This article first appeared in the Law Society Gazette, 21 June 2024.
The theme of Learning Disability Week 2024 (17-23 June) is 'do you see me?'. This made me think about the cases that public law practitioners see all too often – where one or both parents have a learning disability and the local authority issues proceedings because of concerns about the ability of parent(s) to cope with caring for a child. All too often, such cases do not have a positive outcome. Do these parents feel seen?
Would something akin to a Family, Drug and Alcohol Court (FDAC) work for parents with learning disabilities? FDAC is a specially designed family court system for families who struggle with substance misuse, where the court, professionals and the family work closely together during the process. The 'problem-solving' FDAC's key features could work well for other parents.
26-week time limit
Parenting assessments for people with learning disabilities are undertaken using the PAMS (Parent Assessment Manual) criteria within six to 12 weeks. This may seem like a long time, but these parents need longer to assimilate information and to be able to act on it independently.
The 26-week limit to conclude proceedings is too short for many. There is insufficient time to ensure that they have understood the proceedings, to offer lengthier assessments, or to test whether a community support package may work long-term.
Proceedings cannot be indefinite, but accepting that they need to go on for longer at the outset will ensure parents have been afforded every opportunity to show that they can provide 'good enough' parenting.
Residential parenting assessments
Parenting assessments are usually residential but take place away from their own homes. These parents are often negatively assessed on issues relating to personal care, but no consideration appears to be given as to whether they would be capable of doing these things in a familiar environment. Priority should be given to assessments taking place in the home (with daily support if necessary) if there are no immediate risks to the child by doing so.
Support packages
Some parents with learning disabilities have the invaluable support of a charity such as Mencap in their daily lives.
In FDAC proceedings, parents undertake an assessment with a range of professionals before the hearing to ascertain what support they need to be able to look after their child(ren). This allows necessary preparations to be put in place early on.
Having an adult social worker or member of staff from a charity present to undertake an assessment of the parent can provide evidence to the court about gaps in the parents' ability that could be addressed with support.
Understanding of proceedings
Usually, an expert intermediary assessment of a parent is undertaken to ascertain whether they need assistance in understanding proceedings. Normally this requires a Part 25 application to be made to the court, for the assessment to be arranged, the assessment to take place, and either a hearing or report to be provided recommending whether the parent requires such assistance.
The need for a Part 25 application and associated cost, especially when it is clear to the parties that an assessment is needed and the parent's learning disabilities are a reason for the matter being in proceedings, seems unnecessary. The assessment is also rarely done at the beginning of proceedings. It would be better to address this at the outset, particularly given everyone in the court is talking about this parent, their abilities and their child.
In FDAC proceedings parents are assessed before the first hearing. Parents with learning disabilities would have the opportunity to meet with an intermediary for an assessment. A hearing would follow immediately after the assessment, in which the assessor would explain to the court and all the legal representatives the parents' limitations and how to conduct proceedings.
This already happens in the form of a hearing or report, usually after proceedings have commenced. But doing it at the beginning will demonstrate that the court is making the proceedings as understandable to these parents as possible.
Hearings
In the FDAC there are regular non-lawyer/informal reviews, allowing the team to obtain updated information and make the parent aware that they have a team working to support them.
Parents can feel confused and overwhelmed by the formal nature of court hearings. Less formal reviews with the support team would be helpful in that they would allow these parents to be able to express their views openly. The process would also work more slowly so that they would be kept informed of developments in their matter.
It may be a long time before such a court is created, but I would like to think not.