Access to justice for mothers with intellectual disabilities in cases of child neglect at two KwaZulu-Natal Children's Courts

Abstract

Parents, especially mothers with intellectual disabilities, are at a disproportionately high risk of their children being removed from their care by child protection authorities for alleged child neglect – on the assumption that they are incapable of being adequate parents. This archival study examined the court records of two Children’s Courts in Durban and Pietermaritzburg, South Africa, for the period 2010 to 2014. The study explored how the South African social services and two Children’s Courts meet their international and constitutional obligations in promoting access to justice and supporting the parental rights and responsibilities of mothers with intellectual disabilities who are at risk of having their children removed from their care due to allegations of neglect.

Of 244 cases of neglect surveyed, nine case studies were analysed. In four cases children were removed from mothers with intellectual disabilities based primarily on the mother’s disability. The poverty of the families was found to be a contributing factor for removal. It was found that diagnostic-prognostic thinking pervades the social workers’ reports and the outcome of the alternative care placement by the court did not depart from such a grounding. Generally, parenting capacity assessments or psychological or psychiatric evaluations were not obtained, and thus diagnoses were not corroborated nor their ‘potential’ effect on parenting. The lack of legal representation, diagnostic-prognostic evidence tendered in court, inadequate and adapted prevention and early intervention measures offered to families, and the absence of procedural and reasonable accommodations in court processes, translated into inaccessible justice for these mothers. It was found that poverty correlates with disability in all of the cases. Conflation of intellectual and psycho-social disability occurred in five of the cases studied.

The literature reviewed illustrate the stigma and deprivations that women with intellectual disabilities experience in South Africa, despite the existence of some laws and policies aimed at protecting, respecting, promoting and fulfilling their rights. The mothers’ rights under international, African regional and constitutional laws, inter alia to equality, dignity and access to justice and children’s rights, including best interests, were analysed. The formulation of substantive equality as understood by treaty monitoring bodies requires pertinent measures to support and accommodate persons with disabilities in the justice system. Exacting requirements for determining the best interests of the child under international law have not been replicated in the practice of the Children’s Courts. The Children’s Act and its regulations are found wanting in relation to pertinent measures of reasonable and procedural accommodation of persons with disabilities in the Children’s Courts. The inquisitorial practice of these courts do not promote the rights to legal capacity, equality before the law and access to justice of these parents. Attorneys do not represent parents in these proceedings and the absence of cross-examination of social work reports may prejudice these parents. The policy framework of the main state departments including the Department of Justice and Constitutional Development and the Department of Social Development is fragmented and do not provide for a coherent plan to promote the participation of persons with disabilities in social services and the justice system.

Best practices from other jurisdictions such as Australia, the United Kingdom, and the United States of America on development of disability specific legislation, provision of procedural accommodations in laws and regulations, adapted social work practice and ethical principles for assessments, provision of intermediaries and formulation of appropriate questioning techniques (AQTs) were considered. Lessons from jurisdictions such as India, selected examples from the African continent were highlighted. The South African state’s formal provision for procedural accommodations is minimal and requires major reform to meet state obligations and constitutional duties towards persons with intellectual disabilities.

Recommendations are made in relation to law reform primarily of the Children’s Act 38 of 2005 and court rules. Specific recommendations include: providing legal representation at state expense, together with adequate training for lawyers and magistrates on informal measures of accommodations whilst law reform on formal measures is underway, and requiring magistrates’ to provide reasons for their decisions to promote deliberative decision-making.

It is recommended that social work practice is adapted to enhance full participation of these mothers and to address stereotypical and harmful ableist norms embedded in statutory services and court proceedings. Obtaining an independent parenting capacity assessment adapted for parents with intellectual disabilities from an expert such as a psychologist for forensic purposes, should be considered where relevant and should meet ethical principles. Magistrates should monitor the implementation of proposed prevention and early intervention and therapeutic measures identified by social workers in their reports.

An audit of the accessibility and procedural accommodations in the courts – after consultation with parties with disabilities before the courts is proposed. A court model is proposed on how to provide procedural accommodations in courts. It is recommended that the Children’s Court rules should be amended to include dedicated provisions on reasonable accommodations (individual specific measures); support in decision-making; AQTs; and intermediaries adapted to the civil process and to the inquisitorial role of magistrates and should be extended to adults with communication difficulties.

The drafting of disability-specific legislation to guide lawmakers and courts is recommended on broad measures for provision of procedural accommodations and support to these families. In the meantime, the existing legislative potential of the Promotion of Equality and Prohibition of Unfair Discrimination Act 3 of 2000 to enforce duties on certain sectors such as social services to provide reasonable accommodations to persons with disabilities, should be considered. Substituted decision-making laws, legal capacity inhibiting laws (such as those procedural rules in relation to persons with intellectual disabilities derogatorily described as ‘idiots’ for example) should be abolished.