Children law cases and parents with learning disabilities

The case of XX, YY and Child H (Rev1) [2022] EWFC 10 (In the Family Court at Nottingham, heard before Mrs Justice Knowles) concerned an application for a care order and placement order for a boy, H, who is 17 months old. The local authority is the applicant. The first respondent is H’s mother, XX and the second respondent is H’s father, YY. The parents are of Romanian origin and live together as a married couple. When XX gave birth to H she appeared distressed and confused, with medical staff being concerned that she may have learning or cognitive difficulties [10]. The court sanctioned the removal of H from XX and he was placed in foster care and has remained there ever since [11].

In his initial statement, the father questioned the jurisdiction of the courts of England and Wales in relation to H because of H’s links with Romania. HHJ Rogers transferred the case to a High Court Judge. The Official Solicitor was also invited to act as the mother’s litigation friend. In February 2021, the Romanian consulate asked the parties to invite the court to consider transferring the case to Romania. The father indicated his wish to apply formally for a transfer pursuant to Art.15 of Council Regulation (EC) No. 2201/2003 (known as BIIA) but later decided that he wished to remain in the United Kingdom and sought permission to withdraw his application.

A cognitive assessment of XX was conducted [24], the results showed among other things, a low level of cognitive ability and a lack of capacity to conduct proceedings. Recommendations were made to have an interpreter, a PAMS assessment, and alterations to be made to the way in which XX gave evidence [25].

Throughout proceedings, YY has sought for H to be placed with either him and XX or with his family [30]. The children’s guardian recommended that returning H to his birth parents would not be safe for H because he may be neglected or even inadvertently physically harmed in their care [35].

The judge addressed the legal position [40]. The Judge referred specifically to cases which involved a parent with learning disabilities including, Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8 and Re D (A Child) (No 3) [2016] EWFC 1 and quoted as follows:

“25. In a case such as this it is vitally important always to bear in mind two well-established principles. The first is encapsulated in what the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134:

‘Family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained (emphasis added)”.

The Judge was also required to consider the provisions of Art.15 of BIIA due to the international element in this case and the fact these proceedings were issued before 31st December 2020. By Art.15, the court may, by way of exception, request that the courts of another member state assume jurisdiction for proceedings or part of proceedings concerning a child if it considers that:

“…the court of the other state would be better placed to hear the case or a specific part thereof and where this is in the best interests of the child.”

The judge outlined a three-stage process. Namely, does the child have a particular connection to another member state? If so, would the court of the other member state be better placed to hear the case or a component of it? If so, would transferring the case to the other member state be in the best interests of the child [45-46]? The judge noted that each stage depends on the other and the key focus is on any benefits of the transfer itself, as outlined in Re N (Children) [2016] UKSC [47]. She also touched on judicial guidance as outlined in Re E (A Child) [2014] EWHC 6 (Fam), which states that Article 15 is permissive not mandatory [48-49]. The judge noted that the conditions for an Article 15 transfer in this case had not been made out [101].

The judge then addressed the evidence in the proceedings [50-75] and applied the extended welfare checklist set out in s1(4) of the Adoption and Children Act 2002 [76]. The judge noted that she had no doubt whatsoever of the deep love that H’s parents had for him. However, neither parent accepted that there were deficits in XX’s ability to care and adapt to H’s changing needs [81]. The judge stated that despite all the help available from adult services, this would not plug the gap and equip XX to resume H’s care [86].

The judge balanced the matters set out in the welfare checklist [97]. In doing so, she questioned the level of certainty as to H’s parents’ intentions of remaining in the UK or returning to Romania [97]. She also queried the level of support provided, questioning the benefits of a return to Romania whereby there are very significant concerns as to XX’s ability to care for H [98]. Looking at all the aforementioned factors, the judge made a care order and placement order.

Before concluding her judgment, the judge gave guidance which will be helpful in cases where a parent has a learning disability [105]. She suggested the following:

(1) The Good Practice Guidance on Working with Parents with a Learning Disability should be an essential part of the continuation training for social workers and manager [106];

(2) There should be timely referrals to adult social care for a parent with learning difficulties, without a very lengthy gap after a referral [107];

(3) Parents with learning difficulties involved with children’s social care where a child is on a child protection plan should have their own advocate as a priority. A referral for that service should be made as soon as is practicable [108]; and

(4) The support available to a parent with learning difficulties should be distilled into a simple document identifying what is available, how often it is available, timescales for its availability and who is responsible for its delivery. Such a document should be shared with children’s social care (if involved) and discussed with a parent in the presence of their advocate [108].

Eleanor Suthern is a future pupil barrister at Spire Barristers.