Re C (A Child)

This appeal concerned care and adoption orders made after a final hearing in which the judge concluded that it was not in the child A's best interests to be brought up by either parent. The Court of Appeal allowed the parents' appeals by consent and remitted the case for a full rehearing because material procedural and evidential failings had occurred at first instance.

The key legal principles identified were:

• Where a parent has a hearing disability, ordinary interpreter provision may be inadequate: the court and parties must consider early expert advice about communication needs, including use of Deaf Relay Interpretation and deaf professionals, so that assessments and proceedings are fair and effective.
• Applications to instruct experts should be considered under Part 25 of the Family Procedure Rules 2010 when required to advise the court how to engage with a disabled party.
• Public bodies involved in care proceedings must address funding responsibilities early (Legal Aid Agency, HMCTS and the local authority) and have regard to obligations under the Equality Act 2010.

Because the father (profoundly deaf) and mother (low cognitive functioning and speech/hearing impediment) had not been adequately assisted in assessments and important procedural steps (notably the section 20 accommodation meeting), the Court concluded the earlier orders were unsafe: the placement for adoption and full care order were set aside and replaced by an interim care order pending a rehearing.

Background and parties:

The child A was born 16 August 2012. The father is profoundly deaf and communicates in British Sign Language; the mother is 22, of Turkish Cypriot origin, has low cognitive functioning and a speech/hearing impediment but can use English without an interpreter. A was accommodated under section 20 of the Children Act 1989 shortly after birth, purportedly with parental consent obtained at a meeting where no professional interpreter was present and the mother acted as intermediary.

Procedural posture:

• The local authority later applied for a care order after the parents withdrew consent; an interim care order was made on 7 September.
• A final hearing before His Honour Judge Turner QC resulted in a full care order, dispensation of parental consent to adoption and a placement for adoption order (judgment delivered 3 June).
• Both parents sought permission to appeal; Ryder LJ subsequently revisited and gave permission and ordered a report by Dr Cornes. The Court of Appeal granted permission and, by agreement of the parties (including the local authority), allowed the appeals and remitted the case for rehearing.

Issues framed by the court:

1. Whether the proceedings and assessments at first instance were conducted in a way that fairly enabled the parents, particularly the deaf father, to participate and be properly assessed.
2. Whether expert involvement and appropriate interpretation (including Deaf Relay Interpretation and deaf professionals) should have been instructed and relied upon under Part 25 of the Family Procedure Rules 2010.
3. Whether funding arrangements and case management allowed appropriate provision for those specialised communication needs and compliance with the Equality Act 2010.

Court's reasoning and outcome:

The Court identified material shortcomings: absence of professional interpretation at the section 20 meeting, inadequate interpreter provision in early meetings, insufficiencies in the parenting assessment process (conducted without adequate accommodation for the father's disability), delay and difficulty in securing appropriate funding for enhanced interpreting services, and insufficient early use or weight given to specialist deaf expert evidence (including reports by Dr O'Rourke). The Court accepted that those failings undermined the fairness and reliability of the first-instance findings about parental capacity. Given that consensus existed among the parties, the Court set aside the placement for adoption and the full care order, replaced them with an interim care order, and remitted the case for a full rehearing before a different judge. The Court also gave guidance for future cases involving deaf parents: early identification of hearing disability, early expert advice and Part 25 applications where necessary, consideration of Deaf Relay Interpreters, early resolution of funding responsibilities, allowance for extended timetables where required, and attention to obligations under the Equality Act 2010.

Appeal allowed by consent. The Court accepted that procedural and assessment failings concerning the parents' disabilities (notably inadequate interpretation and insufficient expert assessment) made the first-instance orders unsafe. The placement for adoption order and the full care order were set aside and replaced with an interim care order; the matter was remitted for a full rehearing before a different judge.

Appeal from the High Court, Family Division (Principal Registry of the Family Division), judgment at first instance by His Honour Judge Turner QC delivered 3 June (care and placement for adoption orders). Initial paper application for permission to appeal was refused; Ryder LJ subsequently revisited the decision in October and granted permission and authorised a report by Dr Cornes. The Court of Appeal ([2014] EWCA Civ 128) heard the appeals and allowed them by consent.