This is a post by regular contributor, Abigail Bond. Abigail is a barrister at St John’s Chambers, Bristol who specialises in Children Law (mainly care proceedings), and Court of Protection health and welfare matters. She tweets as @AbigailBond1.
Re A & B (Children) (Deaf Parent – Assessment and Practice) [2021] EWFC 10
This case is about two very young children, aged 2 and 1. Neither had ever lived with their parents and both had been placed with foster-carers since birth. The question for the judge who heard the final hearing over 17 days was whether they should be placed in long-term foster-care or placed for adoption. The local authority sought care and placement orders on the basis that it would try to find an adoptive family who would promote direct contact between the children and the mother. The mother accepted that she could not look after the children at the moment but hoped to be able to do so in the future. The father, who had not been to contact sessions for some time and attended only the first day of the final hearing, neither supported nor actively opposed the local authority’s proposals.
The judge made care and placement orders at the end of the hearing. She found that the children would be at risk of harm if they were returned to the mother’s care, in part because the mother was vulnerable to forming abusive relationships, as she had done with the father of A and B and the father of her older children. This was compounded by the fact that the mother was evasive about the extent of the father’s violence and its effect on the children, and dismissed the need to engage with the Freedom Programme or similar support. The judge also found that the mother had many gaps in her parenting knowledge, had poor ‘theory of mind’ (by which she meant the ability to empathise and to understand the children’s behaviour as they developed) and failed to recognise that there was anything problematic in her parenting style or that she could benefit from teaching or support. Set against that background, the holistic analysis of the benefits and detriments of long-term fostering and adoption for these children led the judge to conclude that the care plan for adoption was the only realistic option.
This is the sort of issue which is decided in family courts up and down the country on a regular basis. What makes this case stand out, however, is the fact that the mother was profoundly deaf and, as the judge said, there is ‘an unusually limited number of reported cases dealing with deaf parents in public law proceedings.’
The most well-known of these cases is Re C (A Child) [2014] EWCA Civ 128 in which the Court of Appeal emphasised the need for the early instruction of an expert to assist professionals with understanding how best to facilitate communication with the deaf person. That judgment also sets out how the local authority’s failure to follow that advice led to the father being at a disadvantage. The Deputy High Court Judge in Re A & B sets out ‘some lessons that may be learned in relation to the social work practice and procedure with the mother as a deaf person’, which she anticipates might be of wider interest in other similar cases. Those 12 lessons are summarised at para. 142. The most significant are covered below.
The legal context underpinning the lessons to be learned comes from the Equality Act 2010:
- The judge was satisfied that the mother should be treated as a person with a disability due to her deafness. The mother was also to be treated as disabled for the purpose of the Equality Act 2010, section 6 of which provides that a person (P) has a disability if P has ‘a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.’
- Section 20 of the Equality Act 2010 requires public authorities to take reasonable steps and to make reasonable adjustments to a provision, criterion or practice to avoid placing a disabled person at a substantial disadvantage. This can include ensuring that necessary information is provided to the disabled person in an accessible format. The duty applies not only to the way the local authority must approach social work practice with a deaf parent but also requires the court to take reasonable steps to ensure that such a parent can participate effectively and fairly in the proceedings.
- As far as the proceedings themselves are concerned, the duty on the court is underlined by guidance in the Equal Treatment Bench Book highlighting the practical ways in which reasonable adjustments should be made. This is a reference book for the Judiciary of England and Wales which aims to increase judicial awareness and understanding of the different circumstances of those who come before courts and tribunals, so as to enable effective communication and participation. In this case, the mother was assisted by lip-speakers (a lip-speaker is a hearing person who has been professionally trained to be easy to lip-read) and an intermediary. The lip-speakers provided by the court were used to tell the mother what was being said in court and what was being asked of her in her oral evidence. The mother was also assisted by a third lip-speaker outside of court. A registered intermediary, who was himself profoundly deaf and whose first language was BSL, was used throughout the hearing. He had provided a report explaining that the mother used some signs to support her communication and recommending the use of special measures. His role was to ensure that the mother understood what was happening so that she could participate effectively in the hearing. Significant breaks were provided throughout the court day to avoid cognitive overload and fatigue throughout this process, which was exacerbated by the fact that the hearing took place entirely remotely. The court was also referred to the Advocate’s Gateway Toolkit 11: Planning to question someone who is deaf.
- It is consistent with the court’s duty to ensure accessibility of information that the judge prepared a simplified version of the judgment, which was read aloud to the mother at the conclusion of the hearing with the help of the lip-speakers and the intermediary.
The lessons
- Professionals working with a deaf parent need to be ‘deaf-aware’. This includes understanding why deaf people cannot always communicate effectively by lip-reading or reading written English, not assuming that nodding means that the deaf person has understood what has been said, and being aware that there may be knowledge gaps due to missed communication over the years. Dr Austen (the clinical psychologist with expertise in working with deaf parents, instructed on behalf of the mother) confirmed that basic deaf awareness, adequate for the role of a care or support worker, could be taught in a day. The local authority had fallen into error at the outset in that the pre-birth assessment was undertaken by a social worker who did not have any expertise in working with deaf parents, who assumed that the fact that the mother could lip-read meant that she could understand everything, and who side-lined the mother’s deafness by failing to even attempt to analyse the effect of it on her parenting. Moreover, the need for deaf awareness training was not prioritised even after Dr Austen had flagged it up: the contact supervisor had never before worked with a deaf parent and had neither received nor been offered any deaf awareness training; neither had the foster-carer, who undertook the handover to the mother at the start of every contact session by giving her an oral update as to how the children had been. Furthermore, the social worker allocated from February 2019 was not provided with the training until November of that year.
- In every case involving a deaf parent, a cognitive and capacity assessment should be undertaken at the outset of the proceedings by a psychologist with specialist experience in the assessment of deaf adults. This proved to be pivotal in this case. In proceedings concerning some of her older children the mother had been represented by the Official Solicitor following a psychological assessment which had concluded that she lacked the capacity to conduct proceedings. An addendum was obtained for these proceedings from the same psychologist, who found once again that the mother was learning disabled with extremely low cognitive ability and that she lacked litigation capacity. Her legal representatives then sought a specialist assessment by Dr Austen. Dr Austen’s conclusions were markedly different from those of the previous psychologist: in her opinion the mother was capable of conducting the proceedings, did not have extremely low intellectual ability or a learning disability, did not have a severe memory impairment, did not lack a language system, and did not have extremely poor ability to understand spoken language. Dr Austen confirmed that the difference in time between the two reports (about a month) was not explained by the mother having made huge improvements since the original assessment, concluding that the earlier assessment was inaccurate. The Order inviting the Official Solicitor to act on the mother’s behalf was duly discharged.
- A specialist cognitive assessment is essential in order to understand the way that the parent communicates so that reasonable adjustments can be made by both social workers and the court. Dr Austen explained that the mother was bilaterally deaf but used spoken language to communicate, which she supplemented by lip-reading, aided residual hearing, drawing, writing, role play and gesture. Her lipreading was adequate (although generally lipreading has only has a success rate of about 50%); she had gaps in her knowledge as a result of her deafness and her historic and current social situation; her speech was difficult to understand; she had some mild language delay; and her reading was poor but not significantly below the average of 9 years for deaf adults of ‘normal’ intelligence. She recommended as a consequence that the mother‘s language skills would enable her to give evidence in court with the support of an intermediary, that all significant appointments with the mother should be attended by an intermediary and that whilst an intermediary with lip-speaking skills was preferable, a lip-speaker with deaf experience was better than an intermediary without any deaf experience. A lip-speaker would also be required in court.
- Even after receiving advice as to how best to facilitate communication with the mother, professionals did not always ensure that she was supported by a lip-speaker. It was clear, however, that a lip-speaker was provided at most LAC Review meetings and at an important meeting with the social worker in November 2019 to discuss the outcome of an assessment by Dr Cornes. The judgment also highlights other elements of poor communication practice: the social worker failing to meet with the parents to discuss the outcome of the local authority Adotion Decision Maker’s decision; failing to meet with them before preparing the final care plans; trying to use the father to communicate with the mother when he required an advocate himself.
- A specialist parenting assessment by an expert in deafness is required. In this case it was undertaken by Dr Cornes, a consultant counselling psychologist who was also instructed in Re C (A Child) [2014] EWCA Civ 128 where he was described as having had ‘a lifetime of experience in matters of communication between deaf people’. Reaching similar conclusions to Dr Austen about the way that the mother communicates, he recommended in his report in February 2019 that in order to provide support to help the mother improve her parenting skills, it was important for information to be given to her in an accessible format: interpreted into simple English using a lip-speaker; written in simple English; and provided by workers who have undergone deaf awareness training. He found, however, that the mother had considerable gaps in her parenting knowledge and critical difficulties with Theory of Mind which would interfere in the attachment relationship as the children developed. These could not be remedied within the children’s timescales. She had only a very basic understanding of her children’s developmental, emotional and social needs and a poor understanding of children’s behaviour (she considered defiance as an ‘illness’ to be treated with calpol). Moreover, an analysis of observed contact showed a lack of consistent interaction and ability to meet her children’s needs.
- Paragraph 10 of the Social Work Evidence Template (SWET) must be addressed in full rather than simply being treated as a box to be ticked on a prescribed form. This requires the social worker to answer the following question: 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? As the European Court of Human Rights reminds us in Venema v The Netherlands, it is essential in all care cases that a parent is ‘placed in a position where he or she may obtain access to information which is relied on by the authorities in taking measures of protective care or in taking decisions relevant to the care and custody of a child. Otherwise, the parent will be unable to participate effectively in the decision-making process or put forward in a fair or adequate manner those matters militating in favour of his or her ability to provide the child with proper care and protection.’ Where the parent is disabled, the obligation on the local authority to ensure the parent’s Article 6 rights to a fair trial (by keeping them informed, in a way they understand, about the progress of the case, the expectations upon them, and what they can do to address the concerns) requires proactive steps to be taken. The social worker’s attempt to address Para.10 in this case was considered to be ‘limited.’
Re A & B provides a helpful insight into how a local authority failed, from the pre-proceedings stage, to understand the mother’s needs as a deaf parent. Despite that, the court considered the deficiencies in the local authority’s assessment of the mother to be ameliorated by the thorough specialist parenting assessment undertaken by Dr Cornes.
For another relatively recent but more unusual care case involving a deaf parent, see A Local Authority v X & others [2020] EWFC 36 , where the mother had neither litigation capacity nor the capacity to give evidence in court but was assisted to participate as fully as possible in the proceedings by a bespoke DVD ‘interview’ process devised and undertaken by Dr Austen.
Feature pic : courtesy of Isobel Williams, with thanks.
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