Lesson from the courtroom: attitudes to parents with intellectual disabilities in childcare proceedings

  • Disability is a concern when deciding whether a person can be a good parent
  • A parent’s disability should not be the only thing that stops them being a parent
  • Being exploited may stop them being a parent too
  • Social workers need to be consistent when deciding whether a parent can be a parent
  • Courts need to help people get the support they need to be a parent.

In late 2015, the Child Law Project published its final report. This was a three- year project, where the team of lawyers and academics, led by journalist Carol Coulter, sat in on over 1,200 child care cases.

Whenever an order was being sought – in other words, where the State was moving to take a child into care, or to heavily supervise their care in the family home – the report found that 15.4% of the time, the reason for seeking the order was parental disability (intellectual, mental, physical). Shockingly, this was the most frequently cited reason for seeking an order. Neglect, at 15.3%, was the second most frequently cited reason.

The prevalence of disability as a reason for seeking an order is of huge concern. It raises questions about whether parents in this group are receiving adequate supports, whether social workers are educated about the kinds of specialist supports that are required, and whether these parents face a bias on the part of some social workers in relation to their parenting ability.

On a legal basis, it also raises the question of whether the rights of the parents are being breached. Disability as a single ground for initiating child care proceedings would be a clear breach of the Equal Status Act 2000. Plus, if a parent with ID is more likely to come before the courts in these kinds of cases, then it has to be asked whether those individuals are being discriminated against.

The reports found that at 10%, the single biggest factor leading to a case coming to court was the mental health of one or both parents. In almost 7.5% of the cases, the parent – usually the mother – had a cognitive disability. The authors felt that this was likely to be an under-representation as in some cases where alcohol or drug abuse, or severe neglect dominated the proceedings, undiagnosed cognitive disability was likely to have been a factor.

The authors also found that there was a haphazard approach to the diagnosis of these cognitive disabilities. They frequently saw cases where the issue arose in the middle of the hearing.

Parenting capacity assessments would sometimes be carried out before a cognitive assessment: the authors noted that when this happens, and if the person’s cognitive capacity is not taken into account, then they are bound to fail a conventional parenting capacity assessment. On another occasion, a report on the cognitive ability of a parent was referred to, yet it had been carried out years previously and prior to the person becoming a parent.

The matters that the authors saw before the court also raised issues in relation to the sexual exploitation of women with reduced cognitive ability:

“There are also cases where a person’s cognitive ability is so impaired that it is unlikely she can ever parent a child, no matter what level of support is offered. We have attended a number of cases where the court has heard the mother in the case had the mental capacity of an eight or nine year old, and evidence was also given of her likely victimisation through sexual exploitation. This raises wider issues relating to the protection of vulnerable adults as well as children.”

The report also found that 74% of the parents were parenting alone. As the authors pointed out, “Parenting alone is difficult for anyone, even those of full ability and with strong social networks. As we have seen, many of these parents suffered from disabilities or addictions, and our reports show that they also often suffered from social isolation, so were particularly vulnerable.”

A stark picture emerges of cognitive vulnerability, both in the parents and the children in these cases, and in particular single mothers (30% of the respondents). As the report notes, “the prevalence of disability and ethnic minorities among the respondents raises questions about the provision of services to these groups”. Later it notes, “again and again, questions were raised about the availability of such services”.

Case study

In a District Court hearing, a full Care Order for two sisters was granted. The sisters – both teenagers – had not been attending school. Their mother had limited cognitive ability and mental health problems. She was parenting alone.

The mother’s barrister raised the issue of her cognitive impairment and whether this was taken into account by the social workers. An education and welfare officer had called to the house of the mother to inform her about her legal responsibilities in relation to sending her children to school. In court, he was asked if he was aware that the mother had a borderline intellectual disability: he said he was not aware.

It turned out that the officer was aware that the mother was attending mental health services, but he did not take the initiative to get a cognitive assessment of the mother because “I was aware she was attending other services. That is their area of expertise”. When asked if he ever checked out the mother’s capacity to understand what was required, he said no.

A blatant lack of communication across the services, joined-up thinking, or case management comes across clearly in this.

When a cognitive assessment was carried out, on the instructions of the Child and Family Agency, the psychologist found that the mother was at the fourth percentile of cognitive ability, meaning 96 per cent of the population would have a higher ability. The psychologist commented:

“Her concrete style of thinking was very black and white. If the child said she was sick and could not go to school, it meant she could not go to school. She could not question how sick she was. I would have big concerns about her insight into safety issues with her children.”

The psychologist also found that if the mother was given a number of tasks, she would find it difficult to prioritise and to follow instructions. The mother’s barrister asked if the mother could manage if the tasks were presented in simplified language, one task at a time: the psychologist said yes.

On the other hand, in the same case, the supports that were provided didn’t have sufficient impact. The view of the psychologist was that the social workers did as much as they could in the circumstances. The following is a number of questions put by the mother’s barrister to the psychologist:

Barrister: “People on the fourth percentile can have and raise children?”

Psychologist: “Absolutely. It depends on what supports they have and also what is going on in the rest of their environment.”

Barrister: “If supports were put in place for the mother that may be of assistance for her?”

Psychologist: “It may be. But I understand that she did receive a number of supports.”

The court report went on to summarise the psychologist’s position:

The psychologist’s report said 24-hour parenting support would be necessary, that is, someone on call all the time. It would be difficult for the children to have all their needs met. There had been numerous social workers calling but change, while it occurred, was not sustained. Abstract thinking was very, very difficult for the mother.

Referring to the mother changing, she said: “My concern is, how long do her daughters have to wait? The question is whether the change is long-term, consistent, and how much change. I saw the social workers give instructions, model the instructions, repeat them. It suggests that when someone is there with her on a one-to-one basis she can make some changes. I don’t know how sustainable they are. Her capacity to change does not match the children’s changing development needs as teenagers.”

The teenage siblings went from living fulltime with their mother, to being together in foster care. Access included lunches and shopping trips with their mother, plus phone contact. The social workers wanted to reduce access to one hour per week with a support worker present, and they also wanted to reduce phone contact. It is not explicit in the report why this was required, though there was an implication that the girls, particularly the elder daughter, were shouldering their mother’s problems.

Giving her decision, the judge said: “The mother is not capable of doing what she needs to do in a time-frame that meets the needs of the children. The sad thing is that for a period of time the children were more than adequately cared for by their mother. But due to her cognitive ability she was not able to meet their needs as they got older.

“She is one of the best-intentioned persons we’ve seen here. We all want to put the best side out, but at the time they came into care the children were suffering from neglect. I will grant full Care Orders until B completes her Leaving Cert. I want a review every year, including of where the children live.

“In relation to access, what is happening in [the child and family centre] is very cruel. Access is not for the mother, it is for the children. The mother did work with [the local social services] but by the time of the assessment she had slid back. That is why [the centre] made the recommendations it did at this time.”

She made a direction under Section 47 that the children receive therapeutic support relating to their being in care, access visits and their relationship with their mother, in line with recommendations from the GAL. In four months’ time the court would deal with access, after-care and therapeutic supports.

“I want the mental health services to provide all the supports needed by the mother. She’s been absolutely marvellous. She attends all appointments, obeys all instructions. I look forward to positive news about what happens in the future,” the judge said.

Kate ButlerKate Butler BL is a practising barrister and a board member of Inclusion Ireland, a representative group for people with intellectual disabilities. She is available to give talks on this topic.