Re D

I feel slightly sad and uncomfortable returning to this blog after a long hiatus whilst I’ve been on maternity leave with a post about Re D.

Re D was described by Sir James Munby as ‘wrenchingly sad’. It concerns D, a four year old boy, and his parents, both of whom have learning disabilities. Social services were supporting D’s family from the point of his birth onwards and made initial assessments that D’s parents would be able to care for him effectively if they in turn received appropriate support. At some point in 2014, however, that assessment changed and the local authority placed D in foster care in April that year where he has remained ever since.

Getting to this judgment has been a harrowing journey. The parents lack capacity to litigate but were nevertheless required to make their own applications for legal aid. For complex reasons relating to the history of the case, D’s parents were not eligible for non means-tested legal aid and they found applying for means-tested legal aid extremely challenging. They were, thankfully, represented pro bono when necessary.

The final hearing, in November/December 2015, was to decide whether the local authority’s application to have D placed in a permanent adoptive home should be approved. The judge describes the case as ‘the most difficult and unusual care case I have ever had to try’. And it must have been because it involves a very finely balanced decision. I cannot do justice to the evidence presented here and would urge you to either read the judgment or the excellent summary provided by Suesspicious Minds.

It is agreed that D’s parents love him and that D has a need for a consistent identity which can best be met by being raised with his birth parents. D has some developmental delay and will need more support than another child his age. These things are not controversial and do not provide strong evidence either that D needs to be adopted or remain with his parents.

The judge finds that the real reasons why the local authority has changed its assessment of the family lies in how they care for D.

At para 137 the judge tells us that his mother, in particular, finds it hard to keep him safe. She can understand advice about keeping D safe, but finds it hard to implement in novel situations, when the hazard is new, or when she is distracted. And at para 140 he explains that she has further difficulties building relationships with professionals or ‘accepting guidance, advice or support when it does not fit in with her own views’.

Taken together these problems with thinking rigidly and accepting guidance made it hard for the professionals to identify and support the mother to change unsafe parenting practices. This was not for want of trying. It is worth noting that the family’s social worker described herself as really wanting them to succeed and they were allocated a support worker who visited 80 times in a little over a year.

Ultimately, the judge decides adoption is appropriate on the basis that the initial plan to place D with his parents was unrealistic (para 160).

This case clearly involved considerable oral and written evidence which I have not seen and Sir James Munby, more than any other judge, is on record as recognising the extreme seriousness of authorising the state to remove a child from his parents against their wishes. I recognise that, like the judge here, it is incredibly difficult to envisage a practical care package for this family which would allow D to flourish in his parent’s care. But it is also incredibly difficult to parse the reasons given in any way which does not ultimately seem to be saying D must be removed due to his parent’s (and in particular his mother’s) learning disability.

So I cannot comment constructively on the outcome of the case. I do not like it but I do not think I could have done better.

I do, however, think there are difficulties with the way in which this judgment has been presented.

The primary audience for this case is D and his parents. The reason for the decision reached needs to be communicated clearly to them because at present that have been given very confusing information.

D’s parents love him and they have made efforts to meet his needs. They were asked to change the way they parent him. They were given a care package which must have told them that the local authority thought that with support they could parent him. They have now been told they cannot parent him.

Although the judgment concludes that the reason they cannot is that the local authority erred in assessing them as having parenting capacity which they do not have (the reasons for this error are not clear) the bulk of the judgment is devoted to describing deficiencies in the parent’s capacities. This in turn has been picked up by the media and widely reported, possibly causing distress to the parties concerned. But the difficulties the parents had were known long before 2012 when the first care order came into effect. These difficulties are not what justified the judgment reached. The challenge the local authority had in meeting those needs is what counted.

It is ethically problematic, as Suesspicious Minds has already pointed out, to justify the removal on the basis of the mother’s rigid thinking style and the fact that although she ‘does not want to be difficult or challenging’, her ‘personality and character traits’ make it difficult for her to work with professionals. The first part is effectively, justifying the removal on the basis of the mothers learning disabilities and if this is what the judge intended this should be stated explicitly. Problematic ‘personality and character traits’ do not amount to a disability but if they amount to an independent criteria justifying the adoption then this is a very very low threshold for the local authority to have to meet before placing a child for adoption. On reading the whole case it is clear that the mother’s personality and learning disabilities interact in such a way as to make it hard for her to parent and hard for others to support her too. Removal on these grounds may be justified. But the judgment needs to be explicit that this is what we are doing if, as a society, we are to be challenged to support families with similar difficulties more effectively in future.

Finally, these cases always make me wonder how proficient any of us would appear as parents if our children were subject to care orders, we were subject to the stress of being continuously scrutinised and knew that the cost of failure might be a permanent placement for adoption. After reading this judgment I went and looked up the Parenting Assessment Manual used to assess the skills of D’s parents and discovered the extent of my own deficiencies (I’m too ashamed to list them all but apparently you are meant to treat cradle cap). That does not mean I disagree with the overwhelming weight of professional opinion in favour of placing D for adoption. It means that families where one or more parent has a learning disability may still face an uphill struggle challenging discrimination.

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