This section provides lawyers with information about intellectual disability. It may also be useful for magistrates, court staff, external mediators and guardians ad litem who are involved in care and protection matters in NSW. Further information and research can be accessed on our Resource centre page.
A lawyer who is new to the care and protection jurisdiction may also want to look at the section on this website for disability workers and advocates. There is useful information on care proceedings in this section.Understanding Intellectual Disability
What is intellectual disability?
Intellectual disability is a disability characterised by significant limitations in both intellectual functioning and in adaptive behaviours. These limitations present before the age of 18.
Intellectual functioning refers to:
- Problem solving
Adaptive behaviours refer to skills that enable a person to negotiate and function in their world. These skills include conceptual, social and practical skills:
- Conceptual skills:
- concepts of numbers, money and telling the time
- Social skills:
- interpersonal skills
- social responsibility
- social problem solving
- following rules
- obeying laws
- avoiding being victimised
- Practical skills:
- activities of daily living (personal care)
- occupational skills
- use of money
- health care
- use of the telephone
What constitutes significant limitations?
Significant limitations refer to how a person is functioning relative to his or her peers.
This is measured using IQ testing and adaptive behaviour scales, more information on IQ is Assessed can be accessed here.
Criteria for intellectual disability diagnosis?
To meet the criteria for having a diagnosis of intellectual disability a person will have:
- An IQ score below or around 70 or as high as 75
- At least two significant limitations in at least two adaptive behaviour domains (for example conceptual, social and/or practical social skills) (More information on adaptive behaviour can be found here).
- A history of these limitations being present through childhood (for example the person reports being a ‘slow learner’ at school).
What causes intellectual disability?
The likelihood of a person having intellectual disability is increased through exposure to various risk factors at critical periods in his or her development, either before birth, during birth, or after birth. These risk factors include:
- diseases or infections
- environmental factors such as poverty
- lack of stimulation
- exposure to trauma
- While there is a wide range of known causes of intellectual disability, including a variety of genetic conditions, there remain many situations where the cause of intellectual disability is unknown.
Is intellectual disability the same as developmental disability?
Developmental disability is an umbrella term that includes intellectual disability and other disabilities that are identified during early childhood.
Some developmental disabilities are largely physical in nature, for example cerebral palsy or spina bifida. Some individuals may have a condition that includes a physical and intellectual disability, for example Down Syndrome.
What is the right way to refer to intellectual disability?
The right way to refer to intellectual disability is as “intellectual disability”.
When stating your client has intellectual disability use “person first” language; that is, refer to them as a parent with intellectual disability.
|Terms to avoid||Why to avoid these terms|
|Mental retardation; mentally retarded||These terms are outdated and have a pejorative meaning|
|Developmentally delayed; developmentally disabled.||Developmental delay pertains to children during the developmental phase 0-18 years and is not a term applied to adults with intellectual disability.|
What is the difference between a cognitive impairment and intellectual disability?
Cognitive impairment is an overarching term which includes a number of conditions which cause impairment to cognitive (brain) function such as intellectual disability, acquired brain injury, substance abuse related brain injury and dementia.
For more information on acquired brain injury visit the Brain Institute of NSW website.
Depending on the nature of the cognitive impairment, a person may have had a normal educational experience and learning trajectory in their formative years and would have been more likely to experience social acceptance.
How do I know if a parent has a mental illness or intellectual disability?
A mental illness or disorder is distinct from intellectual disability. A mental illness or disorder is characterized by a clinically recognisable set of symptoms or behaviours associated in most cases with distress and with interference with personal functions. People with mental illness may have cognitive impairments. For example they may have poor memory or impaired reasoning.
These impairments may be evident only when the person is acutely unwell or they may be long lasting. However the two conditions are very different (see table below).
|Intellectual Disability||Mental Illness|
|Thoughts are limited by cognitive ability and understanding||Disturbances in thought processes and perception. May present with hallucinations and delusions|
|Is lifelong||May be acute or chronic or episodic or cyclical|
|Onset before the age of 18 years of age.||Onset can occur at any stage of life|
|Medication cannot restore cognitive ability (though support and context will inhibit or enhance functioning)||Medication may control symptoms and enhance cognitive ability|
|Assessed by a psychologist||Assessed by a psychiatrist|
A person can experience intellectual disability and mental illness (this is known as co-morbidity). In fact, research shows that people with intellectual disability, particularly women, have a higher rate of mental health issues than the general population .
Mental illnesses present as:
- Anxiety disorders:
- social phobia
- panic disorder
- generalised anxiety disorder
- obsessive-compulsive disorder
- post-traumatic stress disorder
- Affective disorders:
- major depressive disorder (depression)
- bipolar mood disorder
- Substance use disorders:
- alcohol abuse and dependence
- other drug abuse and dependence
- Psychotic disorders:
- schizophrenia and substance-induced psychotic disorders
How will I know if a client has intellectual disability?
This is not always clear. Adults with intellectual disability rarely have up to date diagnostic reports. We have developed a screening tool that may be useful to identify whether or not your client has intellectual disability, which can be accessed here. Your client may have had testing undertaken while at school or for the purpose of qualifying for a disability support pension or job program but they may not necessarily have up-to-date reports.
Moreover, persons with intellectual disability, particularly those who will become parents, may not self-identify as having intellectual disability. This should not be viewed as them being deceptive or lacking in insight.
There are several explanations for this. One is that, for those who are most likely to become parents, they may not necessarily know that they have intellectual disability. They may know that they didn’t do well at school or may remember being sent off to have some tests with an educational adviser but may be unaware that they had a formal diagnosis of intellectual disability. While they have limitations, they manage to find ways to negotiate everyday events with minimal if any disability-specific assistance. Put simply, they are survivors and learn to get by.
Another reason not to self-identify relates to having the label of intellectual disability as part of their school experience. Because of the pain, stigma and bullying many people with intellectual disability experienced at school, they try to put the label behind them once they have left school.
After school they may successfully blend into their environment, especially in poorer neighbourhoods where employment opportunities are limited and expectations are low. It is only when they have a child and are forced on to a steep learning curve that their intellectual disability becomes evident again.
Screening tool for identification of a parent with intellectual disability
Should I get my client assessed for intellectual disability?
Whether an assessment should be undertaken depends on the reason it is being sought. Ask the question: ‘Why do I want my client to be assessed for intellectual disability?’
The mains reasons for having a parent’s IQ assessed would be:
- Where the history of learning difficulties is unclear and verification may be useful for the parent and others in understanding problems.
- To understand a parent’s cognitive functioning, especially their areas of strengths and weakness.
- For eligibility for specialist services or to advocate for generic services to be tailored so they are appropriate for the parent.
- Where a parent’s intellectual disability is explicitly or implicitly being used to explain parental incapacity.
- To develop appropriate educational and support strategies.
NOTE: The Parenting with Intellectual Disability Research is consistent in the finding that an IQ of 60 and above in itself does not preclude a person from parenting. To determine intellectual disability one needs to assess IQ and Adaptive Behaviours.
For more information about parenting and intellectual disability see Parenting with Intellectual Disability.
How is IQ assessed?
A person’s intellectual disability is formally assessed via psychometric testing. The most common IQ test for adolescents and adults is the Wechsler Scales. The Wechsler Adult Intelligence Scale is now in its fourth edition (WAIS IV). The Wechsler Adult Intelligence Scale provides a comprehensive assessment of a person’s intellectual ability.
The WAIS IV tests intellectual functioning across two key domains:
- Verbal (crystallised or acquired) intelligence
- Nonverbal (fluid intelligence)
Test results are translated into a set of three scores:
1. Verbal Comprehension Index (VCI) measures crystallised intelligence, that is:
- general verbal skills, such as verbal fluency
- ability to understand and use verbal reasoning, and verbal knowledge
It is based on both formal and informal educational opportunities and requires understanding words, drawing conceptual similarities, and knowledge of general principles and social situations.
2. Perceptual Reasoning Index (PRI) measures:
- Fluid intelligence – that is non-verbal and in-the-moment reasoning.
- Ability to:
- examine a problem
- draw upon visual-motor and visual-spatial skills
- organise thought
- create solutions, and then test them
It can also tap into preferences for visual information, comfort with novel and unexpected situations, or a preference to learn by doing.
3. Full Intelligence Quotient is the overall score based on the Verbal Comprehension Index and Perceptual Reasoning Index.
Who can administer Wechsler Adult Intelligence Scale?
The Wechsler Adult Intelligence Scale can only be administered by a trained clinical psychologist. Not all psychologists have experience or expertise in test administration and evaluation of people with learning difficulties and/or intellectual disability.
If a parent is undergoing an IQ assessment for the first time as an adult it is important that the clinician undertaking the assessment has expertise and experience in the field of intellectual disability.
Other IQ Tests
Two other IQ tests that you are likely to see administered are:
- The Kaufman Brief Intelligence Test 2nd Edition (KBIT-2)
- The Weschler Abbreviated Screening Index (2nd Edition) (WASI-II)
These brief IQ tests are not as comprehensive as the Wechsler Adult Intelligence Scales but remain standardised tools with strong psychometric properties and good clinical utility. 
They will often be used if an IQ assessment is requested as part of a broader assessment (such as a parenting capacity assessment).
The reason for this is that they are, as the names suggest, brief; taking approximately 30 minutes to administer (as opposed to the Wechsler Adult Intelligence Scale IV (WAIS) which takes approximately two hours to administer).
These brief tests are also able to be administered by professionals other than clinical psychologists including:
- Educational professionals
- Occupational therapists
- Social workers
- Social science researchers
It is important to note that these professionals must be trained and supervised by a clinical psychologist in the administration and evaluation of these tests.
Like the Wechsler Adult Intelligence Scale, the KBIT-2 and the WASI II measure cognitive abilities via two scales:
- Verbal (crystallised) Intelligence
- Nonverbal (Fluid) Intelligence
They both produce scores that are consistent in interpretation with the Wechsler Adult Intelligence Scale scores.
What do IQ scores tell us?
The only thing an overall IQ score tells us is where the person falls along the IQ continuum. Mean (average) IQ = 100 with the Standard Deviation (SD) =15. The diagnostic criteria for intellectual disability = 2 SD below the Mean. In other words an IQ score of 70. The “rule of thumb” is that if there is a discrepancy between the Verbal IQ and the Performance IQ of more than 15 points then a Full Scale IQ should be interpreted cautiously.
In such cases the report is likely to state “a full IQ score cannot be given”. This is likely to be the case if the person’s cognitive limitations are related to a learning disability (dyslexia) or to other conditions such as Asperger’s, or a traumatic or acquired brain injury.
In such cases, the clinician will focus on the individual sub-scores.
Limitations of the score
While an overall IQ score can be important for qualifying for eligibility for specific disability services, clinicians prefer (and it is recommended by the NSW Children’s Court) to report IQ results according to the range in which they fall.
|Below Average||80 – 89|
|Borderline||70 – 79|
The Wechsler Adult Intelligence Scale reports IQ below 70 is only one range – that is the extremely low range.
Reporting a person’s IQ as being in the extremely low range can be deceptive and is interpreted by people unfamiliar with this terminology as suggesting that the person’s level of functioning is significantly poor and translated as the person’s disability being severe.
For this reason it is important to understand where the person falls in the disability ranges before drawing a pessimistic conclusion about their cognitive capacity.
Understanding levels of intellectual disability
NOTE: The Parenting with Intellectual Disability Research is consistent in the finding that an IQ of 60 and above in itself does not preclude a person from parenting.
Correlation cannot be drawn between a parent’s IQ or cognitive limitations (albeit in the mild range and above) and parenting capacity.
The test results and subsequent report should provide useful insights into how the parent processes and uses knowledge, highlighting their strengths and weakness and making recommendations regarding ways to enhance cognitive functioning in everyday living; in particular in their parenting role.
NOTE: Only a trained professional, such as a psychologist, should interpret the meaning of an IQ score for an individual. This information is provided only to help you understand the concept of IQ and make sense of a client’s IQ report.
How are adaptive behaviours assessed?
Adaptive behaviours scales measure a person’s conceptual, social and practical skills necessary for everyday living.
- Conceptual skills refer to:
- Functional academics – things learnt through education e.g. reading, writing
- Social skills refer to:
- Social behaviours
- Leisure pursuits
- Practical skills refers to:
- Home living
- Community use
- Health and safety
The most common adaptive behaviours tests administered are:
- Adaptive Behaviours Assessment System 2nd Edition (ABASII)
- Scales of Independent Behaviours Revised (SIB-R)
- Vineland Adaptive Behaviours 2nd Edition (VABS II)
They are administered using a checklist or semi-structured interview format. They can be completed by:
- the client themselves with the assistance of the assessor
- their carer, or
- someone who has an intimate knowledge of the client’s every day functioning.
These scales provide scores which can be used to compare how the client functions in relation to peers of a similar age. In addition, scores in some areas may be indicative of maladaptive behaviours such as those associated with Attention Deficit Disorder.
Adaptive behaviour results may also be reported using terms such as ‘limited to age-appropriate’ or ‘age-appropriate’. The description “limited” applies to scores characteristic of a mild intellectual disability. Sometimes they will be described in terms corresponding to an age normative range.
For example, a report may read:
“[Client’s] overall measure of adaptive behaviours comparable to that of the average individual at age 15 years 5 months.”
This means that the person is functioning at what would be considered normal for an individual at 15 years 5 months.
The danger in this way of reporting adaptive functioning is that it can result in assumptions being made about the person. The person may be treated as if they are 15 years old when in fact they are an adult, and have adult life experiences.
Another thing to be mindful of is that Adaptive Behaviour Scales provide a normative comparison. They do not measure the adapted, indirect and/or skilful ways that a client with adaptive behaviours limitations on testing may use to navigate their everyday world to achieve an end.
It is also important to note that these scales do not measure parenting skills nor should they be translated into how a person may parent.
A functional parenting assessment is a different kind of assessment and requires observation of the parent and child in context.
All parents and their families have their own unique strengths and needs.
While we can make some generalisations about the support needs of families where a parent has intellectual disability; like all families, these families are a diverse group. Many assumptions about parents with intellectual disability are not supported by research evidence; see our Research centre page for more information.
Parents with intellectual disability are able to learn and apply adequate parenting skills, based on available evidence. Some myths about parents with intellectual disability that are not supported by evidence are:
|Low IQ is an indicator of poor parenting capacity.||Parenting capacity is not a static skill and is contextual.|
|Parents with intellectual disability have significantly more children than other parents.||There is no research to show that parents with intellectual disability have significantly more children than other parents.|
|All children born to parents with intellectual disability will also have intellectual disability.||Children who have parents with intellectual disability will not necessarily be born with intellectual disability.|
|Parents with intellectual disability will inevitably abuse or neglect their children.||Parents with intellectual disability are capable and successful parents.|
|Parents with intellectual disability will inevitably provide inadequate child care.||Parents with intellectual disability are capable and successful parents.|
These are arguments that are sometimes used in care and protection proceedings in support of care applications. The research is very clear on the above issues. More information and research can be found here.
It should not be assumed that parents with learning difficulties are incapable of providing the stimulation children need to develop ‘normally’. The key question is how to assist parents to meet their child’s needs by helping them learn effectively and providing the right support.
Providing the right support for parents with intellectual disability
Parents with intellectual disability, like all parents, need the right support to parent effectively. Parents with intellectual disability may need more support than other parents, and it is important parents are linked with appropriate support services. Tailoring services to address the learning needs of people with intellectual disability greatly increases the likelihood that they will benefit from interventions.
This is very important when considering intervention for parents before the Children’s Court in care matters. There are very few specialised services for parents with intellectual disability. However, if practitioners understand how to tailor services, mainstream agencies can provide families with the assistance they need. Service providers need to take into account the particular learning needs of parents when designing and implementing services and programs.
Some simple modifications of common practices can be very effective. These include:
- Simplifying explanations
- Keep checking understanding
- Breaking tasks down into manageable components
- Demonstrating new skills to the parent rather than just describing them
- Be aware of each parent’s reading ability and adjust material accordingly – pictures may be more helpful than written instructions or guidelines
For parents to make use of the information it will usually be necessary to give repeated opportunities to practice skills in the context they are needed. Where children are in out-of-home care, this means supporting parents to use contact visits to practice new skills, preferably over time in their home environment.
Restoration plans where parents have intellectual disability need to identify clearly:
- The skills parents need to learn
- The services that will assist them
- The opportunities that parents will have to practice skills with their children
Because anxiety and fear about being ‘monitored’ is likely to make it more difficult for parents to integrate new learning, it is important that practice happens in a supported setting, where parents are given feedback to help improve performance rather than feeling scrutinised.
Adapted from www.healthystart.net.au
Parents with intellectual disability may have developed a range of strategies to hide the fact that they don’t understand questions or the answers required, or that they can’t think through the issues quickly when put on the spot. In particular, they may say ‘yes’ to questions or agree with statements, regardless of what has been asked.
The strategies described below can help ensure that information is presented in a way that parents can understand, and that they are given the opportunity to express their views to you as their legal representative.
We have developed a set of fact sheets for parents about care and protection. To access them, see Fact sheets for parents. You can enhance the effectiveness of your communication with parents with intellectual disability by:
- Using communication strategies that promote understanding.
- Organising appointments to accommodate the parent.
When working with a client with intellectual disability it is important to use communication strategies that promote understanding. These strategies apply when you are interviewing clients and taking instructions, and when you are questioning clients in court. Parents with intellectual disability are more likely to understand what is said when you:
- Slow down your usual pace and give clients time to absorb what is being said to them
- Use language that is as simple and direct as possible
- Always speak directly to the parent, not to their friend, family member or support person. A support person can advise you if they think the parent does not understand what is being said to them
- Avoid talking down to the parent or talking to them as one would to a child
- Use concrete rather than abstract expressions. For example: ‘looking after your child well’ not ‘appropriate parenting’
- Use short, one or two syllable words wherever possible
- In choosing language use the simplest option. For example:
|About||Regarding or concerning|
|I think you said/did…||I put it to you that you said/did…|
|It’s true isn’t it?||Is that not true?|
- Avoid using words with more than one meaning. For example: ‘was this a play for sympathy?’
- Use active, not passive speech. (Subject, verb, object). For example: ‘the car hit you’, not ‘you were hit by the car’
- Avoid double negatives. For example: ‘did he tell you not to do this?’ not ‘didn’t he tell you not to do this?’
- Use simple verb tenses, with the least number of words possible. For example: ‘you say’ not ‘you are saying’
- Ask direct questions. For example: ‘Do you want a break?’ not ‘You will let me know, won’t you, if you do want a break?’
- Discuss one issue at a time. Before moving onto a new issue, check that a client has understood the key points from the issue you have discussed
- Break information into small, manageable pieces
- Avoid using legal jargon. For example, use ‘law’ not ‘statute’ or ‘legislation’, and use ‘what you can tell us about’ not ‘your evidence’
- If you do need to use a legal term, explain it in plain English. For example: ‘We can make a section 90 application. A section 90 application means we ask the court to change the decision about where your child lives and when you can see them’
- Assist recall with cues. For example, if asking about events that led to a family being evicted you should ask a series of questions to assist in recalling the information, such as: ‘Last year you were living at Blackstone. What was your house like at Blackstone? What were the reasons that you left there?’
- Ask either/or questions instead of yes/no questions. For example: “Did that make you feel happy or sad?”
- Use visuals to assist parents to express themselves. For example, sometimes using picture cards with a smiley, angry or sad face can help parents to understand questions, and to recognise that they are safe to say what they feel or think
- Visuals and graphics can also help you to communicate your point. For example, when explaining what will happen in the court, sketch the courtroom on a piece of paper and show your client who will be in the court, where they will sit etc
- Make it clear that parents are able to say “I don’t know” in answer to a question. Keep reminding them each appointment that this is an acceptable thing to do
- Keep questions short and simple. Only ask about one point in each question
- Include some questions that are open-ended and can’t be answered yes/no or good/bad. For example: ‘What do you do when Eddie has a tantrum?’
- Ask the parent for examples that illustrate general comments they have made. For example, if a parent says ‘I am going good at counselling’ ask ‘’What are you talking about in counselling?”
- Check regularly that your client understands the questions they are being asked and the information they have been given. This should be done at the end of every issue discussed and before moving onto the next issue. You can check understanding by asking your client questions about the issue you have discussed or asking them to tell you in their own words what you have just discussed. Where information has not been understood, re-explain it, emphasising the correct information, and check understanding again. If a support person is present they may be able to assist in explaining the issue to your client
- At the end of any meeting with your client, check that your client understands the key points you have discussed and what they need to do before their next meeting with you
- It is important to provide parents with intellectual disability with written information in a form they can understand. This may mean having it read and explained to them. We have developed a set of fact sheets for parents about care and protection. To access them, see Fact sheets for parents
Tips For Communication
I am careful to use words parents can understand. I avoid using court terminology like ‘interim’ or ‘Section 90’.If I am talking to parents about assessments, I explain that this means an independent person will come and look at them and their family. I also avoid using acronyms like PR or DV. Instead of talking about PR, I will talk about ‘who is the boss of this’. From the beginning I am preparing parents for what might happen. I say that I know that their first option is wanting their baby home today, but then I talk about the other options. For example, I ask them about who they would rather care for their baby.
They may not have told anyone that their child has been removed – I encourage them to think about whether they have relatives who they would like to care for their child, and to involve them as soon as possible. Once we are heading towards a care plan, if I see that parents can’t address concerns, I will explain that we have some real problems, because nothing has changed. I explain that parents can instruct me to keep going regardless, but I will also suggest that they think about what they want.
For example, if their child is with a grandparent, and I can see this seems to be a relief for them, they may prefer for me to focus on contact, or aspects of parental responsibility. We talk about details like getting school reports, involving grandparents in providing respite or parents being updated if something happens to their child. We look at arrangements for contact, including phone calls or skype, and maybe involving carers in contact. I recognise that it is important for parents to be able to say ‘I didn’t give up on my child’, so it’s important not to frame the issue as win/lose.
Appointments with your Client
It is important to organise appointments in ways that best accommodate a parent with intellectual disability. Each parent is different and you should ask your client how they would like to best structure the appointment sessions. Some ideas for how to arrange appointments to best suit a parent with intellectual disability include:
- Parents with intellectual disability may cope better with multiple, short appointments.
- If a longer appointment cannot be avoided, make time for breaks.
- Parents with intellectual disability may not be able to read court documents, or may need help to understand what they have read. The parent may have a support person who can help with this, especially if they have the documents beforehand.
- Try to organise appointments for times of the day or week when the parent is best able to concentrate. For example, parents may not concentrate well at the end of the day, when they are hungry, or on the day they have had a contact visit.
- Try to see parents in a setting where they are comfortable. This will most likely be at their home. It may be very useful for you as their lawyer to understand how your client manages at home. If this is not possible, it may be useful for an advocate or support person to visit your client in their home to help the client prepare their evidence, and in some cases give evidence themselves.
A Tip About Keeping Appointments With Clients
Each time I see a parent I make sure I tell them when they need to see me next. I find it is much easier to make appointments face to face than trying to chase people on the phone. Doing this consistently means parents aren’t so anxious and confused about what is happening next.
I ask people how they usually keep track of appointments, and if I can help them with reminders. If they usually put appointments in their phone, I make sure that happens when we make the appointment. When representing parents with intellectual disability I generally ask my admin assistant to phone people the day before their appointment if it is in the morning or on the day if it is in the afternoon. She will say ‘Your lawyer asked me to phone to check that you are still OK to come in this afternoon’. Having reminders makes it less likely people will miss appointments, and makes it easier for us to keep on track with time frames.
I let parents know what will happen if they ring my office, and try to set up realistic expectations about phoning me. I make sure the parent has information in writing about any appointment details, and anything else I am advising them to do, such as attending services or locating documents.
Sometimes I give parents an inexpensive exercise book that can be used to log details. If there is a lengthy adjournment and we have nothing to file (for example, where we are waiting for a clinic report), I will send a letter to the client reminding them that nothing is happening in court because we are waiting for the clinic report, and that I will let them know when we are ready for our next turn.
See also Introduction to intellectual disability.
A parenting capacity assessment is a formal assessment undertaken by a professional to determine an individual’s capacity to parent in a ‘good enough’ manner long term.
What is Parenting Capacity?
Parenting capacity refers to a parent’s ability to:
- Nurture their children
- Protect them from risk
- Foster their development
Parenting capacity is not a fixed trait that remains the same in all circumstances, and throughout the parent’s life. Rather, parenting capacity is a state that can change over time. For example, as parents have access to relevant support and education, and as they mature and benefit from life experience. Factors that influence parenting capacity include:
- Access to formal and informal support
- The parent’s perception of and response to supports
- The child’s needs and strengths
- Contribution of a parent’s partner
- Demands of parenting
- For example, the number and age of children
- Environmental strengths and stressors, such as
- stability and quality of housing
- quality of community resources such as transport, schools and health care
- characteristics of the local neighbourhood
Assessing Parenting Capacity
All parents have strengths and limitations. A good quality parenting capacity assessment will assess the parent in their unique context, take into account all of the factors listed above and identify any supports that may be required to further assist the individual in their parenting role.
The following points can be used when briefing a professional to undertake a parenting capacity assessment as areas they should cover.
- Describe how a parent:
- manages the household environment and cares for the child or children
- discusses identified difficulties
- comments on potential for change
- Describe the care needed for each particular child, taking into account:
- their health
- their development
- other individual characteristics
- (consider in relation to the parent’s strengths and limitations)
- Identify any factors that affect confidence in their conclusions, such as:
- limited information available on the day
- factors that may have affected the parent, or child on the day they were assessed
- Take into account the wider social context impacting on the parent and children including:
- involvement of other family members
- income security
- interaction with schools
- neighbourhood factors
- any safety concerns that might impact on parenting capacity
- Draw clear conclusions supported by the information provided in the body of the report.
- Provide clear and realistic recommendations about possible interventions that reflect the conclusion.
In addition, where a parent has intellectual disability, a parenting capacity assessment should:
- Address the range of factors that may impact on parenting, not only learning ability. These factors include:
- social factors
- parent’s history and health
- relevant life crises
- social supports and services
- family characteristics
- characteristics of the child
- parenting practices
- Assess factors relating to child safety that relate to cognitive skills. These include:
- assessing and responding to a child’s changing needs
- keeping children safe by identifying and responding to physical and social risks
- establishing and varying the daily routine
- managing emergencies such as illness or injuries
- Consider other disorders such as:
- mental health
- substance use
- physical disability or other health problems (research reports that parents with intellectual disability have higher than average rates of poor mental health, such as depression and stress related symptoms)
- Pay careful attention to social supports and the family’s circumstances in relation to:
- stability of housing and income
- different skills and abilities of both parents
- any ongoing access to services
- Consider the parent’s ability to nurture the child, including:
- promoting their development themselves
- promoting their development in partnership with educational services and other supports
- their ability to meet the child’s emotional needs
- Take account of the child/ren’s particular needs, such as health issues or disability, and the number of children
- Consider the impact of the parent’s role models and personal history as these can make a significant contribution to positive parenting capacity
- Assess the parent’s own place in their community, and their ability to provide children with positive socialisation
- Many parents with intellectual disability are fearful of being stigmatised and losing care of their children
- Supportive family or local community support is a significant advantage for parents with intellectual disability and their children
A best practice parenting capacity assessment for a parent with intellectual disability would take place in the parent’s home or environment in which they will be parenting. People with intellectual disability often develop skills in a particular environment and may require assistance when performing those skills in another environment, especially if the new environment is stressful. For example, a parenting capacity assessment in a clinician’s office.
Is an IQ Test Required?
There is no direct connection between the results of an intelligence test and parenting capacity. Higher intelligence test results do not ensure superior parenting capacity.
Intelligence or IQ tests focus on specific aspects of cognitive functioning, using puzzles and other exercises to assess general knowledge, vocabulary and capacity to solve problems. Research shows that where a parent has an IQ of over 60 there is no direct correlation between IQ and parenting capacity.
An IQ Assessment May be Useful Where:
- The legal representative or support staff have concerns about a parent’s cognitive capacity but there have been no previous suggestions that a parent has intellectual disability.
- There are competing explanations for a parent’s presentation. For example, a refugee from a war affected country may be so traumatised that they appear to have cognitive impairment.
- A parent has a history of brain injury (e.g. from a motor accident, assault, or from substance abuse), and there are questions about their capacity to learn, and exercise sound judgement in relation to their child’s needs. In this case IQ assessment may be used in conjunction with a range of neuropsychological tools to assess brain functioning. Having a brain injury does not necessarily mean a parent will have impaired cognitive ability or limited parenting ability.
Is an Adaptive Capacity Assessment Required?
For parents with a mild/borderline disability, an assessment of adaptive capacity and support needs rather than intelligence will contribute more to the court’s understanding of the family’s circumstances. Adaptive capacity should be considered in the context of the parent’s wider circumstances, for example support networks and housing stability. An adaptive assessment looks at:
- The parent’s ability to adapt to the normal demands of life, such as:
- managing money
- paying rent
- maintaining a house
- shopping and preparing food.
- An adaptive assessment may be conducted using a formal instrument, or through informal observation and discussion. Either method can produce an adequate assessment of adaptive functioning.
Click here for more information on intellectual disability including adaptive behaviour.
Who can do a Parenting Capacity Assessment?
Children’s Court Clinic
Parties may apply to the Children’s Court for a parenting capacity assessment to be done by a authorised clinician from the Children’s Court Clinic.
For more information on Children’s Court Clinic Assessment, refer to Things to Consider at each Phase: Assessment.
Parenting capacity assessments can be undertaken by private practitioners. The parent will need to self-fund this assessment or obtain assessment funding from Legal Aid (a minimal amount of funding for assessments is available from Legal Aid in very limited circumstances).
For more information on other assessment options refer to Things to consider at each phase: Other Assessment Options.
What is a Guardian Ad Litem?
A guardian ad litem (GAL) is a substitute decision maker.
The Children and Young Persons (Care and Protection) Act (‘the Act’) states that the court should appoint a guardian ad litem for the parent if, in the court’s view, a parent is incapable of giving instructions to their lawyer.
While intellectual disability is listed as one circumstance where a guardian ad litem may be appointed, this does not mean that every parent with intellectual disability should have a guardian ad litem.
In fact most parents with intellectual disability are able to instruct a lawyer, provided care is taken by the lawyer to communicate with the parent in an appropriate way or with the assistance of a support person or advocate.
What does it mean for a Parent to have a Guardian Ad Litem?
Once a guardian ad litem is appointed, the parent loses their direct voice in court proceedings about their child. The guardian ad litem, not the parent, instructs the parent’s lawyer based on their view of what is in the parent’s interests. Having a voice in court proceedings that affect you is a basic human right, so a guardian ad litem should only be appointed as a last resort.
If you have concerns about whether your client has capacity to give legal instructions you should consider the principles in the Capacity Toolkit before applying for a guardian ad litem. 
The Capacity Toolkit lists six principles to apply when assessing a person’s capacity as follows:
i) Always assume a person has capacity
Under the Common Law you must presume your client has the capacity to make their own decisions. This should be the starting point for parents with intellectual disability.
ii) Capacity is decision specific
Just because a person has a financial management order does not mean they can’t instruct a lawyer in care proceedings.
iii) Capacity is fluid
A person’s capacity can fluctuate over time or in different situations. Just because a client had a guardian ad litem appointed for a previous care matter does not mean they will need a guardian ad litem in future care proceedings.
iv) Don’t make assumptions based on appearances
Don’t assess your client’s capacity based on the way they look, communicate or behave, and don’t make assumptions based on their age, or because they have a disability.
v) Assess a person’s decision making ability, not the decision they make
A person does not lack capacity because they make a decision you think is reckless, unwise or wrong.
Everyone has their own values, morals and beliefs, and many people have made a ‘bad decision’ at times.
vi) Respect a person’s privacy
Assessing a person’s capacity involves dealing with their personal information.
- Tell your client why you need information when you request it
- Ask for their consent to talk to other people, and tell your client specifically who you will contact
- Only use the information for the purposes of assessing their capacity
Remember that evidence about a parent’s capacity to instruct a lawyer is not evidence of their parenting capacity.
Does my Client have Capacity?
When considering whether a client has the capacity to give instructions, you should look at whether the client is able to:
- Understand the facts and choices
- Weigh up the consequences of those choices and understand how the consequences affect them
- Communicate their decision
In general, if the person is able to do the above, they have capacity to instruct their lawyer.
A client, who has ongoing difficulty demonstrating understanding of the facts, choices and consequences of these choices may indicate a lack of capacity, which should be further explored by the lawyer.
Other signs that a client lacks capacity to instruct a lawyer are that a client may lack capacity if they are unable to do the following:
1. Express in their own words an understanding of the information provided and the issues being discussed.
Tips To make Sure Your Client Understands Your Advice:
The lawyer should ask the client to repeat advice back to them to determine if they understand the information. The types of questions the client asks may also reveal if they understand the information or issues.
The lawyer should ask open-ended questions rather than ones that can be answered by ‘yes’ or ‘no’ to determine if the client understands the information.
Click here for more information on communicating with parents with an intellectual disability.
2. Respond appropriately or consistently to questions.
A client lacking capacity may simply agree with everything the lawyer says. This may be to cover up their lack of understanding.
NOTE: The signs listed above are not exhaustive and should not be used to definitively decide that a client lacks capacity. The signs above may apply to clients from a non-English speaking background.
When dealing with non-English speaking clients, lawyers should use interpreters and be aware of cultural norms, for example avoiding eye contact, or not talking about family matters with a stranger or fear of disagreeing with action taken by a Government department.
Supported Decision Making
Decision making depends not only on cognitive skill such as reasoning but also on contextual factors such as past experience and access to the opinions of others, such as family or friends.
Supported decision making means that people with intellectual disability have patient and non-judgmental support, and accessible information.
Supported decision making means that the parent has a support person present when they talk to their lawyer or attend meetings with Community Service workers.
Supported decision making can ensure that a parent can give instructions to their lawyer, so that a guardian ad litem is not needed.
Relevant Case Law
Currently, there is no case law providing guidance on when a lawyer should apply for a guardian ad litem for a parent under the Children and Young Persons (Care and Protection) Act 1998.
Looking more broadly, the Supreme Court considered capacity to give instructions to a solicitor in Masterman-Lister v Brutton &Co . Chadwick LJ stated that the test to be applied is:
“Whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings.”
In Dalle-Molle by his Next Friend, Public Trustee v Manox and Anor , Debelle J stated:
“The person must be able to understand the nature of the litigation, its purpose, its possible outcomes and the risks in costs which of course is one of the possible outcomes.”
There are a wide range of issues to be considered for parents with intellectual disability at each stage of care proceedings. This section has some brief information about what to remember at each stage of the proceedings. The stages covered are:
- Early Intervention
- First Mention
- Establishment and Responding to Material
- Alternative Dispute Resolution
- Making a Section 90 Application
Please note, a number of changes were made to the Children and Young Persons (Care and Protection) Act 1998 in 2014. The amended Act has yet to come into effect. When it does, this website will be updated, as necessary, to reflect the changes.
See also the Section on communicating with parents with intellectual disability.
Clients will usually have contact with Community Service workers before care proceedings are initiated. If a client with intellectual disability is seeking legal advice before Community Services has initiated care proceedings, it may be useful to refer the client to a disability support service.
The support worker or advocate may be able to assist the client with referrals to other relevant service providers.
Click here to find out how a disability advocate can help your client.
As part of the child protection reforms introduced in October 2014, Community Services is focusing on early intervention work with individual families. The aim is to strengthen and improve the capacity of these families.
Parent Responsibility Contracts
As part of this focus on early intervention, there is expected to be an increased use of Parent Responsibility Contracts (PRCs).
A PRC is an agreement entered into by Community Services and one or more primary care givers of a child aimed at improving the parenting skills of the primary care givers. A PRC can also be entered into with an expectant parent. A PRC sets out what a primary care-giver or expectant parent needs to do to improve their parenting capacity e.g. attend drug and alcohol treatment. A PRC only takes effect once registered with the Children’s Court. A PRC can be entered into for a period of up to 12 months.
Before entering a PRC, the primary care-giver or expectant parent must be given a reasonable opportunity to obtain independent advice. At this stage a lawyer can help the primary care-giver or expectant parent to negotiate a PRC with which they are able to comply. The lawyer should focus on practicalities and details. For example, if a parent has to attend counselling the PRC should address any transport or childcare issues to make it possible for the parent to attend the counselling. Be realistic about what the parent can achieve, do not set them up to fail.
Where the client has an intellectual disability, the lawyer should assist the care-giver or parent to understand exactly what is expected of them under the PRC. The lawyer should also explain to the parent the consequences of breaching a PRC.
Parenting Capacity Orders
Parenting Capacity Orders (PCOs) are a new type of order introduced in 2014 as part of the Child protection reforms. The purpose of a PCO is to require a parent, or primary care-giver of a child or young person, to participate in a program, service or course or undertake therapy or treatment aimed at building their parenting capacity.
Community Services applies to the Children’s Court for a PCO. Alternatively the Children’s Court can make the order on their own initiative, if it determines that a prohibition order made under s90A of the Act has been breached. A PCO can be applied for at any stage of a care application or even if there is no care application on foot.
The Children’s Court will make a PCO if it is satisfied that there is an identified deficiency in the parenting capacity of the parent or primary care-giver; this deficiency has the potential to place the child at risk of significant harm; the parent/primary care giver is unlikely to participate in the program or undertake the treatment unless an order is made and it is reasonable and practicable to require the parent or primary care-giver to comply with the order.
When negotiating the terms of a PCO, a lawyer should make sure that the PCO is achievable for the parent and does not set them up to fail. As with PRCS, it is important that the lawyer works out the practicalities and details relating to the order, such as who is responsible for paying for any programs. The lawyer must also clearly explain to their client the consequences of breaching a PCO.
The first mention date is often the most difficult for the client. For this date, it is important to remind the client:
- Interim orders will most likely be made on that date.
- Care proceedings generally take a long time to finalise.
- They will be talking to their caseworker about times they can see their child.
Tips When Representing A Client with Intellectual Disability
When I first meet parents, they are overwhelmed and they can’t take in very much. I don’t try to explain the whole court process; just the information they need for the moment. I say that everything is temporary until lots of other things have happened, because the court needs all the information before making a final decision.
I tell them that my role is to take them through the court process, and that the Children’s Court is nothing like what they have seen on television. I explain that the court tells me an order in which I have to do things so that while parents might want me to say every time that they want their baby back, I can only talk when it is our turn.
I also explain that the main way we tell our story in court is on paper (affidavits). I tell people upfront that going through court is really hard. My job is to look after their interests, and that means sometimes I will make suggestions. They may not like what I say sometimes, but to do my job I need to tell them what might happen, not just what they want to hear.
I tell them about my experience representing parents and that while I’ve acted for parents, grandparents and children I have never acted for Community Services.
I don’t frame the court process as being about winning, and I never make promises about the outcome. I always tell parents that they don’t have to have me. If they don’t feel comfortable with me we can try and find a lawyer who is a better fit for them.
Establishment and Respond to Material
In responding to the material provided to the Court by Community Services during the proceedings, it is important to consider a number of things. First, does your client may need a parenting capacity assessment, and if so, who can provide this? See Assessment of parents with intellectual disability.
During care proceedings, material is provided to the Court in affidavit form. Parents with intellectual disability may have literacy issues which affect their ability to read the material provided by Community Services or assist in writing their responses. They may also need more time than other clients to recall events and formulate their responses. See section on Communicating with parents with intellectual disability for tips on conducting legal appointments when your client is a parent with an intellectual disability.
A Tip On Preparing Affidavits:
When I am preparing a response to affidavits I work through the affidavit, reading it to the parent. I don’t rely on them having read it, because many parents I represent have limited literacy. I check that the spelling of names and birthdates are correct, because often there are errors. When I am writing affidavits I use the parents’ words. I think affidavits should be the parents’ voice because it is their matter and it gives affidavits a ring of truth.
It also helps parents if they are cross-examined as they are more likely to recall what was said in affidavits. In my experience it is important for parents to feel they have participated and that the court has listened to them. Even if their child is not restored, parents sometimes thank me because they feel I listened, they got the chance to say what they wanted the court to know, and someone other than Community Services made the decision.
When a parent has difficulty reading I ask someone else to read the affidavit back before the parent signs it. That could be an admin officer, or someone who is supporting the parent. This gives the parent time to think about the affidavit and suggest changes.
Getting Accurate Information
You may need to contact support services that have worked with your client.
Click here to find out how a disability advocate can help your client.
A Tip About Contacting Support Services
My view is that parents with intellectual disability need the right help so they can learn. So finding out about the assistance they are being given is very important.
If parents are receiving services I ask them for written permission to contact services and ask for information about the services they have provided, the parents’ compliance and their views about prognosis. I ask if they can comment about parenting capacity, but this will depend on their role.
I am clear about why I need the information and I find agencies would prefer to provide information in this way, rather than having their files subpoenaed.
An assessment application can be made by any of the parties under the Children and Young Persons (Care and Protection) Act 1998 (NSW). This involves a Children’s Court clinician assessing the parent and making recommendations about their parenting capacity. When assisting a parent with intellectual disability you may need to consider whether you need a subsequent assessment.
Children’s Court Clinic Assessments
Children’s Court Clinic assessments are undertaken by authorised clinicians who are experienced psychologists, psychiatrists or social workers. Their expertise is evaluated by a specialist professional advisory group.
Authorised clinicians receive additional training and supervision in conducting clinic assessments. Their reports are reviewed by the clinic before submission to court. The Children’s Court Clinic is independent of all parties, including Community Services and Legal Aid. This does not prevent a report from being challenged in court and the clinician may be cross examined.
The focus of a clinic assessment of a person’s parenting capacity is not on the identification of any disorder, including intellectual disability, but on the person’s current and potential capacity to manage the responsibilities involved in child rearing. An assessment will focus on the needs of the child, and the best ways of meeting these now and into the future.
A report’s recommendations may include:
- Restoration of children to their parents’ care
- Restoration conditional on various risk factors being resolved or
- Suggestions for maintaining meaningful relationships between the child and parents and significant others, should the parent not be able to provide full care.
A clinic assessment will generally consider available options to address gaps between a child’s needs and the resources of the parents. These are usually highlighted in the report’s conclusions and form the basis of any recommendations.
Guidelines for applying for clinic assessments and framing questions can be found on the Children’s Court Clinic website.
Other Assessment Options
In addition to a Children’s Court Clinic assessment, which will be available to all parties, legal practitioners may consider other options for obtaining assessment information. These options include:
- Assessments funded by Legal Aid.
- Assessments funded where parent has other means, such as compensation payments or a trust fund.
- Review of past assessments obtained in other contexts, such as schooling, employment or past medical reviews.
Parents or other family members may already hold copies of assessments previously obtained for other purposes, such as medical treatment or compensation matters. Past assessments may be also obtained by subpoena or on application by the parent.
Past assessments will be most useful when they clarify a specific point, for example:
- Addressing the nature of a past head injury
- The reason for a special school placement
- Clarifying any diagnosis of intellectual disability
They may be of limited usefulness in relation to parenting capacity, especially when:
- Undertaken for a very different purpose.
- Undertaken before the parent reached adulthood,
- They address only cognitive impairment without considering adaptive capacity (See adaptive capacity assessment section for more information). Internal Link.
Reports from Service Providers
Practitioners may wish to consider whether it would be in the parent’s interest to obtain reports or support material from other service providers that have provided support, assistance or delivered parenting programs to the parent.
Agencies that have previously provided services to the family may also be asked to provide reports describing their work with the family, and these may include views about the family’s capacity or needs.
Remember that a report prepared by a service provider may not have the same rigor as an assessment, and that conclusions expressed with confidence may not necessarily be based on a well-reasoned review of all the relevant information.
Thanks to Mark Allerton, Director, Children’s Court Clinic, Susi Blacker, Senior Psychologist, Children’s Court Clinic, and Dr Gary Banks, Authorised Clinician for their contributions to this section.
Alternative Dispute Resolution (ADR)
As the parent’s legal representative it is important to be informed about Alternative Dispute Resolution (ADR) in general and the model of ADR that your client is to attend. The generic term “care conference” will be used below to refer to the ADR in Care and Protection proceedings.
Currently there are two models of ADR that take place in the Care jurisdiction:
Lawyers should be familiar with the NSW Children’s Court Practice Note 3, “Alternative Dispute Resolution in the Children’s Court”.
A care conference provides the opportunity for parties in proceedings to discuss the case in a safe, informal setting, separate from the formalities and procedures of a courtroom. The way in which a care conference is conducted is quite different from the way things operate in a court. A care conference has an informal atmosphere.
Everyone gets a chance to speak and put forward their point of view in a frank and open manner, without being constrained by strict adherence to practice and procedure. No-one is cross-examined, but rather there is an open exchange of views and sharing of different perspectives in a safe, structured environment, free of legal and technical language.
Parties are encouraged to speak for themselves but can ask their lawyer to speak for them if they wish. In most care conferences, the parties and their lawyers both contribute to discussions. Parents have an opportunity to ask questions and to clarify aspects of the case that they do not understand. They can expect to gain a better understanding of the case by being involved in a care conference.
Dispute Resolution Conferences (DRC)
A Dispute Resolution Conference (DRC) can occur at any stage of the proceedings, though is commonly used after the matter has been established, and is a form of Alternative Dispute Resolution. As part of the reforms to the Act introduced in 2014, it is expected that DRCs will increasingly be used to resolve contact issues that arise after final orders have been made.
DRCs are conducted by a Children’s registrar. DRC’s are conducted at court, they are set down by the magistrate and are a court proceeding. In private sessions with the parties, the registrar can ask questions that allow parties to consider the merits of their case. The Children’s Registrar is a conciliator and has an advisory role but not a determinative one.
The purpose of the DRC is to encourage parties to agree on action that should be taken in the best interests of the child or young person concerned.
Mediations are conducted by a mediator away from the court. The role of the mediator is to assist the parties to find common ground and so develop a joint plan which may then be put to the court. At the conclusion of mediation, the mediator will provide a report to the court stating whether agreement has been reached. If no agreement is reached the report will include the issues that remain in dispute.
The benefits of care conferences can include earlier resolution of care proceedings and enhanced opportunities for parents to ask questions and express their opinions in a safe and less formal setting. This is important for all parents, including parents with intellectual disability.
What is the Children’s Court Registrar or Mediator’s Role?
The Children’s Court registrar (‘registrar’) or mediator chairs the care conference. They make sure that all of the issues are clearly identified at the beginning of the meeting and that the subsequent discussion on each issue is comprehensive and thorough. The registrar or mediator encourages participants to use simple, everyday language which is free from legal or technical expression.
They make sure that everyone has an opportunity to speak and be heard. The registrar or mediator encourages participants to be frank and open but to do so in a respectful and considerate manner. They also make sure that there are opportunities for breaks, refreshments, private discussions and smaller group discussions as appropriate.
Care conferences are confidential. At the beginning of a DRC the registrar will explain the confidentiality provisions that apply to a DRC.
Prior to attending at mediation, parties are asked to sign a confidentiality agreement. Lawyers need to be familiar with the confidentiality agreement and give their client legal advice prior to their client signing the agreement. Any agreements reached at a care conference can be presented to the magistrate for further consideration.
How to get the Most from a Care Conference
Care conferences are most successful when parents are given the opportunity to appropriately express their feelings about:
- What is happening in the lives of their children
- Their concerns
- Their thoughts about future care arrangements for their children
In the care conference, it does not matter that the parties have different ideas about the future care arrangements for the children. What is important is that parents, in particular, are given the opportunity to have meaningful, respectful discussions about their children with the other parties.
The best outcomes for parents are often achieved where:
- Parents are able to speak for themselves
- Parents speak directly to the other parties and listen to them, even if they do not agree
- The care conference is not rushed. It is essential that there is time for everyone to express their views
- Lawyers advocate, on behalf of their client, the aspects of their case that have merit, based on instructions and with reference to the law
- Lawyers take the time to update their legal advice, if necessary, at intervals during the conference
Before the Care Conference
Before the care conference, you can be most helpful to your client by explaining the way care conferences are run, including the important ways in which they are different from formal court proceedings. It is important that your client understands:
- They are welcome to speak for themselves at the care conference, although not required to do so
- The care conference is a chance to say what they think, regardless if this is different to other views expressed at the conference
- Everyone is expected to be polite. It will not be acceptable to talk in a threatening or aggressive way. The registrar or mediator will remind the parties of this, if necessary
- The confidentiality provisions that apply in a care conference
- As their lawyer you can assist your client to communicate what they would like to say. This can include:
- Questions they have about Community Services’ recommendations, including anything they need to do for different recommendations to be considered
- Questions they have about their children and any concerns they have about them e.g. medical concerns
- Steps they have taken to address concerns about their parenting or living situation, such as separating from a violent partner or completing a parenting course
Make sure your client knows where and when the care conference is taking place. If this is a different place to the court that they have attended already, make sure they are aware of this. You may find the DVD Alternative Dispute Resolution in the Children’s Court useful to help your client understand how the session will be conducted.
Parents with adequate reading skills may also benefit from having a copy of the relevant brochure, “Going to a Dispute Resolution Conference in the Children’s Court, Information for parents and carers” or “Going to mediation.”
The DVD and brochures can be obtained from the Office of the Children’s Court registrar on (02) 8886 1469.
You will also need to obtain your client’s instructions about the following matters before the registrar or mediator makes contact with you:
- Ask your client if they would like a support person to attend the care conference with them, and if so, who that person will be.
- The person managing the care conference needs to know, in advance, the name of the support person so that they can manage any objections from other parties prior to the care conference, and make a decision about the support person’s attendance at the care conference. This will apply to other people your client may want to attend, such as an elder from their community, or a potential carer for their child.
- Advise the support person that their role is limited to helping your client feel safe and able to express their views. The support person will not have an opportunity to express their own views about what should happen to the children. Information for support workers attending care conferences can be found here.
- It may be helpful to explain explicitly to support workers that a DRC or mediation is different from a case conference, and so it will be different to meetings they may previously have attended with Community Services.
- Ask your client if they have concerns about being in the same room as anyone else who will be attending, for example an ex-partner. If this is the case, advise the person conducting the care conference so they can consider options for addressing this issue. If there is an AVO in place make sure that the registrar or mediator is aware of the conditions, as these should be followed during the care conference.
- If your client has participated in a parenting capacity assessment and would like the person who conducted the assessment to attend the care conference, it is important that you seek directions from the court for this to happen (See NSW Children’s Court Practice Note 6). While the person facilitating the care conference needs to know that the expert or Children’s Court clinician will be attending, they are unable to authorise their attendance at the care conference.
- If your client needs an interpreter, make sure the court or other relevant person has made the necessary arrangements.
During the care conference you can be most helpful to your client by:
- Communicating effectively. See Communicating with Parents with Intellectual Disability.
- Using plain English and, by reference to the registrar or mediator, encouraging other parties to use plain English. This includes explaining any legal or technical term used during the conference.
- Using your client’s name, and the names of their children when speaking to them or about them, and encouraging other parties to do the same.
- Encouraging your client to speak for themselves and reminding them of anything they might have forgotten or want to add to the discussion.
- Helping other parties, by reference to the registrar or mediator, to frame questions so that your client can understand the question.
- Assisting your client to understand what other parties have said. You can ask for breaks to clarify matters with your client.
- By reference to the registrar or mediator, making sure that the care conference is paced so that your client can participate in discussions.
- If your client is attending with a disability advocate or other support person, make sure that you and the advocate/support person share the same understanding of the client’s position.
- Advocating your client’s case by reference to the law.
- Advocating for the best possible outcome for your client based on their instructions.
Thanks to Nicola Callender and Alan Ogg for their contributions to this section.
A Tip About Attending Dispute Resolution Conferences
Before I go to a DRC with a client I meet with them about half an hour beforehand. I want to know what has been happening, and to talk about the session. I work out some signals with parents. For example, I might say I will kick them under the table if I want to suggest they stop talking about an issue. We talk about how they can let me know if they want a break. I tell parents that this is their chance to talk without having to put things in an affidavit, and I explain about the confidentiality provisions.
If the matter does not resolve by consent, then the matter will proceed to hearing. If the matter proceeds to hearing, the parents may have to give evidence. It is important to prepare parents for giving evidence and being cross-examined.
A Tip About Cross Examination
When parents are being cross-examined I give them the court documents with numbered tabs, to make it easier for them to find material when they are questioned. I explain that people will ask questions, and that sometimes I will object, for example if the question isn’t to the point. I let them know that they can ask for a break and they can ask for questions to be explained more clearly. I tell them that I do those things, so the court won’t think badly of them if they do it too. I tell parents if they feel nervous to look at me.
Making a Section 90 Application
Whatever the outcome, it is important that the parent understands what has happened and what the care arrangements will be for their child.
A parent may also want to know what can be done if they are not happy with the outcome. Parents often want information about taking the matter back to court and making a Section 90 application.
After final orders are made practitioners should write the parent a letter and include a copy of the final outcome. The letter should explain the final orders. If the child was not restored, the letter should outline what changes would be needed before the parent could consider making a section 90 application.
A Tip About S90 Applications
When talking to parents about S.90 I explain that if Community Services says they can go for S.90 later, this shouldn’t be a reason to settle as they are not being offered anything, because they have this right already. I explain that S.90 applications are really hard, and require a really big change.
If parents come back and they have done the things that were suggested, such as engaging with services, or separating from a violent partner, assuming they meet the merit test, I apply for an updated assessment.
Even though a S.90 application may not result in restoration, it can achieve other things, like improvements in contact arrangements. It’s understandable that if their children aren’t coming back, parents may feel like giving up which isn’t helpful for their children.
When carers appreciate that the parent is not going to harm their child, it’s just that they don’t have the capacity to care for them, sometimes they are more willing to be involved in contact visits, and the overall outcome can be a better one for everyone.
Your client may need services to:
- Reduce the likelihood of children being removed and placed in out-of-home care
- Address specific issues that have led to child protection concerns
- Assist with restoration and family preservation
It may also be beneficial to refer your client to:
- Programs for parents with children in out-of-home care
- Parenting courses
- Check this list of useful services for parents
Disability support and advocacy services are able to provide a wide range of assistance to your client. This can include:
- Support for your client through the care and protection process
- Assistance with referrals to other services or programmes. For example: housing, social security, counselling or parenting courses
- Assistance with other legal issues
- Non-legal advocacy and support
A support worker/advocate can assist parents in ways that may reduce the pressure on the parent’s solicitor. These include:
- Helping parents to understand why their children have been removed
- Reminding parents of upcoming appointments and court dates
- Supporting parents during meetings with Community Services
- Looking for services to help parents address the reasons why their children were removed
- Helping parents read through documents
- Writing down questions that parents want to ask at meetings
- Helping parents work out when they need to contact their solicitor
Support workers and advocates can be found in a range of ways, depending on the parent’s background and needs.
Often the best place to find a support worker or advocate is from a service that has previously worked with a parent and already has a trusting relationship with them. Sometimes services will be willing to provide support for a parent through the court process even if they are no longer eligible for other services.
It is recommended that before asking a parent to contact any of these organisations, lawyers phone first to confirm that the service would be able to assist, given the parent’s particular circumstances. In some circumstances it may be appropriate for the lawyer to make the referral to the organisation on behalf of their client.
Disability advocacy services that provide individual advocacy are listed below. Please contact each service directly for more information. If you are a disability organisation and wish to have your listing added please contact us.
For a list of support, information, referral and advocacy services go to the useful contacts section of this website.
|Sydney Metropolitan Areas|
|Action for People with Disability Inc.||North Sydney Local Planning Area||(02) 9449 5355
|City and Inner West Disability Advocacy||Ashfield, Canada Bay, Leichhardt, Marrickville, City of Sydney||(02) 9281 8699
|Macarthur Disability Services||South West Sydney and the Southern Highlands||(02) 4621 8400
|Side by Side Advocacy||Ryde, Hunters Hill, Lane Cove, Hornsby, Willoughby, North Sydney, Northern Beaches||(02) 9808 5500
|Central and North Coast|
|Ability Inc||Far North Coast of NSW||Contact: 1800 657 961 or (02) 6628 8188
|Central Coast Disability Network||Central Coast||Contact: (02) 4324 2355
|Illawarra Advocacy||Illawarra from Helensburgh to Geroa||(02) 4229 4999
|Disability Advocacy Network (DAN)||Riverina, Murray S/West Slopes, Southern Tablelands and Central Murrumbidgee||1800 250 292 or (02) 6921 9225
|Disability Advocacy NSW Inc (DA)||Newcastle, Hunter, Tamworth, Armidale, Coffs Harbour Taree and Port Macquarie||1300 365 085
|Disability Advocacy and Information Service (DAIS)||Southern NSW and North-Eastern Victoria (located in Wodonga) works with people with disability in Albury||Contact: 1300 886 388 or (02) 6056 2420
|Region: Disability Information Advocacy Service Inc (DIAS)||Central West NSW. Office in Bathurst. Outreach service to Dubbo, Cowra, Mudgee and Orange||(02) 6332 2100
|Indigenous Disability Advocacy Service (IDAS)||Western Sydney and Regional Centres of NSW||(02) 4722 3524|
|Newell Advocacy Inc||Shires of Narrabri, Moree, Gwydir, Coonamble, Warrumbungle and Walgett||Contact: Narrabri (02) 6792 3195 or Moree (02) 66752 1215|
|South East Advocacy (SEA)||Bega Valley Shire||(02) 6492 0200
|People with Disability (PWD)||1800 422 015 or (02) 9370 3100
|Multicultural Disability Advocacy Association of NSW (MDAA)||1800 629 072 or (02) 9891 6400