Adapting prevention and early intervention measures and parenting capacity assessments in neglect cases involving parents with intellectual disabilities in South African children’s courts

4.1 Adapted PEI measures

The drafters of the Children’s Act foresaw the need to include primary and secondary interventions for children, not only tertiary measures, with the court having a measure of oversight. These services would no longer fall outside of government, having previously only been offered by NGOs, and would be regulated under the legislation.52 Prevention programmes are aimed at strengthening and building the family’s ‘capacity and self-reliance to address problems that may or are bound to occur in the family environment which ... may lead to statutory intervention’.53 Early intervention programmes are anticipated to address children identified as ‘vulnerable’ or ‘at risk of harm’, in order to prevent removal into alternative care. This would ameliorate any need for court intervention, as these programmes are aimed at ‘preserving a child’s family structure’ and ‘avoiding removal of the child from the family environment’.54 These programmes are to develop the parent’s skills and capacity to ensure the well-being and best interests of their children, and to address and prevent neglect and other types of failures in the family environment, in order to better meet children’s needs.55 Parenting skills programmes are an example of a PEI measure. Existing parenting skills programmes in South Africa are generally not adapted for or targeted at parents with intellectual disabilities.56

PEI and therapeutic measures mandated by the Children’s Act,57 where they can be implemented to ameliorate or address concerns about the care of children and can enhance their best interests - can positively affect their best interests. Social workers should identify the PEI measures employed for children in their reports to court:

For this information to be of value to the court, the report should at the very least contain information about the nature of programmes provided and the impact of these programmes on the child, parent, care-giver and/or family. This requirement reinforces the need for the court to be able to act proactively, and to be enabled by the relevant information to do so. This provision also enables the court to ensure that social welfare services have made efforts to ensure that children and their parents, care-givers and families have been enabled to seek resolution for their problems before efforts to remove the child are instituted.58

The Children’s Act also explicitly mandates the participation of children, parents or caregivers and other family, to identify and seek ‘solutions’ to ‘their problems’.59 Frank argues that this involvement relates to ‘application of all forms of PEI programmes, including those ordered by the Children’s Court’.60 Their engagement should be solicited in the assessment of the nature of the problems experienced; the development of alternatives in response to these problems; and ‘decision-making regarding a course of action’.61 Matthias and Zaal anticipated that jurisprudence on the interpretation of these provisions would provide further clarity and guidance down the line.62 Unfortunately, appeals from the Children’s Courts to the High Courts are rare. Jurisprudence on PEI services and their scope for change has not developed.

The regulations to the Children’s Act include national norms and standards for PEI programmes.63 These inter alia, must ‘strengthen and support family structures and build capacity’; ‘be aimed at the improvement of the well-being of families and children’; ‘be family centred with family members seen as the main focus’; and ‘focus on the strengths and capabilities of family members’.64 The emphasis is clearly on family strengthening and capacitation. The regulations are a good start, but it is not clear to what extent social services self-monitor provision of these services, nor whether the courts are adequately supervising such interventions in the court inquiries which focus, generally, on the most at-risk families. Then there are institutional barriers to full implementation of community and family-based services such as: high case load of social workers; underfunded NGOs providing statutory and non-statutory services; insufficient social workers; and financial capacity constraints in the NGO sector.65

A serious flaw in the legislation was identified when the Children’s Act was still in the drafting stage: PEI programmes were to fall within the purview of social services only. These services cannot, due to lack of capacity, be provided by social workers alone and must involve a host of stakeholders and providers, including child and youth care workers, community workers, educators, and healthcare workers.66 This multi-sectoral approach - to be effectively implemented on the scale anticipated - would require adequate resources, including funding.67 The Children’s Act does promote an intersectoral approach through its strategy that involves an array of stakeholders. However, the strategy remains the primary responsibility of the Department of Social Development, with provincial application indicated with a provincial strategy. The funding needed for these programmes is addressed in the legislation, requiring these programmes to comply with the quality espoused in the norms and standards.68 The legislation prioritises funding for programmes that address poverty-related issues (shelter, food, basic necessities) and programmes for children with disabilities.69 Services to parents with disabilities are not prioritised. The Committee on the Rights of Persons with Disabilities recommends that South Africa develop and adopt an ‘effective implementation plan’ for PEI programmes - to assist with early identification of disability and to provide support for children and adults with disabilities.70 The Committee stressed that an adequate budget needs to be allocated for these programmes.

Makoae et al71 looked at the lack of prevention and support to parents at risk of maltreating their children based on reviews of 30 maltreatment cases - each from five Children’s Courts in 2006. They found that the social workers seldom reported in their investigation reports what kind of preventative actions were taken before the statutory intervention in court. A major flaw of some of the reports, according to the authors, was that

they were not comprehensive reports, they did not present the chronology of events and specified social worker interventions appeared to be ad hoc actions that did not reflect continuous relationships with families. Consequently, most of the interventions though not specified for every case under review seemed to be consistent with the nature of risks diagnosed partially. In many instances, social workers left much to be implemented by caregivers who had multiple vulnerabilities including alcohol and drug abuse.72

The authors surmised that the poor outcomes for prevention may result from high social worker case-loads, and early interventions involved placing children in places of safety, meaning that it marked the entry into statutory services for these children. Reunification was not the norm, and most children did not return to the care of their biological parents.73 While Makoae et al’s study indicates some of the risk factors for children of parents that are single mothers, have substance abuse problems, or have psycho-social disabilities - it did not consider children of parents with intellectual disabilities. It is, however, valuable in sketching the systemic failures in providing PEI interventions.

In the US context, Title II of the Americans with Disabilities Act (the ADA),74 and section 504 of the Rehabilitation Act of 1973,75 extend to child welfare agencies. Accordingly, full and equal access to their services in relation to inter alia investigations, witness interviews, assessments, removal of children procedures, reunification services, and court hearings (including proceedings to terminate parental rights), is mandated. For example, individualised assessment must be conducted, even where in emergency investigations assessments of a child’s situation are to be based on facts and objective evidence and not stereotypical notions of parental incapacity of the parent with the disability.76 Full and equal opportunity to participate is to be ensured, for example through adapting a method of teaching parenting skills (such as a class on feeding and bathing a child) to enable the mother with an intellectual disability to learn the techniques.77 One of the guidelines of the Technical Assistance Guidelines to the ADA issued to child welfare agencies and courts stipulates that:

To ensure that persons with disabilities have equal opportunity to retain or reunify with their children, it may be necessary for the agency to reasonably modify policies, practices, and procedures in child welfare proceedings. In general, agencies should consider whether their existing policies, practices, and procedures; their actual processing of cases; and their training materials comply with the nondiscrimination requirements.

Title II of the ADA provides that ‘no qualified individual with a disability shall be denied the benefits of services, programs, or activities of a public entity or be subjected to discrimination by any such entity’ - ‘by reason of the disability’.78 In Michigan, the services recommended to a mother with an intellectual disability to allow her to benefit from a reunification plan, were not received by her.79 The termination of her parental rights was therefore deemed premature without reasonable accommodated services offered to her. The court held that the child welfare agency has a duty to provide reasonable accommodations once it is aware that a person has a disability. 80

Section 63-21-20 of the South Carolina Persons with Disabilities Right to Parent Act requires provision of reasonable accommodations in services rendered to parents with disabilities, including

the reasonable efforts made by the department to avoid removal of the child from the parent or legal guardian, including reasonable efforts made to address the parenting limitations caused by the disability. 81

Building on the success of the South Carolina legislation, a toolkit for legislators recommends that legislation promoting the rights of parents with disabilities, including intellectual disabilities, define adaptive parenting equipment, strategies and supportive services.82 For example, parental supports can be understood to be a range of services that allow the parents to ameliorate aspects that affect their parenting responsibilities, such as activities of daily living. Parental supports are defined to include:

Parents may need human support in Activities of Daily Living (ADLs) such as dressing, bathing, walking, transferring, feeding, toileting; Instrumental Activities of Daily Living (IADLs) such as meal planning and preparation, managing finances, shopping for food, clothing, and other essential items, performing essential household chores, communicating by phone and other media, and getting around and participating in the community; education and training to help develop parenting skills; and parenting activities such as parental care and supervision, subsistence, medical or other care or supervision necessary for child well-being.83

Parental supports may include day-care services, respite care and informal support networks from faith-based organisations or community members such as neighbours, childcare assistants or personal assistants and supported housing.84 Modifications to social services rendered to a parent with a disability may include: increased ‘repetition of information and training’; modified ‘counselling/parenting skills training to provide more concrete hands-on instruction in a natural environment’; provision of ‘in-home parent modelling’; linking the parent with ‘a co-parent or mentor’; and tailoring the ‘parenting education to the needs of the parent’.85 The norms and standards on PEI programmes under the Children’s Act contain some of these examples. However, these are not adapted for parents with disabilities.

The UK provides for dedicated services to parents under the Care Act of 2014 and its regulations. It requires an assessment of the parents’ needs for support and provision for eligible parents on receiving such assistance - subject to available resources. In Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) the court highlighted the meaning of ‘parenting with support’ as undergirding the approach of professionals and courts as follows:

Courts must be aware of the distinction between direct and indirect discrimination. Careful consideration must be given to the assessment phase and in the application of the threshold test. Too narrow a focus must not be placed exclusively on the child’s welfare with an accompanying failure to address parents’ needs arising from their disability which might impact adversely on their parenting capacity. Joint training needed for adult and children’s services.86

The social work participants in a study evaluating supports offered to parents with disabilities found that neglect of the children was due to a lack of knowledge of the child’s specific needs, which could be remedied through provision of long-term support.87

4.2 Parenting capacity assessment

Considering that adaptations to obtaining evidence (how social workers go about interviewing parents with intellectual disabilities) and what constitutes evidence of parental capacity is lacking in the South African context, regard should be had for the situation in other jurisdictions such as the United States of America (USA) and European regional case law.

The heavy reliance by judges on evaluations in the USA can reinforce the existing bias of professionals conducting assessments.88 To counter this, the American Bar Association issued a resolution that states should not remove children or terminate parental rights on the basis of a parent with a disability, unless it can be shown ‘supported by clear and convincing evidence - that the disability is causally related to a harm or an imminent risk of harm to the child that cannot be alleviated with appropriate services, supports, or other reasonable modifications’.89 The resolution was used to bring about change in South Carolina’s legislative protection.90 However, even this novel solution places emphasis on the disability of the parent. Instead, the harm or risk of harm to the child should be cited as the ground for consideration, not the disability as a ‘casual explanation for the likelihood of harm’.91

The US National Council on Disability (NCD) drafted a model law to preserve families that include a parent with a disability, as well as a proposed amendment to the ADA to ensure the rights of these parents.92 These draft laws are based on the NCD’s comprehensive review of the barriers persons with disabilities face when exercising their right to create and maintain families.93 The NCD found that persons with disabilities in family courts often encounter evidence regarding their parental fitness, which is developed using inappropriate and unadapted parenting assessments’.94 The NCD found that this unbalanced evidentiary burden is exacerbated by the lack of resources to provide ‘adapted services and adaptive parenting equipment, and to teach adapted parenting techniques’. The NCD recommended that legislation, rules of court, and professional standards require those tasked with assessing parental capacity or a child’s circumstances to thoroughly investigate whether these documents comply with: a) disability-sensitive assessment guidelines; and b) the ‘need to modify the evaluation process or incorporate parenting adaptions’ to provide more ‘valid, reliable assessment of a parent’s capacities’.95 These standards should ‘require explicit evidentiary support for statements’ made ‘about a parent’s capacity and prohibit the use of speculation and global diagnostic or disability labels’ as grounds for intervention.96 For parents with intellectual disabilities, assessors must use the tools developed to assess their capabilities and needs, and should include existing and natural supports in the assessment.97 Evaluators using adapted PCAs must be trained in working with parents with disabilities, including on the need for accommodations of disability.98

The American Psychological Association (APA) issued guidelines for adapted assessments.99 These guidelines encourage disability-sensitive approaches to clients with disabilities, but also appropriate and accommodative assessment and intervention measures and protocols. The guidelines receive their impetus from core values from the APA’s Ethical Principles of Psychologists and Code of Conduct adopted in 2003 and amended in 2016 - namely justice and respect for rights and dignity.100 Social workers could also benefit from similar guidelines to ensure that their investigation and assessments are appropriate in the disability context and are not discriminatory. Psychologists are also expected to be familiar with laws that support and protect persons with disabilities.101

Suitable direction from other jurisdictions on how to adapt assessment, is therefore available to South Africa to ensure that assessments provided by psychologists, social workers and other professionals do not inadvertently discriminate against persons with intellectual disabilities, in particular. Appropriate assessments, where required in neglect cases, should be obtained in all cases, not only in cases where the parent has a disability. The reinforcement of disability prejudice is ever present in the formulation of assessments, as are prejudices against single-parent households, for example. That does not mean that the assessments lose their value from an evidential perspective. Rather, social workers, psychologists and other relevant professionals as well as magistrates (and lawyers) need training on what appropriate assessments are in relation to adaptability for persons with disabilities to remove embedded disability prejudice - whether stated or unstated. Currently, PCAs are not utilised for parents without disabilities as a routine practice. Singling out parents with disabilities to undergo such assessments would be discriminatory.

PCAs are blunt instruments and on their own are not flawless predictors of parenting ability. The validity of these tools considering the historical colonial and current use of these instruments on minorities such as aboriginal parents is questionable.102 Similarly, the unquestioning reliance on PCAs that rely on ableist stereotypes of parenting would be problematic and discriminatory for parents with disabilities. The Eurocentric bias in relation to family and good parenting should be unmasked and professionals involved in child protection should reflect on their ‘knowledge, beliefs and values’ to determine what expectations are placed on parents and also to consider how the best interests of a child is considered from the ‘Indigenous worldviews’.103 Similarly, a disability perspective would require considering how the best interests of a child are observed from the worldview of a parent with a disability, including those operating in kinship care frameworks or where outside of this African kinship form, within smaller family unit or as single parents. Such a perspective should aim to dismantle ableist bias embedded in PCAs, including in relation to cultural aspects of parenting that may differ from the social worker, assessor or presiding officer involved.

Curtis argues that judges (in Canada) are essentially gatekeepers for the ‘qualifications of and the quality of assessors’, as the assessors (social worker, psychologist, psychiatrist or similar professional) are unregulated.104 Curtis posits that judges should critically examine the assessment process to determine the validity and reliability of the opinion offered and should be familiar with the testing process and the fact that the clinical observation of the assessor is an opinion, not a scientific fact.105

While over-reliance on assessments occurs elsewhere,106 in South Africa low utilisation continues and the question is then when they are relied on - is this a critical engagement? The role of the presiding officer is more acute where the parents are unrepresented as the parents may not understand the import of the evidence. Even in cases where the parent is legally represented, the presiding officer’s critical role is imperative as the assessor is the ‘court’s expert’ and not that of the parties.107

While PCAs may contravene the full recognition of the legal capacity of persons with disabilities,108 where they indirectly or directly discriminate against the parent with the disability, some evidence of relevant parenting practice or conduct in relation to how the parent’s conduct and disability or health where relevant may impact on the child’s best interests, is needed in court. The European Court of Human Rights (ECtHR) in Cînţa v Romania,109 stated that clear evidence is needed where an allegation is put forward that a parent’s mental health (or intellectual disability) impairs their ability to care for their child at a particular time. The ECtHR clarified that psycho-social disability cannot justify differential treatment in maintaining contact with children compared to parents without such a disability.110 A prima facie case of discrimination based on the mental health of the parent was made out.111 The ECtHR held that:

The respondent State must also convincingly show that the difference in treatment was not discriminatory, that is to say that the applicant’s contact with his child was not restricted on discriminatory grounds, but rather that his mental illness had indeed impaired his ability to take care of his child or that there were other reasonable grounds for such a restriction.112

This kind of evidence may be set out in a PCA as long as the report identifies the actual deficient parenting of the adult concerned as implicating the child’s best interests - as opposed to reports where the assessment solely (and discriminatorily) identified the health or disability status of the person as the decisive factor. However, such a PCA would have to, if needed at all, comply with relevant ethical and legal safeguards so as to not violate the parent’s rights. Decoupling such an assessment from the legal personhood (capacity) of the disabled parent is required.113

A PCA which identifies the support needs of the parent to enable him or her to exercise his or her legal capacity in relation to parenting decision-making, as well as in participation in the court proceedings, would comply with article 12 of the CRPD. The support that these parents may require to enable them to effectively exercise their actual parenting, in other words how to care for their children to meet their best interests, should be identified in such assessments.

PCAs then remain a useful tool that should force the professional to engage with what support measures parents may need to fulfil their parenting responsibilities - including parents with disabilities. However, the presiding officer’s role as gatekeeper requires adept critical evaluative skills to ensure that the assessment is fair, valid, reliable, admissible, and that the weight attached thereto is appropriate. Since most parties in the Children’s Courts are currently unrepresented, the court’s active role in evaluating the assessment process is even more vital. Moreover, where the parent has an intellectual disability, the presiding officer must ensure that the parent consented to the PCA and understands the process and content of the assessment. Further research into the utility of PCAs in the South African context of family law proceedings is needed.

4.3 Specialised training

The investigation preceding the court proceedings is potentially the beginning of discriminatory treatment. Accordingly, specialised protocols for investigations of a person with a disability are needed. Here, risk assessments and the conduct of the interview should focus on the person’s behaviour, and not on their condition. Legislation should stipulate that: ‘Investigations of child maltreatment cases involving people with disabilities shall use a protocol that has been modified based on the individual with disabilities’ abilities.’114

Social workers should receive social context training to debunk stereotypical attitudes about intellectual disability and parenting that may permeate their investigations and reports to court. They are not adequately qualified and trained to conduct PCAs (adapted or not) and sorely need such specialised training as well. A code of ethics is lacking, and the relevance thereof to social workers should also be considered in future research.

Developing appropriate supports and a reliable referral network to provide services to parents with intellectual disabilities, is needed. This should be in line with the Committee’s guidance of support that is: ‘community based, adequate, accessible and available and appropriate to the goal of facilitating [their] child-rearing responsibilities’.115 While the primary consideration in childcare matters is the best interests of the child, social workers should remember that service provision is for the benefit of the whole family and family preservation is the main aim - with child removal a last resort. The norms and standards in the Children’s Act emphasise family strengthening and capacitation, but not the monitoring and implementation of PEI programmes. Specialised training for social workers and magistrates on the reasons for and how to implement adapted PEI measures for parents with intellectual disabilities, can remedy this gap.