A warning against treating parents of disabled children as ‘obstructive’ or ‘difficult’
By Mathieu Culverhouse and Breagha Hayes, public law and human rights experts at Irwin Mitchell
In the judgement of W (A Child), Re [2021] EWHC 2844 (Fam), Mr Justice Hayden considers parental resistance to carer support for their disabled child and highlights the challenges faced by parents in these circumstances.
Background
W is a 12-year-old boy and the subject of an application for a Care Order made under section 31 of the Children Act 1989. W has several diagnoses - including epilepsy and a swallowing disorder - requires a wheelchair at all times, and occasionally holds his breath to the point of losing consciousness and causing hypoxic episodes. Accordingly, W requires one-to-one care during the day and two-to-one care for handling.
Although a private care group was responsible for delivering professional care to W, it experienced alleged “combative interference” by W’s parents. This cumulated in an incident on 3 March, 2021, where W experienced a hypoxic episode with his saturation levels dropping to below 85 per cent.
It is reported that despite the risk to W, his parents prevented the care staff from arranging for an ambulance in a timely manner as W’s mother, (“M”), considered the saturation readings to be normal for W. When the ambulance service attended, it found W to be well. On 4 March, 2021, the care support agency indicated that it would no longer be prepared to offer a service to W, due to the resistance they encountered from W’s parents.
Challenges Faced by Parents with Profoundly Sick or Disabled Children
Dr Kate Hellin, a consultant chartered psychologist and psychotherapist, was commissioned to undertake a psychological assessment of W’s parents and analyse their interactions with care support. Dr Hellin assessed that M’s mental health became acute in December 2019 when W experienced a bowel intussusception and a brain haemorrhage. At this time, M would have met the criteria for post-traumatic stress disorder (PTSD) diagnosis.
While M no longer suffers from PTSD, the impact of W’s profound sickness has left M with chronic and acute stress. Dr Hellin assesses that the anxiety experienced by W’s parents is rational in the context of raising a permanently and profoundly ill child.
Moreover, Dr Hellin further comments that the reaction of W’s parents to the incident on 3 March, 2021, is a normal coping mechanism in the face of challenging and uncertain circumstances and she would expect “a similar response in even the most psychologically robust person”.
Accordingly, Dr Hellin’s report sheds light on the immense difficulties placed on ordinary parents with ill or severely disabled children.
Therefore, rather than evaluating the parents’ failures or any mental health difficulties, Dr Hellin advised a systemic intervention drawn from organisational psychology, psychodynamic psychotherapy, group analysis and systems theory. According to Dr Hellin, this intervention would promote mutual respect between W’s parents and the care staff and diminish mutual blame.
In his judgment, Hayden J noted that the impact of this intervention “has already diluted the emotional intensity and significantly bridged the polarity that has impeded progress in this case for many months and which has undoubtedly been inimical to W’s care.”
The Law
Hayden J concluded that “Dr Hellin's analysis resonates clearly with the applicable legal framework in the Children Act 1989. The judgment draws attention to section 31(2)(b)(i) of the 1989 Act which stipulates that a court may only make a care order or supervision order where a child is suffering significant harm attributable to the care given to the child not being what it would be reasonable to expect a parent to give to him.
Hayden J concluded that this section must be evaluated by reference to the circumstances that the parent is confronting; in essence, what would it be reasonable to expect a parent with a profoundly sick child to do. As such, the law ought not to apply a rose-tinted standard of parenting in such cases and must consider the responses of parents against the context to their particular circumstances.
Summary and Implications
Hayden J notes that “a similar dynamic and frequently for the same reasons identified here, arises in the Court of Protection when dealing with incapacitated adults.”
Consequently, the implications of this judgment, and by extension Dr Hellin’s report, are not restricted to the Family Court and will also be felt in the Court of Protection.
The lessons to be learned from this case include considering the context of the parents’ circumstances rather than assessing the standard of parenting in a vacuum. In order to do so, the commissioning of a cohesive psychological assessment as to the relationship of the parties might be considered necessary to encourage cooperation and save court time.
Indeed, the success of this approach is apparent within the judgment, as Hayden J endorses Dr Hellin’s report as “a landmark” and attributes the parties’ renewed and regenerated resolve to settle the case and work collaboratively to Dr Hellin’s assessment.
More than this, the content of W (A Child) raises questions as to the wellbeing of parents in such circumstances, who have experienced trauma, uncertainty and chronic stress. In what capacity are such parents being supported to make decisions in respect of their children’s care? In cases involving incapacitated adults - similarly to cases involving permanently ill children - resistance by family members is commonly labelled as the family being ‘difficult’, ‘obstructive’ or ‘irrational’. The judgement of W (A Child) demonstrates that social services and the justice system must instead recognise parental trauma against the framework of ordinary family members coping with exceptional circumstances.
Find out more about Irwin Mitchell's expertise in supporting families affected by care issues at our dedicated health and social care section.
