which those in the hearing population simply take as commonplace. For a profoundly deaf person, the "commonplace" may not be readily understood or accessible simply because of their inability to be exposed to ordinary communication in the course of their everyday life. What is required is expert and insightful analysis and support from a suitably qualified professional, and the advice this court has in the reports we have, a suitably qualified professional who is themselves deaf, at the very earliest stage.
a. It is the duty of those who are acting for a parent who has a hearing disability to identify that as a feature of the case at the earliest opportunity.
b. Both those acting for such a party and the local authority should make the issue known to the court at the time that the proceedings are issued.
c. It should be a matter of course for the provision of expert advice on the impact of the deaf person's disability in the particular circumstances of the case to be fully addressed at the case management hearing. An application for expert involvement for the purpose, if nothing else, to advise the court and the professionals how they should approach the individual, should be the subject of a properly constituted application for leave to instruct the expert under Part 25. The legal representatives should normally by the date of the case management hearing identify an agency to assist their client to give evidence through an intermediary or otherwise if the court concludes that such measures are required.
d. The issue of funding needs to be grappled with at the earliest stage before the case management hearing and during the case management hearing. The importance of addressing the funding issues at the earliest opportunity cannot be underestimated.
e. It is not simply a matter of good practice; 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.'
'In those circumstances, I would prefer to deal with those wider issues by referring the matter to the President of the Family Division and to MacDonald J, who with the President's approval has published guidance on the conduct of remote and hybrid hearings in the family jurisdiction, to consider whether the guidance needs amendment to address the difficulties faced by disabled litigants in general and those with hearing loss in particular.'
'…it is the duty of lawyers acting for a parent who has a hearing disability to identify that as a feature of the case at the earliest opportunity, that those lawyers and the local authority should make the issue known to the court at the time that the proceedings are issued, and that the court must grapple with the issue, including the support required and the funding of that support, at the first case management hearing with the aim of giving clear and detailed directions…In the case of remote or hybrid hearings, where the party, interpreter and/or intermediary are not together in the same room, it will be necessary to consider how they can communicate with each other separately from and alongside the platform through which the hearing is being conducted. That may or may not be a matter for a court direction but it will certainly be something to be considered and arranged by the parties' solicitors.'
Reasonable adjustments by the court
'Advocates must adapt to the witness, not the other way round.'
8. Effective communication underlies the entire legal process: ensuring that everyone involved understands and is understood. Otherwise the legal process will be impeded or derailed.
9. Understanding means understanding the evidence, the materials, the process, the meaning of questions and the answers to them.
29. It is for judges to ensure that all…can participate fully in the
proceedings.
THE EXPERT EVIDENCE
Dr Austen
a. Did not agree that M has extremely low intellectual ability around the 1st percentile or that she has a learning disability.
b. Did not agree that M did not have a clearly recognisable language system.
c. Did not agree that M has a severe memory impairment, a working memory at the 1st percentile, or that short term auditory memory is at the 1st percentile.
d. Did not agree that M's ability to understand spoken English is extremely poor.
e. Did not agree that M is of insufficient cognitive ability to reliably understand these proceedings.
f. Did not agree that M is unable to suitably describe in lay terms the significant difference between foster care and adoption.
g. Did not agree that M has a global learning disability or an impaired memory.
a. She has difficulty hearing what people are saying, which may result in her missing information and instructions.
b. She appears to be an adequate lipreader, but lipreading generally only has a success rate of about 50% due to many letter and word shapes being identical.
c. She was not skilled or confident in telling Dr Austen when she had not understood or in asking her to repeat.
d. She has gaps in her knowledge (which is common for all deaf people who are not able to learn by 'over hearing' or have poor literacy) which are the result of both her deafness and her historic and current social situation.
e. Her deafness has impacted her speech which is difficult to understand but this is not because she has a serious language impairment.
f. She does not have a severe language impairment; however, she may have some mild language delay.
g. Her literacy is poor with a reading age of 8 years and 11 months. Literacy is hugely affected by early deafness, and research shows that deaf adults of normal intelligence have on average a reading age of 9 years (which is considered functionally illiterate). Therefore, M's results are not indicative of cognitive abnormality, but are indicative of the additional support she needs both in accessing the court proceedings and also in parenting.
h. Language and speech are very different skills, and it is entirely possible for a deaf person to have unclear speech but good language. Dr Austen did not observe M to have a significant language problem.
The implications of the expert evidence for practice
Dr Cornes
a. whether M or F are able to offer consistent and safe care to A;
b. what specialist assessments of M are required in light of her hearing impairment; and
c. what special measures are required within these proceedings to ensure M can participate properly and fairly.
- She communicates via speech, some of which is incomprehensible.
- She can be 'off-topic' at times.
- When she is nervous, or when she was asked about domestic abuse, she talked rapidly and was much harder to understand.
- She can give the impression that she has understood the question when she clearly has not.
- She had a very limited understanding of emotions and had a poor affective vocabulary to describe emotional states.
- She exhibited major impairments in her expressive and receptive English abilities and her literacy is poor.
- Provide information in an accessible format, interpreted into simple English using a lip speaker.
- Information should also be available written in simplified English, at a reading level that is accessible.
- Undergo deaf awareness training.
- Be aware of their obligations under the Equality Act 2010.
ANALYSIS OF THE LOCAL AUTHORITY'S ACTIONS
Local authority actions before A was born
'M has learning difficulties, she is also deaf, she can lip-read and has hearing aid but communication can be difficult…
…there is a Certificate as to Capacity to conduct proceedings within the bundle – assessed 21st and 28th November 2014…She is deaf and does not have sign language, she attempts to communicate via lip reading. Her reading ability is basic and not functional.'
'The Local Authority recognises that parents with intellectual disability can learn but that this also comes down to support. It should not be assumed that a person with a disability is unable, as with the right supports in place, parents with disabilities can afford their children an appropriate level of care. However, the most successful parents are believed to be the ones with a good support system, which M and F do not appear to have.
Whilst history does not necessarily dictate the future, it may give an indication of how this child's needs will be provided for.'
'Previous assessment of M's capacity have [sic] outlined difficulties in her processing and retaining verbal and written information. That she is deaf, that she is unable to sign and attempts to lip read but that this is basic and non-functional.' [emphasis provided]
'M is a vulnerable person in her own right due to her low IQ and cognitive functioning. During the last placement proceedings of her sons in 2014, her full scale IQ placed her at below 1st percentile and M was assessed as not having capacity regarding the care proceedings. This assessment highlighted that M is deaf and does not have sign language; she attempts to communicate via lip reading. Her reading ability is basic and not functional and it was concluded that M is likely to have had this impaired level of cognitive capacity across her life and this will follow a predictable trajectory in the future.' [my emphasis]
'The local authority recognises that parents with intellectual disability can learn and provide good enough care to their children but that this also comes down to support. It should not be assumed that a person with a disability is unable, as with the right supports in place, parents with disabilities can afford their children an appropriate level of care.' [my emphasis]
'T said she talked to M about meetings and M said that she was fine and she understood what people said during meetings. T said M said people talk slowly and she can lip read…T said she will be involved after the court when she is needed. T said she can identify that M is a bit confused about what [sic] the local authority's intention to remove the baby soon after birth.' [emphasis provided]
10: Statement of procedural fairness
Have the contents of this statement been communicated to mother, father, significant others, and the child in a way which can be clearly understood? If not, what has been tried?
'Risks outlined in the chronology have previously been outlined to parents.
M is aware of the ongoing concerns and the local authority's intention to issue proceedings and is aware of all the concerns that have been raised.
F is aware of the ongoing concerns and the local authority's intention to issue proceedings and is aware of all the concerns that have [sic]
This statement will be made available to parents via their own legal representation.'
'151. The state, in the form of the local authority, assumes a heavy burden when it seeks to take a child into care. Part of that burden is the need, in the interests not merely of the parent but also of the child, for a transparent and transparently fair procedure at all stages of the process – by which I mean the process both in and out of court…'
'154. …(i) Social workers should, as soon as ever practicable:
(a) Notify parents of material criticisms of and deficits in their parenting or behaviour and of the expectations of them; and
(b) Advise them how they may remedy or improve their parenting or behaviour.
Local authority actions after A was born
'Issues: Some conversation was hard to hear as they both talk quietly and M's speech is often mumbled.'
Local authority actions after receipt of Dr Austen's report
'It appears that professionals have found M's speech and communication style extremely difficult to understand. Given the severity of this, I think all significant appointments should include an Intermediary. M has limited literacy. Written material will need to be abbreviated and explained orally.'
Local authority actions after receipt of Dr Cornes' report
'On 3/6/19 M and F were visited at home by the social worker. The issues of accessing further parenting support were discussed with M and F. Neither parent was agreeable to undertaking any parenting as they both felt that they had enough knowledge of parenting. There was no lip speaker present at this visit. However the social worker was able to communicate with M and F was able to enable M to understand any words that she had not understood. M said that she felt that as she had already had other children she felt that she knew enough about parenting.'
LESSONS TO BE LEARNED IN THIS CASE
- An attempt should have been made to meet the parents prior to the completion of B's CPR.
- An attempt should have been made to meet the parents prior to the completion of the final social work evidence.
- The examination of the pros and cons of adoption versus long term foster care could have been better demonstrated in the social work statements.
- The records of the Agency Decision Maker's decisions in respect of both children could have more fully reflected the thought processes involved, although there was no defect in the reasoning itself.
The local authority should have ensured that the social workers working with M as a deaf person were aware of their obligations under the Equality Act 2010.
M was wrongly identified in most, if not all, of the court orders as being 'hearing impaired'. All parties should have ensured that M's disability as a deaf parent of the children was accurately recorded by the court.
There should have been a 'joined-up' approach between Adult Services and Children's Services before A was born, to identify M's needs as a deaf parent, particularly in light of the clearly identified potential safeguarding issues and M's increased vulnerabilities as a deaf parent reporting domestic abuse, and to identify the extent of the local authority's duties to M as a parent with protected characteristics under the Equality Act 2010.
The local authority should have ensured that the pre-birth assessment incorporated expert advice about the extent of M's needs as a deaf person, and should have been carried out by professionals with the skills suitable to understand and analyse the impact of M's deafness on her parenting.
The deaf awareness training for Social Worker 3 was not accessed in a timely fashion. The local authority should have ensured that all social workers and contact supervisors working with M as a deaf person received adequate and timely deaf awareness training. Such training should have included information about how to provide information in a clear and appropriate way to a deaf person who also has communication difficulties.
Using F to communicate with M was not appropriate for matters of substance.
Using text messaging to communicate with M, whilst her preferred mode of communication and appropriate for regular contacts and discussion about everyday matters and arrangements, was not appropriate for matters of substance.
The local authority should have ensured that a lip reader was made available to support M as a deaf person at ALL meetings as soon as the need was confirmed by Dr Austen in November 2018. Although there were attempts to engage M in face-to-face meetings for which lip speakers were booked, more efforts could have been made, particularly in respect of basic social work meetings and around the issues noted in contact.
The local authority should have provided information to M as a deaf person in an accessible format, interpreted into simple English using a lip speaker.
Point 9
The local authority should have made information to M as a deaf person with associated cognitive difficulties written in simplified English, at a reading level that was accessible.
The local authority should not have arranged supervised contacts without ever providing deaf awareness training for any of the contact supervisors, without ever using a lip speaker or an intermediary to assist M as a deaf person in contact, and without ever holding any review with the contact supervisors of the progress of contact.
The local authority should have provided deaf awareness training to the children's foster carer who was involved in providing information to M at the start of contact sessions.
The local authority should have ensured that, in considering the issue of procedural fairness in relation to M as a deaf parent, the SWET explicitly identified how they fulfilled the requirement to communicate adequately with a deaf parent. It was not enough simply to state that the SWET would be made available to M's legal representatives; that did not obviate the need for the local authority to fulfil its own responsibilities to M as a deaf person.
THE LAW
"a court may only make a care order or supervision order if it is satisfied – (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to the care being given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him…".
At the time when protective measures were put in place in respect of the children, they were both at risk of suffering significant harm, attributable to the care likely to be given to them by their parents, not being what it would be reasonable to expect a parent to give to them, if an order were not made.
The nature of the likely harm was psychological, emotional and physical, and is based upon the following facts:
1. M was vulnerable to forming relationships with men who abused and exploited her.
2. M had experienced domestic abuse at the hands of the father of her older children. Those children had suffered significant harm, emotional and physical harm as a result of being exposed to that abuse.
3. M's relationship with F was characterised by controlling and domestically abusive behaviour. There would be shouting and swearing and there were instances of physical violence.
4. M lied to the police in denying that there was domestic abuse in the relationship.
THE EVIDENCE
Domestic abuse
'M showed a very poor understanding of the effects of domestic violence on children and she was unable to move beyond her own trauma. This indicates that she has not adaptively processed her experience of being in verbally, emotionally and physically abusive relationships and therefore cannot cognize what it must be like for her children to witness arguments and unresolved conflicts between their parents. It is apparent that M believes arguments between couples are unavoidable, but she has a limited understanding of the impact of children's exposure to frequent, aggressive and unresolved parental conflict. Furthermore, she has an impoverished understanding of the effects of verbal and physical aggression, and together with her difficulties in tolerating frustration and regulating her behavioural responses, presents as a clear risk to A…'
Parents' capacity to meet the children's needs
'She struggles with the most basic concepts of parenting which she should know as she has prior experience of parenting her other children. It is my professional opinion that M's gaps in knowledge, together with her difficulties with ToM and mentalisation…cannot be bridged with professional input within A's timescales.'
a. ToM is not just about having a different perspective, it is about being able to empathise.
b. It means being able to understand that someone else has a mind different to your own, may think differently, may have different dreams, desires, wishes and aspirations.
c. The problem is that if a parent has gaps in their ToM, when a child develops their mind, it means the parent cannot understand why the child thinks and behaves in a different way.
d. Children don't have the vocabulary to describe all their feelings which come out through their behaviour.
e. There is also a likely significant issue during adolescence when the child tries to separate emotionally and psychologically from the parent.
f. In child development there are two crucial things – attachment and separation. In adolescent (which is difficult for any parent), deficiencies in a parent's ToM make it even more challenging, and make it difficult to negotiate and compromise.
'It is my view that M has considerable difficulties in theorising alternative scenarios. My concern is that if A does cry, then she will deny his feelings as she will experience his sadness or frustration as naughtiness. This pattern will lead to him developing a poor understanding of emotions and will damage him psychologically…It is her belief that children should be controlled, and this stems from her experience of being controlled as a child…',
and he went on to say –
'Her understanding of parenting seems to relate to parental control and
children being compliant with their parent's wishes.'
- M has an inadequate knowledge of food, feeding and hygiene and a poor understanding of the potentially harmful impact of her lack of knowledge and understanding.
- M has inadequate knowledge and understanding of a child's development and is therefore unable adequately to meet the children's changing developmental needs.
- M has inadequate knowledge and understanding of the need to provide adequate and consistent stimulation for the children.
- M has inadequate knowledge and understanding of the importance of consistent routines and the need to set boundaries for the children.
- M has inadequate knowledge and understanding of the need to provide a physically safe environment for the children.
- M has inadequate knowledge of and lack of insight into a child's basic health needs.
- M has an inadequate degree of empathy or insight into a child's emotional needs.
- M presents a risk to the children's welfare and safety in the context of unsupervised contact.
THE REALISTIC OPTIONS FOR THE CHILDREN'S CARE
DECISION
Postscript