‘Substituted parenting’ risk used to justify removing children without evidence base, finds study

By Mithran Samuel and Clare Jerrom

Councils are justifying removing children from parents with learning disabilities using a concept that lacks evidence, risking discrimination, research has found.

The term ‘substituted parenting’ has become a “negative shorthand”, based on unevidenced, “theoretical concerns” about services potentially providing excessive support to a family such that the child was, detrimentally, confused as to who their parents were.

Despite the lack of evidence behind the concept, it tended to be associated with children being removed, while parents said it made them feel “powerless”, said researchers from Bristol University’s Norah Fry Centre for Disability Studies.

The study report called for the term ‘substituted parenting’ to be avoided and that practitioners should instead focus on setting out which specific aspects of a support package they considered to be problematic, along with ways in which any risks could be mitigated.

Term used to justify removing children

The Nuffield Foundation-funded study was prompted by a string of court judgments in which councils invoked the risk of ‘substituted parenting’ as the reason for taking children into care.

These judgments contained no definition of the term, evidence of analysis of the perceived risks or exploration of options to address the risk, said the study report, published last month.

Researchers sought to establish whether such analysis had taken place without being referenced in court judgments.

However, professionals interviewed for the study – including five social workers and guardians – said that, in their experience “no such analysis or exploration of options occurred”.

Substituted parenting ‘a theoretical concern’

The risk of ‘substituted parenting’ tended to be raised as “a theoretical concern in relation to a theoretical support package”, rather than one evidenced as a fact in relation to a specific family, the report said.

Researchers found that it was not clear whether it was the length of time for which the support would be needed, the number of support workers required, the frequency or duration of their visits or the nature of the support that was problematic.

The professionals interviewed, who also included family court judges and lawyers, were also unclear about the tipping point between supported parenting – which was considered to be fine – and substituted parenting, which was not.

They also said the cost of 24-hour support – which some professionals saw as integral to ‘substituted parenting’ – was an important factor in councils’ decision making.

Parents left ‘powerless’

As well as interviewng professionals, the research team ran focus groups with 21 parents with learning disabilities, who said they were confused by the term but recognised it as negative, meaning others were “taking over” their parenting role.

While parents acknowledged that they needed support, they felt this should be individualised, positive and designed to empower them to be the best parents they could be.

However, they often felt powerless in their interactions with services, feeling that they could not stop support workers from taking over their parenting role for fear of having their children removed.

The research echoes the Court of Appeal’s decision earlier this year to set aside care and placement orders made in respect of the child of a mother with learning disabilities and a father who had non-diagnosed cognitive difficulties.

Judges ‘should scrutinise justifications for removal’

A family court judge had made the orders on the grounds that, for the child to remain with her family would require the council to provide support that constituted substituted parenting, which would be “unsustainable” and contrary to her best interests.

However, in H, Re (Parents With Learning Difficulties: Risk of Harm) [2023], the appeal court said the family court judge had not subjected the local authority’s evidence to sufficient scrutiny.

Giving the lead judgment, Lord Justice Barer said judges should be “wary of arguments based on the concept of ‘substituted parenting’” and should “carefully scrutinise the [council’s] evidence” that the suggested level of support would be “adverse to the child’s welfare” and look at “options for ameliorating the risk of harm that might result”.

Long-term support ‘a requirement’ for parents with learning disabilities’

Lord Justice Baker added that long-term support was “a recognised requirement for parents with learning difficulties”.

However, the Norah Fry research found that some children’s services practitioners felt support should be strictly temporary until parents could manage without it, and that long-term provision was “financially unsustainable, unrealistic and undesirable”.

This, the report added, was inconsistent with national good practice guidance on working with parents with learning disabilities, which says that most will need support at various points because of their children’s changing needs and their impairment not going away.

The guidance, published by government in 2007 and updated in 2016 and 2021 by the Working Together with Parents Network, based within the Norah Fry Centre, has been repeatedly endorsed by the president of the family courts, Sir Andrew McFarlane.

Recommendations

The study made 12 recommendations, including that:

• Professionals should avoid the term ‘substituted parenting’ and instead refer to a term such as ‘extensive support.
• In such cases, they should identify which specific elements of the support package are potentially problematic, assess the likelihood and impact of the risk in relation to each, identify options to address each of the identified risks and trial the options, where possible.
• Practitioners should accept the need for parents with learning disabilities to receive long-term support and, where concerns are raised about this, should specifically evidence these and specify options considered to address them.
• Council adults’ and children’s services should develop a joint strategy to avoid a ‘child versus parent’ conflict.
• Professionals working with parents should make every effort to ensure they support, rather than inadvertently supplant the parent, and that they reduce the risk of support parents receive being seen as ‘substituted parenting’
• Professionals working with families where a parent has LD should, at a minimum, be familiar with the most recent edition of the good practice guidance on working with parents with a learning disability.

Removal ‘must not be based on conjecture’

In response to the report, the Official Solicitor, Sarah Castle, who represents some parents who lack capacity to conduct litigation in care proceedings, said: “The permanent removal of a child from their family is one of the most serious decisions a court can take.

“The research reminds us all of the need for this decision to be taken on the basis of robust evidence and not merely assumptions or conjecture.

“I support the recommendations contained within the report and will be ensuring my family case managers are briefed on the outcome of this research and its recommendations for consideration in future cases.”