Introduction
In this short article written by Consultant Barrister, Kerri O’Neill, we will focus on the issue of parents with variations of learning disabilities participating in public law proceedings, in order to drive awareness in line with Learning Disability Week 2021.
There are a number of resources, guides and requirements that must be complied with when representing and or accommodating parents with learning disabilities in public law proceedings.
It should be noted that the rules and requirements concerning the engagement of vulnerable/protected parties equally applies to private law proceedings. This article will consider such rules and requirements for both public and private law proceedings. The question of how parents with a) learning disabilities should be assessed, and, b) how and when Local Authorities can bridge the gap in supporting parents will be considered in a future article.
Family Procedure Rules
Family Procedure Rules Part 3A and PD3AA have been in force for some time now. These rules and practice directions set out who may be a Protected Party within proceedings, and, whether the court should make any “participation directions” to assist the Protected Party in participating in the proceedings or giving evidence.
FPR 3A.7 sets out what the court must have regard to when considering whether to make one or more participation proceedings:
When deciding whether to make one or more participation directions the court must have regard in particular to—
(a) the impact of any actual or perceived intimidation, including any behaviour towards the party or witness on the part of—
(i) any other party or other witness to the proceedings or members of the family or associates of that other party or other witness; or
(ii) any members of the family of the party or witness;
(b) whether the party or witness—
(i) suffers from mental disorder or otherwise has a significant impairment of intelligence or social functioning;
(ii) has a physical disability or suffers from a physical disorder; or
(iii) is undergoing medical treatment;
(c) the nature and extent of the information before the court;
(d) the issues arising in the proceedings including (but not limited to) any concerns arising in relation to abuse;
(e) whether a matter is contentious;
(f) the age, maturity and understanding of the party or witness;
(g) the social and cultural background and ethnic origins of the party or witness;
(h) the domestic circumstances and religious beliefs of the party or witness;
(i) any questions which the court is putting or causing to be put to a witness in accordance with section 31G(6) of the 1984 Act( );
(j) any characteristic of the party or witness which is relevant to the participation direction which may be made;
(k) whether any measure is available to the court;
(l) the costs of any available measure; and
(m) any other matter set out in Practice Direction 3AA.
The measures available to the court are:
3A.8
(1) The measures referred to in this Part are those which—
(a) prevent a party or witness from seeing another party or witness;
(b) allow a party or witness to participate in hearings and give evidence by live link;
(c) provide for a party or witness to use a device to help communicate;
(d) provide for a party or witness to participate in proceedings with the assistance of an intermediary;
(e) provide for a party or witness to be questioned in court with the assistance of an intermediary; or
(f) do anything else which is set out in Practice Direction 3AA.
(2) If the family court makes a direction for a measure which is not available where the court is sitting, it may direct that the court will sit at the nearest or most convenient location where the family court sits and the measure is available
(3) If the High Court makes a direction for a measure which is not available where the court is sitting, it may direct that the court will sit at the nearest or most convenient location where the High Court sits and the measure is available.
(4) Nothing in these rules gives the court power to direct that public funding must be available to provide a measure.
(5) If a direction for a measure is considered by the court to be necessary but the measure is not available to the court, the court must set out in its order the reasons why the measure is not available.
When the duties of the court apply and recording reasons for decisions made under this Part.
Application for Participation Directions:
Applications can be made with the initial application or in a subsequent interim application (3A.10). The matters to be contained in such an application are contained at PD3AA 6. In the circumstance of public law proceedings, the Local Authority ought to raise it in the C110A application form. Often client’s vulnerabilities are identified at the first or second hearing. If proceedings are already in motion, a C2 application should be issued by the party’s representing solicitor.
Procedures for fair participation
Practice Direction 3AA sets out the procedure and practice to be followed to achieve a fair hearing by providing for appropriate measures to be put in place to ensure that the participation of parties and the quality of the evidence of the parties and other witnesses is not diminished by reason of their vulnerability.
PD3AA 1.3 remind us that It is the duty of the court (under rules 1.1(2); 1.2 & 1.4 and Part 3A FPR) and of all parties to the proceedings (rule 1.3 FPR) to identify any party or witness who is a vulnerable person at the earliest possible stage of any family proceedings.
Practitioners should remember that participation directions for a Protected Party are not simply limited to giving evidence, but also general participation in the proceedings. PD3AA 4.2 addresses this: the court may use its general case management powers as it considers appropriate to facilitate the party’s participation. For example, the court may decide to make directions in relation to matters such as the structure and the timing of the hearing, the formality of language to be used in the court and whether (if facilities allow for it) the parties should be enabled to enter the court building through different routes and use different waiting areas.
Translating this in to the real world, these provisions could cover:
i. Breaks during case management hearings
ii. Physical adjustments / rearrangements of the court room layout
iii. Intermediary attendance at the hearing to help communicate the content of the hearing to the client
iv. Advocates using more simple terms that Protected Party may relate to more such as “the social worker” rather than “the Local Authority,” “worried about” rather than “it is alleged”
v. Next hearing dates to be provided in a simple, large font note for the client, or, entered in to the client’s diary
vi.“easy read” versions of documents
Participation of a Vulnerable/Protected Party when giving evidence:
PD3AA 5.2 sets out that when the court has decided that a vulnerable party, vulnerable witness or protected party should give evidence there shall be a “ground rules hearing” prior to any hearing at which evidence is to be heard.
Considerations and directions that may be made by the court are set out in PD3AA 5.2.
Ground Rules Hearings:
Ground Rules hearings are not limited to clients assisted by an intermediary. Ground Rules hearings are an opportunity to take stock of a participant/witness’ vulnerabilities and for the court and all professionals to map out, and, agree a method of working / presenting in the court room that takes account of the protected party/vulnerable person’s difficulties and seeks to ensure the proceedings take account of their vulnerabilities.
Tools for Professionals:
It is not yet mandatory that Family advocates undertake the Vulnerable Witness training, however, it is very much recommended that all advocates eventually take up this excellent and helpful course.
All advocates should be read and apply the Advocates’ Gateway Tool available at: https://www.theadvocatesgateway.org. The importance of this free resource cannot be overstated.
Intermediaries:
Tool Kit 16 of the Advocates’ Gateway sets out a Step by Step guide to intermediaries within proceedings; https://www.theadvocatesgateway.org/images/toolkits/16-intermediaries-step-by-step-2019.pdf
Other resources:
The President of the Family Division published a short reminder in the form of guidance on 10.04.2018 which can be read here.
All partitioners should consider the “Good practice guidance on working with parents with a learning disability” issued by the Working Together with Parents Network and the Norah Fry Centre in September 2016.
Case Law:
There are a number of leading authorities which consider how to accommodate and assess (in public law proceedings) parents with learning disabilities. The most recent leading case of A Local Authority v G (Parent with Learning Disability) [2017] EWFC B94 sets out the following points:
– In this case The mother had a learning disability and partial deafness in both ears. The father had been her carer since their marriage in 2013. During the proceedings the mother had the support of:
i. an intermediary throughout the three week hearing,
ii. supporting advocate throughout the three week hearing,
iii. two lip-speakers translating for her.
iv. Ground rules were put in place and FPR 3A and PD3AA taken into account, as well as the Advocates Gateway Toolkits.
v. An ‘easy read’ judgment was annexed to the main judgment for the purpose of the parents and children.
– The court noted that a parent must not disadvantaged simply because of their disability
– Re D (A Child) (No 3)[2016] EWFC 1 and Re Guardian and A (Care Order: Freeing Order: Parents with a Learning Disability) [2016] NI Fam 8 established the following principles and remain good law:
i. Parents with learning difficulties can be ‘good enough’ parents when provided with the requisite and ongoing emotional and practical support.
ii. The idea of ‘parenting with support’ must be the approach taken to parents with learning difficulties.
iii. Parents with learning difficulties must not lose care of their children on the basis of evidence that would not hold up against parents without such difficulties. Parents with learning disabilities should not be measured against parents without disability and the court must be mindful of the risk of direct and indirect discrimination.
iv. Multi-agency working is critical to provide effective support and the court has a duty to ensure that this is done.
v. Welfare arguments should not obscure the needs of the parent due to the disability and the impact on parenting capacity.
vi. Courts should ensure that the ‘supposed inability of the parents to change is not … an artefact of professionals’ ineffectiveness in engaging with the parents in an appropriate way.’
– Local Authorities should have a protocol for working with parents with learning disabilities
Take Away Points:
- There is a process for determining whether your client is a vulnerable or protected party – don’t be afraid to engage these rules!
- There are a wide range of participation directions that can be personalised for your client
- A Ground Rules Hearing is not only for cases involving intermediaries
- Access and utilise the Advocates’ Gateway
Our Consultant and Senior Consultant Barristers at Unit Chambers are experienced in representing parents with learning disabilities and advising Local Authorities on implementing protocols. In particular, our CEO and Senior Consultant Barrister, Lisa Edmunds and Consultant Barrister, Kerri O’Neill have both completed the FLBA training for vulnerable witnesses and are highly experienced in such cases.
If you would like further information please contact our Assistant Practice Manager, Joshua Brindle, on [email protected]
Written by Unit Chambers Consultant Barrister, Kerri O’Neill.