Family cases and parties with disabilities

Nora Owusu-Yianoma of Essex Legal Services outlines recent Court of Appeal guidance on family cases involving parties with disabilities.

In Re C (A Child) [2014] EWCA Civ 128 McFarlane LJ adopted the earlier approach of Baker J in Wiltshire Council v N and Ors [2013] EWHC 3502 (Fam), in particular from paragraph 74 to the end of Baker J's judgment.

The following guidance was given and it applies to all proceedings involving parties with disabilities although the particular circumstances involved a deaf party:

1. It is the duty of those who are acting for a parent with a hearing disability to identify that as a feature of the case at the earliest opportunity.

2. Both those acting for such a party and the local authority should make the issue known to the court at the time that the proceedings are issued.

3. Expert and insightful analysis and support from a suitably qualified professional is required at the very earliest stage.

4. By the case management hearing (day 12) of the proceedings, it should be a matter of course for the provision of expert advice on the impact of the deaf person's disability in the particular circumstances of the case to be fully addressed at the case management hearing. An application for expert involvement for the purpose, if nothing else to advise the court and the professionals how they should approach the individual, should be the subject of a properly constituted application for leave to instruct the expert under Part 25 of the Family Procedure Rules 2010.

5. The issue of funding needs to be grappled with at the earliest stage before and during the case management hearing. The provision of assistance for a deaf person will come from three publicly funded sources: first of all the Legal Aid Agency will be responsible for funding interpretation to assist the taking of instructions and other legally based occasions that require interpretation. But, they do not cover the provision of interpreters in the court; that is the role of the Court Service, HMCTS. Thirdly, the local authority are likely to be responsible for providing the appropriate interpreter during meetings between social workers and a parent and in the course of any assessment work that is undertaken. All three of those bodies need to be appraised of the particular needs of the particular party at the earliest opportunity, partly as a matter of good practice but also partly because the cost of the sort of intervention described is likely to be higher than simply providing someone to translate the language of one party to another, and so approval for funding at the higher level is likely to be required, certainly by the Legal Aid Agency and the Court Service. The sooner the application is made and more generally, the more readily those agencies understand that these cases are different from simply providing a translator and they may need a higher level of funding to be approved, the better.

6. Courts should not simply be driven by the 26-week deadline by which cases should be concluded. If there are aspects of a case that indicate the timescale for assessment cannot provide an effective and meaningful process because of the disabilities of one or more of the individuals involved, it is better to extend the timetable by a modest degree, rather than squeezing the assessment in and taking whatever assessment is available within that timescale.

7. It is crucial for professionals and those involved in the court system, in particular judges, to understand the profound difference between "translation" and "interpretation".

8. Sign language is not simply sign language – there are distinct differences between British Sign Language and English Supported Sign Language, and people who have a hearing disability will use one, both or neither.

9. Deaf Relay Interpreters provide a specialist service and approach communication with a deaf person from a deaf perspective, breaking down issues and providing "cultural brokerage" – the opportunity to use such a service should be considered.

10. Further training is necessary, which alerts the judges who undertake these cases to the particular need for an intermediary, a Deaf Relay Interpreter.

11. The court as an organ of the state, the local authority and CAFCASS must all now function within the terms of the Equality Act 2010. It is simply not an option to fail to afford the right level of regard to an individual who has these unfortunate disabilities.

Nora Owusu-Yianoma is Principal Solicitor in the People Department at Essex Legal Services. She can be contacted on 03330 139618 or This email address is being protected from spambots. You need JavaScript enabled to view it..