Individuals with an Intellectual Disability (ID) who wish to become, or have become, parents can face considerable difficulties in their interaction with the legal system in Ireland. Becoming a parent is something that can present quite a struggle for individuals with an ID (McConnell and Llewellyn 2002). Historically cases have been brought before the courts by the parents of individuals with an ID, in order to prevent them from having a child through enforced sterilisation (McConnell and Llewellyn 2002). In other cases, females with an intellectual disability have been simply institutionalised for the duration of their childbearing years to prevent them from conceiving (McConnell and Llewellyn 2002). Such scenarios have diminished, as such methods are now more stringently controlled. This perhaps accounts for the increasing numbers of individuals with ID now becoming parents (Dowdney and Skuse 1993). However, new battles are being fought by this minority group because they now live with the constant and very real fear that the courts will not allow them to remain a carer for their child (McConnell and Llewellyn 2002).
In legal proceedings involving parents with an ID and the retention of child custody, the courts’ understanding of ID is paramount. Unfortunately within the current context understanding of legal procedures and access to easily comprehensible information is not always forthcoming to individuals with or without an ID (Inclusion Europe 2007). Thus, for an individual who has an ID, the process of going to court and interacting in an environment where the process is complex and not fully explained can be a daunting experience (McConnell and Llewellyn 1998). Additional problems include the difficulty a parent may have in appropriately instructing their solicitor, dealing with cross examination in court or understanding the outcome of the proceedings (McConnell and Llewellyn 1998). There may also be a lack of understanding among professionals regarding individuals with an ID; this can result in legal professionals being ill-equipped to deal appropriately with their client (McConnell and Llewellyn 1998). Inclusion Europe (2007) has recommended that a general education programme for legal professionals and public administration bodies should be developed.
Families with a parent or parents with an ID risk isolation within their local community and this lack of social inclusion can negatively impact on parenting competencies (McConnell and Llewellyn 2000). More research is needed to uncover the extent to which this is the case; to date there is scant information affording insight into the Irish perspective. It is, of course, important to examine the research that has been conducted on the international stage, but the problems of an Irish sample may not necessarily be the same as in other countries. Nevertheless international research has indicated that where one or both parents have an ID they are under constant scrutiny and live with the fear that their child or children will be removed from the home (McConnell and Llewellyn 1998). Unfortunately, it is evident across the literature that many parents are justified in having this fear, and many do not get to raise their children (McConnell and Llewellyn 2002).
The precise number of families in Ireland who have a parent with an ID is not known. Quite remarkably, this statistic is not readily available for any other country either (Booth 2002). However, Emerson, Malam, Davies and Spencer (2005) conducted a national survey in the United Kingdom involving adults who have an ID and found that one in fifteen adults who completed the survey were parents. Studies indicate that there are high rates of child removal from people in this group, averaging between 40% and 60%. This finding is consistent across available research studies (Mirfin-Veitch, Bray, Williams, Clarkson and Belton 1999; Pixa-Kettner 1998). Accardo and Whitman (1990) found that amongst 79 families involving 226 children, 45.5% had been removed from the family home. Mirfin-Veitch and colleagues examined 46 parents who had 96 children amongst them.
The results of this study found (consistent with Accardo and Whitman’s findings) that 41% of children had been removed from the home by the courts. Additionally, McConnell, Llewellyn and Ferronato (2002) found that of a total of 407 cases involving 622 children brought before the Australian family court in a 9-month period, 7.1% involved parents with an ID. Overall, McConnell and Llewellyn (2002) advised caution when examining these figures, the reason being that those parents who were included in such studies tended to experience greater difficulties.
Research studies have indicated that the majority of cases brought before the court involving parents with an ID involve child neglect or abuse (Booth and Booth 2004). Glaun and Brown (1999) found that allegations of neglect accounted for 67% of those cases brought before the court and dual allegations of abuse and neglect accounted for 33%. Additionally, Glaun and Brown found that of all the cases involving abuse, only one involved a mother with ID and the rest of the cases did not involve a parent with an ID. Consistent with this finding, McConnell and Llewelyn (2002) found that for those cases where abuse is the mitigating factor it is rare that the offender will be the parent with ID. Additionally, the charge of neglect may have been avoided, or at the very least corrected, with sufficient access to parenting courses. Studies have shown that individuals with an ID are amongst the most compliant in adhering to court rulings (McConnell and Llewellyn 1998). Unfortunately this is often not enough and they will still lose custody. Nonetheless, the literature does indicate that in some instances the reason for neglect stems from parental incapacity, lack of cooperation with authorities and or failure to change (Booth and Booth 2004).
Studies have shown that there have been instances where there is insufficient evidence of child neglect or abuse and still the child has been removed from a parent with ID (McConnell and Llewellyn 1998). Additionally, Levesque (1996) has asserted that evidence against a parent with ID that has resulted in child removal has, in some cases, been inadequate for the court to determine removal to be in the best interest of the child if the parent involved had no disability. These findings indicate that parents with an ID may not receive fair adjudication and, as a result, may be unjustly treated. Furthermore, where psychologists are often asked by the courts to determine a parent’s capacity to parent and their ability to learn the skills required to be a successful parent (Glaun and Brown 1999), a significant problem faced by this group tends to be the belief that because they have a lowered intelligence quotient (IQ) they will be unable to learn the necessary skills to successfully parent (McConnell and Llewellyn 1998). Booth and Booth (1993) found that IQ is not a good outcome predictor of competence when discussing this group, as an IQ score is not always a sufficient measure of parenting ability. Rather IQ score in conjunction with external environmental factors (for example, social support, socio-economic status and health) has been shown to impact on parenting ability (Aunos, Goupil and Feldman 2003).
Aunos, Goupil and Feldman (2003) conducted a study comparing parents with an ID who still had custody of their child or children, with those who no longer had custody. Forty-seven mothers who were receiving services from agencies specialised in working with ID participated in this study. Thirty of these mothers still maintained custody of their children, the remainder of the sample had lost custody, but maintained contact with their children. The results of this study found that those mothers who still had custody of their children had more social support, received more services and had a higher income than those mothers who no longer had custody. This clearly indicated that environmental factors had a significant impact on which mothers had maintained custody of their children.
Overall, it appears that the relationship between the courts and parents with an ID is in need of some urgent attention. Research indicates that a lack of understanding on the part of legal professionals and other service providers regarding ID, and what individuals with ID are capable of, adversely impacts on this group of parents’ right to parent their children. Studies have confirmed that intellect should not be the sole basis on which to base successful parenting and to do so without an evidence base is an infringement on the rights of parents (McConnell and Llewellyn 1998).