Deaf Awareness Week: fairness for deaf parties in care proceedings

Rounding off Deaf Awareness Week, Pupil Barrister, Lyana Chan considers the recent authority of Re A and B (Children) (Deaf Parent – Assessment and Practice) [2021] EWFC 10.

Background

These were care proceedings for two very young children – A (DOB 10.09.2018) and B (DOB 12.01.2020). Neither child had lived with the parents; A was placed with foster carers at three days old, and B was placed with A soon after her birth. A and B are the youngest of M’s children. M’s older children had previously been subject to public law proceedings, some of those children were made subject to final care orders and a plan of long-term fostering in 2010. In 2013, final care orders were made in respect of M’s other older children, in 2015, they were made subject to placement orders and in 2016 they were adopted in a joint placement.

Parents are M and F. At the FH, both parents accepted the children cannot reside with them, but opposed a plan of adoption. Mother had initially sought for the children to be returned to her care, but she later changed her position, being of the view that she was not currently in a position to care for the children. Mother did not accept that she was unable to care for the children. She said that her needs had not been properly understood or supported by the LA; that she had not had a fair opportunity to look after the children with support.

The Local Authority (‘LA’) had applied for care and placement orders for both children; the final plan was to place the children in an adoptive placement together. The LA amended its final care plans to seek an open adoptive placement.

Within the proceedings concerning M’s older children, M was assessed as lacking capacity to conduct proceedings and she was represented by the Official Solicitor (‘OS’).

The LA issued proceedings re A on 12.09.2018. An interim care order (‘ICO’)was granted on 13.09.2018.  The OS was invited to act as litigation friend for M.

Psychologist, Dr Allen was instructed to complete an updated capacity assessment (he had previously completed an assessment of M in earlier proceedings regarding M’s older children). Dr Allen concluded that M was learning disabled with extremely low cognitive ability.  He also concluded that M was of insufficient mental capacity to conduct care proceedings and necessitated being represented by the OS.

Care proceedings re B were issued on 14.01.2020. An ICO was granted on 17.09.2020.

Decision – the Court approved the LA’s final plans.

Deafness – implications

• M was profoundly deaf. The cause of deafness is not clear.  Meaning of ‘deaf’ was addressed by the judge at §16 – 19 of the judgment.
• Treatment of how a deaf person should be treated in law was addressed at §20 – 25 of the judgment.
• Reasonable adjustments by the LA are considered at §26-33 of the judgment.
• Reasonable adjustments by the court are considered at §34-44
• Within this case, no party sought findings arising from any alleged breach of the LA’s duties. The court was satisfied that M had been properly assessed by virtue of the expert assessment undertaken by Dr Sally Austen, specialist consultant clinical psychologist for Deaf people and Dr Andrew Cornes, consultant counselling psychologist.
• In evidence, Dr Austen advised that in order for professionals to make any progress with M, they need to know what they don’t know.
• Professionals need to be ‘deaf aware’: firstly, they need to be able to notice any communication breakdown and adapt to ensure the communication works, and secondly, being aware that the deaf person may have knowledge gaps, because they have missed communication, not necessarily because they are learning disabled.
• Dr Cornes was instructed to undertake the parenting assessment. Dr Cornes’ recommendations about M had direct implications for practice.  He recommended that M required full access to information via a lip speaker and note takers, with constant checks to ensure that she has understood the communication.
• Notwithstanding, the judge made 12 points at §142 of the judgment as to lessons to be learned in relation to the approach to deaf parents. These are considered below:

‘deaf’ – what does this mean?

1. The Advocate’s Gateway Toolkit 11: Planning to question someone who is deaf (January 2018) (‘the Toolkit’) defines deafness in terms of audiology or cultural affiliation.
2. Medical model of deafness defines degree of deafness according to the extent of hearing loss (mild, moderate, severe, to profound deafness) and emphasises the use of equipment to facilitate communication e.g. hearing aids and hearing loop systems.
3. People with severe or profound hearing loss less likely to have any useful residual hearing and more likely to rely on sign language.
4. Considerable variability, with some severely deaf people making use of residual hearing.
5. In addition, some severely or profoundly deaf people communicate orally without sign language, either through choice or lack of opportunity to learn British Sign Language (‘BSL’).
6. The Royal Association for Deaf (‘the RAD’) uses the term ‘deaf’ as an umbrella term to describe people with all degrees of deafness. The term ‘Deaf’ refers to BSL users who consider themselves part of community proud of its language, heritage and culture.  The Deaf community espouses a cultural definition, less to do with decibels of hearing loss and more to do with cultural affiliation and the use of BSL.  Many deaf people do not consider deafness a disability.
7. The Toolkit is clear that deafness is not a learning disability; there is the same range of intellectual ability in the deaf population as the hearing population. A substantial number of deaf people experience language and educational deprivation during development and may not have fulfilled their true intellectual potential.
8. Such deaf people are often vulnerable, with limited language, poor social awareness and reduced understanding of complex topics.
9. Important to distinguish people with deprivation arising from developmental experiences from those with a learning disability.
10. The Toolkit makes it clear that there is no simple correlation between degree of deafness and intelligibility of speech; good speech does not indicate that a person is just ‘a bit’ deaf, nor does the presence of a hearing aid indicate full hearing.
11. In M’s case, she does not identify as culturally deaf and has never learnt sign language. The judge therefore considered her to be ‘deaf’ rather than ‘Deaf’ and as such, she should be treated as a person with a disability.

How should a deaf person be treated in law?

1. S6 Equality Act 2010 prohibits discrimination in relation to a disability which is a protected characteristic:

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.

2. Physical or mental impairment includes sensory impairments such as sight and hearing.
3. Article 13(1) UN Convention of the Rights of People with Disabilities 2006 –

‘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.’

4. Equality Act 2010, s20 requires public authorities to take reasonable steps and to make reasonable adjustments to avoid putting disabled people at a substantial disadvantage.
5. S20(6) specifically requires that where there is a requirement to provide information, the reasonable steps to be taken by the public authority include ensuring that the information is provided in an accessible format.

Reasonable adjustments by the LA

• An unusually limited number of reported cases dealing with deaf parents in public law proceedings.
• Re C (A Child) [2014] EWCA Civ 128 McFarlane LJ (as he then was) provided some guidance about the approach to be taken to cases involving parent with profound deafness (adapted from guidance of Baker J (as he then was) in Wiltshire Council v N and Ors [2013] EWHC 3502 (Fam) at §4. Explicit reference to the obligations on LAs imposed by the provisions of the Equality Act 2010:
• 18 ‘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 ability 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.’

Further guidance provided at §23:

(a) It is the duty of those who are acting for a parent who has a learning 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 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 (…).  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.

• In conclusion, McFarlane LJ said – ‘it is simply not an option to fail to afford the right level of regard to an individual who has these unfortunate disabilities.’

• In Re Y (Leave to Oppose Adoption) [2020] EWCA Civ 1287, The Court of Appeal was invited to give updated guidance in the new landscape of remote and hybrid hearings, but such was declined, instead preferring to deal with the wider issues by referring the matter to the President of the Family Division and to MacDonald J, who has published guidance on the conduct of remote and hybrid hearings in the family jurisdiction.

• Baker J did however reiterate the core aspects of the earlier guidance in Re C (A Child) [2014] EWCA Civ 128:

• 3 ‘…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 the at the proceedings are issues (…) In the case of remote of 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…’.

Lessons learned from Re A and B (Children) (Deaf Parent – Assessment and Practice) [2021] EWFC 10 in relation to the approach to deaf parents

142 of judgment:

• The LA should have ensured that the SW 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 LA’s duties to M as a parent with protected characteristics under the Equality Act 2010.

• The LA 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 SW 3 was not accessed in a timely fashion. The LA should have ensured that all SW 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 discussions about everyday matters and arrangements, was not appropriate for matters of substance.

• The LA 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 SW meetings and around the issues noted in contact.

• The LA 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 LA 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 LA should have provided deaf awareness training to the children’s foster carer who was involved in providing information to M at the start of the 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 LA to fulfil its own responsibilities to M as a deaf person.

Reasonable adjustments by the court:

So, what reasonable adjustments should the Family Court make to ensure fairness for deaf or hearing impaired parties?

1. Reasonable adjustments: to remove barriers for people with disabilities (Equal Treatment Bench Book (ETBB), 2018). Effective communication is essential in the legal process.
2. Lip speakers: lip speakers are registered professionals who are trained to speak very clearly with lip patterns that are as easy to read for the deaf person as possible.  In Re A and B (Children) (Deaf Parent – Assessment and Practice) [2021] EWFC 10 , two separate lip speakers were provided by the court,  There was also a single out-of-court lip speaker.  Her role was to relay what was being said out of court to M.
3. Proper timetabling and case management: the Toolkit advises that timetabling in cases involving lip speakers needs to be tailored to concentration span and interpreter fatigue.
4. Breaks: in this case additional strain was caused by the remote nature of the hearing. 15 minute breaks were provided every 45 minutes and longer lunch breaks to ensure proper rest time.  During M’s oral evidence, 10 minute breaks were provided every twenty minutes.
5. Intermediary: in Re A and B (Children) (Deaf Parent – Assessment and Practice) [2021] EWFC 10, a registered intermediary, Chris Bojas, was also provided. Mr Bojas is profoundly Deaf and uses BSL as his first language.  Bojas had provided a report making recommendations about special measures to facilitate the best communication with M during the court proceedings.

As it is Deaf Awareness Week we feel it is important for all practitioners to focus on ensuring fairness in care proceedings.

Written by Lyana Chan, Pupil Barrister, Unit Chambers.