Care proceedings involving disabilities and /or deafness

The Court of Appeal examined a case involving a father who was deaf, and overturned the Care Order and Placement Order, sending it back for rehearing    (it is something which you become painfully conscious of, when writing about a case involving a deaf person, how often the word ‘hearing’ is thrown around)

Re C (A Child) 2014

http://www.familylawweek.co.uk/site.aspx?i=ed128597

I became aware of this one a little while ago, but having been waiting for the judgment to be published.

If you ever have proceedings where one of the parents is deaf, the judgment is an absolute must-read – for social workers and for lawyers, but it also has some wider applicability, due largely to three issues.

I’ll deal with the wider applications first, and then the parts that relate specifically to parents with hearing disabilities.

Firstly, the Court of Appeal backing what Baker J said in Wiltshire v N and Others 2013   (sometimes Re A) http://www.familylawweek.co.uk/site.aspx?i=ed123147

In which Baker J gave the following guidance when dealing with parents who suffer from a learning disability:

(a) There is duty on those acting for the parent(s) to identify their client’s need for assistance in responding to questions and giving instructions, which must be considered by representatives at the outset of their instruction.  Any need for support must be addressed at the earliest opportunity. 
(b) When this is known prior to the outset of proceedings, on issuing, local authorities should draw the issue of competence and capacity to the court’s attention. In turn, on the day following issue, the court will give directions for the appointment of a litigation friend.  The new PLO envisages that in those circumstances the court should give directions for special measures at the case management hearing to take place by day 12 of the proceedings. 
(c) When the issue of capacity and competence is not identified at the outset, it should be addressed fully at the case management hearing.  At that hearing, those representing the parents should apply for special measures, where the case for such measures can be made out without any expert advice. Alternatively, where expert advice is necessary to identify the existence or extent of the learning difficulties, they should make an application in accordance with Part 25 of the FPR for an expert to carry out an immediate assessment of the capacity and competence of the party. 
(d) 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.  If the court is satisfied that an expert report is necessary to determine whether the party lacks capacity or competence and/or as to the extent of any special measures required, it may direct a further case management hearing to take place once the expert has reported so that detailed directions can then be given for the instruction of an intermediary and/or such other assistance as may be necessary.
(e) So far as funding is concerned, there is a distinction between the cost of obtaining a report from an expert as to capacity and competence, and the cost of providing services from an intermediary.  The former will, subject to the approval of the legal aid agency, whereas the latter, as a type of interpretation service, will be borne by the Court Service.  Those representing the relevant party should address these funding issues at the earliest opportunity.  They should obtain prior approval from the legal aid agency for the instruction of the expert and, as soon as possible, give notice to Her Majesty’s Courts and Tribunal Service that the services of an intermediary are likely to be required.

Baker J went on to give a very critical paragraph, and one which I think ought to be regularly cited in cases where parents have any form of learning or other disability

81. So far as the wider issues are concerned, I repeat my observation at paragraph 132 of the judgment in the Kent case:

“The last thirty years have seen a radical reappraisal of the way in which people with a learning disability are treated in society. It is now recognised that they need to be supported and enabled to lead their lives as full members of the community, free from discrimination and prejudice.  This policy is right, not only for the individual, since it gives due respect to his or her personal autonomy and human rights, but also for society at large, since it is to the benefit of the whole community that all people are included and respected as equal members of society.  One consequence of this change in attitudes has been a wider acceptance that people with learning disability may, in many cases, with assistance, be able to bring up children successfully.  Another consequence has been the realisation that learning disability often goes undetected, with the result that persons with such disabilities are not afforded the help that they need to meet the challenges that modern life poses, particularly in certain areas of life, notably education, the workplace and the family.”

{The Court of Appeal in Re C, here, endorsed the applicability of what Baker J had said in Wiltshire and that from para 72 of that judgment until the end, it was applicable in this case. Thus, an endorsement of that paragraph}

And the second issue is on the vexed and emotive issue of timescales. Whilst Baker J in Wiltshire had said that the twenty six weeks ought to still be possible but might not be capable of being met if the disability was identified late in proceedings, the Court of Appeal go a bit further

34. Finally in terms of the list of particular matters in this case, there was an unrealistic timescale afforded to the assessment process.  It will be all too easy for courts now to be driven by the 26 week deadline by which care cases should be concluded, but if there are particular aspects of the case that indicate that the timescale for assessment simply cannot provide an effective and meaningful process because of the disabilities of one or more of the individuals involved, that would seem to me to be a reason for extending the timetable for the case by a modest degree, rather than squeezing the assessment in and taking whatever assessment is available within that timescale.  The result of that option being chosen by the court in the final directions hearing has been that the appeal now, all these months later, is being allowed by consent.

And the final issue of general applicability, is the Court of Appeal’s profound disappointment in the timescales for resolving the appeal, particular in the context of a desire now backed by Parliament for 26 weeks to be the norm

12. The appeal mounted by the father was issued some six weeks after the judge’s decision, yet here we are, some seven months after the judge gave his judgment, hearing the appeal which in the event has been resolved by consent.  This period of some 30 weeks to determine an appeal at a time when cases at first instance now must, unless there are exceptional reasons, be undertaken from start to finish within 26 weeks, is untenable.  It is not necessary or helpful for me to descend into detail in describing quite how it is that we are where we are in the timetable.  Part of the reason for the delay was delay in extending public funding for the father to mount his appeal. 

Onto the particular issues and guidance in relation to deafness, it was notable here that the father had been educated to degree level and had no difficulty in understanding concepts, it was a question of ensuring that communication was properly dealt with.

There had been no sign language interpreter when the social worker asked the parents to give section 20 consent for the child to be accommodated, and the social worker had asked the mother (who had some learning difficulties herself) to sign for father and explain the legal concepts to him, and thereafter communicate his views.

One does not have to be a rocket scientist to guess that McFarlane LJ didn’t really think that was good enough

there was no provision for interpretation when the father made the important step of agreeing to his baby daughter being accommodated under section 20 of the Children Act.  To rely upon the mother who, even if she did not have the unfortunate cognitive disability she has, to interpret complicated matters such as section 20 of the Children Act and the authority being given to the local authority to the father was to put an undue burden on her.  Once one understands that she does have these disabilities, it seems to have been wholly inadequate for her to act as an interpreter for him at that crucial meeting

The Court of Appeal also helpfully outline the difference between interpreting from a foreign language and interpreting sign language (which they highlight might be fresh information to many professionals)

18. It is crucial for professionals and those involved in the court system, in particular judges, to understand one profound difference between the ordinary need in cases where parties to the proceedings may speak a different language for there to be “translation”, and the need for a different character of professional intervention in these cases.  This need is not solely or even largely one of “translation” as would be the case in the straightforward translation of one verbal language to another; the exercise is one of “interpretation” rather than translation.  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 inability 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.
19. Descending to some detail, it is no doubt the general understanding of those in the general population that sign language is simply sign language.  But it has been made clear to us in the papers before this court that there are differences between British Sign Language, which is, as I understand it, an ordinary form of communication, and English Supported Sign Language, which is a different and far more structured, in grammatical terms, process.  Different people from the population who have a hearing disability will use one or both or neither; they may have their own individual way of communication.

And there was another difference, the use of what is called Deaf Relay interpretation – in effect that there are almost two interpreters – one interpreting for the interpreter…   (the best way to understand it is the parallel that the Court of Appeal draw with an advocate for someone with learning disabilities)   – underlining here mine for emphasis

20. A second matter which has become plain to me, which was not something that I had understood previously, is the opportunity to use what is called Deaf Relay Interpretation.  That is not to describe the ordinary course of events where the onerous task of interpreting these matters in court proceedings is taken on by a team of two or three professionals who take it in turns to pass the baton, as it were, of interpretation in 20 minute periods one from the other.  Deaf Relay Interpretation is an entirely different process.  A relay interpreter is a deaf person who acts as an “intermediary” between the qualified sign language interpreter and the deaf person.  The purpose is for the Deaf Relay Interpreter to provide a specialist service and approach the communication with the deaf person from a deaf perspective, breaking down issues and providing, what one report we have read refers to as, “cultural brokerage”. 
21. The family courts are now more familiar in recent times with the concept of “an intermediary” being involved in cases where an individual may have learning disabilities.  What is described here by Deaf Relay Interpretation seems to me very much the same form of intervention.  In her report, Dr O’Rourke stresses the value of this process and I propose to quote briefly from three passages in her report.  She says this:

“In my view, any work undertaken with [the father] is unlikely to succeed unless Deaf professionals are involved.  To clarify this; the provision of interpreters alone is not sufficient.”

Then later:

“The use of a Deaf Relay Interpreter for formal court proceedings is recommended.  This is an individual who works with the interpreter but can adapt the communication more flexibly to meet the needs of the Deaf person.”

22. Later, in her second shorter report, Dr O’Rourke adds this:

“Interpretation is not merely a matter of word for sign equivalence; cultural brokerage is required which is far more effective if the hearing professional has some knowledge and experience of the Deaf community.”

23. Having explained those particular matters, which, it seems to me if there is a case involving an individual who has these unfortunate disabilities must be considered in every case

You will probably already be picking up on the fact that to do this

1. For Court hearings
2. For solicitors meetings with the client to take instructions
3. For meetings with social workers

Is going to cost considerably more than the usual “sign-language as interpreter” model

The Court of Appeal deal with that, as best they can (but good luck to anyone trying to convince the Legal Aid Agency that they need to stump up for two people to do the interpreting rather than just one)

27. The issue of funding needs to be grappled with at the earliest stage before the case management hearing and during the case management hearing.  The difficulties in funding the sort of intervention that I have described to assist a deaf person, which are even more complicated than those facing someone who has a language imbalance with the language of the court or who has learning disabilities.  The provision of assistance for a deaf person will come from three publicly funded sources: first of all the Legal Aid Agency will be responsible for funding interpretation to assist the taking of instructions and other legally based occasions that require interpretation.  But, they do not cover the provision of interpreters in the court; that is the role of the Court Service, HMCTS.  Thirdly, the local authority are likely to be responsible for providing the appropriate interpreter during meetings between social workers and a parent and in the course of any assessment work that is undertaken.  All three of those bodies need to be appraised of the particular needs of the particular party at the earliest opportunity, partly as a matter of good practice but also partly because the cost of the sort of intervention that I have described is likely to be higher than simply providing someone to translate the language of one party to another, and so approval for funding at the higher level is likely to be required, certainly by the Legal Aid Agency and the Court Service.  The sooner the application is made and more generally, the more readily those agencies understand that these cases are different from simply providing a translator and they may need a higher level of funding to be approved, the better.  Going back to Baker J’s guidance, he stresses that the importance of addressing the funding issues at the earliest opportunity cannot be underestimated.

The Court of Appeal stress that it is incumbent on both the LA AND the parents representatives to bring the issue of hearing impairment to the Court’s attention at the very outset.