Parents with learning disabilities: the concept of ‘substituted parenting’ and its use in the family court context

This timely and most welcome judgment of the Court of Appeal in Re H (Parents with Learning Difficulties: Risk of Harm) [2023] EWCA Civ 59, [2023] was published as we were writing up findings from our 18-month research study Substituted Parenting: what does this mean for parents with learning disabilities in the context of the family court? The judgment reflected our findings and addressed our concerns – in particular, in respect of the need for predictions to be based on fact, the need for a full and proper analysis of perceived risk, the relevance of resources and the importance of the Good Practice Guidance on working with parents with a learning disability.
In or around 2016, we began to notice that the term ‘substituted parenting’ was increasingly being used in published family court judgments involving parents with learning disabilities/difficulties as the reason for removing the children e.g. A Local Authority v G (Parent with Learning Disability) [2017] EWFC B94. The term appeared to be being used by local authorities when the support they had identified as necessary was extensive and it was felt that this high level of support would be detrimental to the child/ren. There didn’t appear to be any clear, consistent or shared understanding of the origins, evidence base for, or meaning of the concept, other than that it involved an undesirable, high level of participation by a high number of professionals who would be ‘doing the parenting’.

As we investigated further, we discovered that assumptions were being made about the term; we were told the concept had become an ‘orthodoxy’ or the ‘default position’: “I am not aware of any specific research that is cited to support this; it seems now to be an article of faith.” (Barrister).

This led us to apply for funding from the Nuffield Foundation to investigate the use of the term ‘substituted parenting’ in the family court. The project’s original aim was to develop a common understanding of, and clarity about, the meaning and use of the term 'substituted parenting' by legal and social work professionals. It also sought to ensure parents with learning disabilities understood the term, the associated risks and how to mitigate them. [We use the term ‘parents with learning disabilities’ to include parents with a diagnosed learning disability and the wider group of parents who have a milder or borderline learning disability, often known as a ‘learning difficulty’ who also struggle with their day-to-day life and role as a parent but have less access to services.]

As will be shown in this article however, the origin, meaning and application of the term remained unclear throughout the project and we concluded that we could neither suggest nor recommend a common understanding of the term. We made a series of recommendations, including that this term should be avoided, but also that any perceived risks related to a proposed high level of support should be given serious, evidence-based consideration, founded on robust risk analysis and exploration of options to address the risks identified. We developed a sample risk assessment template that could be used in these cases.

We also made a film that would be useful to share with parents so that they have an understanding of the concept and its importance. All of the outputs from the research, including a detailed full report and executive summary can be found at: Substituted Parenting | School for Policy Studies | University of Bristol

This article primarily focuses on the issues that need to be considered to ensure the rights of parents with learning disabilities and their families are respected – in particular articles 6 and 8 of the European Convention on Human Rights as incorporated in the Human Rights Act 1998, relating to the fairness of the process from the outset of State intervention - but first, we discuss some of the key findings from the focus groups with parents with learning disabilities, which we hope will also inform professional practice.