Mental capacity legislation and its impact on parents with learning difficulties involved in childcare and family law proceedings assessments in England and Wales

The purpose of this paper is to consider the impact of mental capacity legislation when applied to parents with learning difficulties who lack capacity within childcare and family law proceedings in England and Wales.

The paper relies on a range of material including reports published by independent mental health foundations, official inquiries and other public bodies. It also refers to academic and practitioner material in journals and government guidance.

The paper critically reviews the application of the guidance when assessing mental capacity legislation as applied in England and Wales and offers by way of illustration several case examples where psychological assessments, and the enhancement of capacity, have assisted parents who were involved in childcare and family law proceedings.

There has been little published research or governmental reports on the number of cases when parents involved in childcare and family law proceedings have been found to lack capacity. No published prevalence data are available on the times when enhancing capacity has resulted in a change of outcome in childcare and family law proceedings.

The duty is on the mental health practitioners assessing mental capacity that they do so in a structured and supportive role adhering to good practice guidance and follow the guiding principles of mental capacity legislation assuming that the individual has capacity unless it is established that they lack capacity. Guidance and training is needed to ensure that the interpretation of the Mental Capacity Act (MCA) and its application is applied consistently.

For those who are considered to lack mental capacity to make specific decisions, particularly within childcare and family law proceedings, safeguards are in place to better support such individuals and enhance their capacity in order that they can participate more fully in proceedings.

While the MCA legislation has now been enacted for over ten years, there is very little analysis of the implications of capacity assessments on parents involved in childcare and family law proceedings. This paper presents an overview and, in places, a critical analysis of the new safeguarding duties of mental health practitioners when assessing for, and enhancing capacity in parents.