Judge: Rimer, McFarlane and Vos LJJ
Citation:  EWCA Civ 128
Summary: Six days after the birth of their daughter, the parents agreed for her to be accommodated in foster care. The local authority sought a care order after their consent was withdrawn. During the proceedings the parents agreed to a document, in which they conceded that the threshold criteria was met, a full care order was subsequently made and their child was placed for adoption. The mother was of Turkish Cypriot origin, had a low level of cognitive functioning and a degree of speech and hearing impediment, although she could hear and speak in English without an interpreter. The father was of significant intelligence, from the Angolan Portuguese community, and was profoundly deaf and communicated using British Sign Language.
The Court of Appeal allowed their appeals because inadequate provision of interpretation (as opposed to translation) support had been provided to the father. He required both a sign language interpreter and a Deaf Relay Interpreter – a form of intermediary between him and the sign language interpreter – to ensure “cultural brokerage”. The court observed:
“18 … Communication between a profoundly deaf individual and professionals for the purpose of assessment and court proceedings involves a sophisticated, and to a degree bespoke, understanding of both the process of such communication and the level and character of the deaf person’s comprehension of the issues which those in the hearing population simply take as commonplace. For a profoundly deaf person, the “commonplace” may not be readily understood or accessible simply because of their inability to be exposed to ordinary communication in the course of their everyday life. What is required is expert and insightful analysis and support from a suitably qualified professional, and the advice this court has in the reports we have, a suitably qualified professional who is themselves deaf, at the very earliest stage.”
The consequence of the approach adopted by the first instance court, was a failure to meet the disability needs of the parties and a failure to produce an effective evaluation of the parents’ potential to look after their child. Drawing upon Baker J’s decision in Wiltshire Council v N and Ors  EWHC 3502 (Fam), the court provided the following (paraphrased) guidance:
Significantly it was noted:
“31 … The court as an organ of the state, the local authority and CAFCASS must all function now 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.”
Comment: We mention this case for two reasons. First, to illustrate the importance of fairness in the decision-making process: failing to take practicable steps to meet the person’s needs prior to seeking their consent risks bringing the fairness of their agreement into question. This is equally applicable in proceedings before the Court of Protection.
Secondly, the guidance and, in this particular case, the call for an intermediary between the deaf person and the sign language interpreter, very much reflects the supported decision-making philosophy of the CRPD. Without meeting the need arising out of their disability, the parents lost their child: by meeting that need, they may or may not, depending on the outcome of the case having to be reconsidered.