‘Substituted parenting’ – a term with no apparent consensus, clarity, consistency of meaning, or transparency as to its application by the family courts.

Project team: Nadine Tilbury (Policy officer for the Working Together with Parents Network (WTPN)) and Beth Tarleton (WTPN Co-ordinator and project PI)

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“Substituted parenting” What does this mean in the family court?

We aim to be in a position to answer this question by the end of our 18-month project (April 2023) and are extremely grateful to the Nuffield Foundation for providing the funding and support that will enable us to do so.

Published family court judgments show that the expression ‘substituted parenting’ is often used during care proceedings in cases involving parents with learning disabilities and tends to result in the children being permanently removed from their families.

The term appears to be being used by local authorities when the support they have identified as necessary for the parents is extensive. They say the high level of support required equates to substituted parenting which is detrimental as it confuses children as to who is the parent. Since most parents with learning disabilities are likely to need long-term support, this approach risks becoming a discriminatory blanket policy.

Where has this term come from? What is the research evidence base for the concept and its conclusion that ‘substituted parenting’ or parenting by others is necessarily detrimental to a child’s welfare? What level of support is regarded as substituted parenting? Is it / should it be a matter of how much support is provided or, instead, should the question be how that support is provided?

Experienced family court lawyers are unclear how the use of this term has developed, ”… appears to be becoming an ‘orthodoxy’” or the ‘default position’ (Senior barristers – email).

“… the family would need … support throughout the children’s waking hours. That would be substituted parenting, not support.”  A Local Authority v G (Parent with Learning Disability) (Rev 1) [2017].

“Whether the situation I have described could or indeed should be described as “substituted parenting” is a matter for others to decide… In the absence of a clear description of the dynamic that defines what substituted parenting is …” HHJ Greensmith in PQR (Supported Parenting For Learning Disabled Parents) (Rev 1) [2018].

It is this absence of a clear definition – and the dire consequences that follow a finding of substituted parenting i.e. removal of the child – that prompted our bid for funding to clarify what social workers, lawyers and judges mean by the term ‘substituted parenting’ and how it is applied in care proceedings involving parents with learning disabilities.

Our project aims to establish clarity, consistency and transparency in the understanding and application of the term by the family courts and to highlight good practice, where it exists.

Background to the project

All parents are entitled to support from the state to carry out their parenting responsibilities. So say the UN Convention on the Rights of a Child and the United Nations Convention on the Rights of Persons with Disabilities. The Care Act 2014 specifically includes parenting responsibilities as one of the eligibility factors for support and the central ethos of the Children Act 1989 is that children are best raised by their families, where possible, with local authority functions designed to provide support to the children and families.

The first edition of the Good Practice Guidance on working with parents with a learning disability (2007), published by the Department of Health and the Department for Skills and Education, emphasised the right to support, drawing heavily on the work by Beth Tarleton and colleagues in 2006, Finding the Right Support.

The 2016 and 2021 updates of the Good Practice Guidance by the Working Together with Parents Network did likewise.

And yet, despite this clear, rights-based foundation, cases were continually being reported where parents with learning disabilities were having their children permanently removed as they were unable to parent them safely without the right (or, in many cases, any) support.

In 2016, we started sending emails to the office of the President of the Family Division, highlighting published family court judgments showing local authorities’ routine failure to apply the principles of the Good Practice Guidance, when working with these families.

In April 2018, the then President, Sir James Munby issued guidance:

‘My primary purpose in issuing this Guidance is to bring to the attention of practitioners and judges, and to commend for careful consideration and application by everyone, the very important “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.’ Family Proceedings: Parents with a Learning Disability | Courts and Tribunals Judiciary

Almost overnight, the right to support began to be acknowledged by local authorities and their proposals scrutinised by the family courts.

‘ …Following the court’s request for additional evidence from the local authority including evidence of how the guidelines in respect of parents with a learning disability had been followed and direct evidence from the independent reviewing officer (in the form of a statement confirming her position in the light of the new evidence), the local authority reviewed its position’.

‘…The court is confident that this package of support …meets the obligations of the local authority to follow the Good practice guidance on working with parents with a learning disability (2007) revised September 2016 (The Guidelines) (Recognising the Role of the Independent Reviewing Officer (IRO)) [2018] EWFC B71 (08 November 2018)

Unintended consequence

It was all going so well… And then, we started receiving reports of cases in which local authorities confirmed that the necessary support had been identified and could be provided, but went on to assert that, such support would amount to substituted parenting, which was detrimental to the child’s welfare and so the child needed to be permanently removed.

We began to look into this concept of ‘substituted parenting’. We tried to find out where it came from, what level of support was considered to tip the balance from acceptable to unacceptable, whether costs and timescales were factors. We checked the literature, and we asked the academics and practitioners. We couldn’t find the information. ‘Good question’, they said.

We scrutinised published judgments, looking for mention of any analysis of the risk that the proposed support would amount to substituted parenting, and any options considered to address/reduce/eliminate that risk. We couldn’t find that either.

Timing

This project started 1^st November 2021 and runs until April 2023. The timing couldn’t be better for us as the President of the Family Division, Sir Andrew McFarlane, has just released his report on the need for greater transparency in the Family Court: Confidence and Confidentiality: Transparency in the Family Courts and has confirmed that transparency will be a key priority for him over the next three years:

‘… it is legitimate for the public to know of these judgments [family court cases], to provide a basis for trust in the soundness of the court’s approach and its decisions, or to establish a ground for concern in that regard.’

’It is the case that the Family Court is currently not sufficiently transparent even to those, in particular the judges and the social work professionals, who are working within it. Educational opportunities are thereby being missed.’

Since the family courts are not open to the public, we depend on published judgments for finding out how care proceedings involving parents with learning disabilities are in fact being dealt with. Any move towards greater transparency, in terms of the number of judgments published and the level of information contained within them, can only lead to better and more consistent practices and thereby improved confidence in the fairness of the family justice system.

Next steps

We very much look forward to speaking with the social workers, lawyers and judges involved in working with parents with learning disabilities in the care proceedings context. We look forward to being able to highlight good practices found in the course of the study and to establishing consensus, clarity, and consistency as to the meaning of the term ‘substituted parenting’, and transparency as to its application by the family courts.

We particularly look forward to working with our Advisory Group of parents with learning disabilities. They will help to ensure that the findings of our study can be made widely available to parents with learning disabilities and in such a way that parents will be able to understand what is meant by the risk of support being considered to be ‘substituted parenting’, the significance of such a risk and, most importantly, how to avert that risk, where possible.

Because, in the much-quoted words of Baroness Hale in a landmark adoption case, “nothing else will do”.

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This project has been funded by the Nuffield Foundation, but the views expressed are those of the authors and not necessarily the Foundation. Visit www.nuffieldfoundation.org.

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