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The impact Covid19 (Coronavirus) and contact with children in care?
Legal practitioners in the field of childcare law will be aware that Covid-19 epidemic has significantly challenged the family justice system.
This article covers the issues around contact with a child in care and the legal principles, which govern it.
The key principle is that the child’s welfare is paramount and this applies to the contact arrangements when a child is in care. The Local Authority owes competing duties to ‘safeguard and promote’ the welfare of the child in their care. This includes the child’s health (Section 22 (3), Children Act 1989. The Local Authority also has to allow ‘reasonable’ contact between the child and their parents (Section 34 (1))
In this incidence, the ‘right to family life’ - Article 8 is engaged. However, this is a qualifying right, permitting legitimate interference ‘for the protection of health’. The European Court gives Member States a wide margin relation to health concerns. (Hristozov v Bulgaria App no 47039/11)
Comparing the public law with private child arrangements, the President of the Family Division guidance highlighted alternatives such as video and telephone contact. However, children of separated parents were able to move between their parents’ home.
See a recent article by M Scotland and G Lindfield for further consideration:
The main difference between public law and private children cases is that in private law cases the parents are on an equal footing. In public law or care cases , the Local Authority has the power to overrule the parents in terms of what level of contact takes place (section 33 (3)). Contact with children in care usually takes place at contact centres, but unfortunately, these were closed, during the Covid-19 lockdown and many are yet to reopen
In order to determine how contact can take place, the Local Authority has to consider the legal principles set out in Children Act 1989 and recent guidance. There was also a wide range of circumstances, which made it difficult to apply the principles to every case. For example, contact is different within care proceedings as opposed to the conclusion of proceedings. Within proceedings, the relationship between the children and their parents must be maintained and this is a much stronger argument for prioritising ongoing contact.
BBC news recently covered a case in Nottingham within care proceedings where a mother was not allowed to see her children because they could not be expected to ‘social distance’. The children had previously had supervised contact with their mother three times per week. When ‘lockdown began, the children had video contact with their mother.
In June 2020, the mother made an application for a contact order after the government changed the guidance to allow ‘social bubbles’. However, HHJ Jeremy Lea dismissed the mother’s application. The children were aged r between seven and one year old.
The mother applied to the Court of Appeal, which was upheld by Lord Justice Peter Jackson, Lord Justice Baker and Lady Justice Carr stating that the issue had ‘wider importance’.
‘In this case, as in others like it, there is no doubt that face to face contact would be in the children’s interests if it could be achieved,’ said Lord Justice Jackson.
He said, ‘unfortunately, the decision in this case did not grapple with basic information about the children’s situation, the Local Authority’s resources and the current government guidance.
He said while ‘practical challenges’ might mean less contact was appropriate evidence before HHJ Lea did not support a ‘no face to face contact at all’.
The Court of Appeal suggested that HHJ Lea should have considered more evidence before dismissing the mother’s application.
Re D-S (Contact with Children in Care Covid-19)  EWCA Civ 1031
This was an appeal in care proceedings by a mother (M) seeking contact to her three children who were in local authority care, placed with their maternal grandmother (MGM). The children were taken into care after the youngest had been found to have a leg fracture, that was considered likely to have been inflicted and possibly by M.
Before lockdown in March 2020, contact had taken place three times a week for two hours, supervised by the Local Authority (LA). Then, as the contact centres closed, video calls took place on an unsupervised basis. This was noted to not be a very satisfactory form of contact for the younger two children (aged 3 and 18 months).
At the Case Management Court Hearing on 28 May 2020, the M asked the LA to make proposals for the re-establishment of face to face contact. The court ordered the LA to provide a position statement explaining the consideration it had given to the matter and setting out any plan that it had.
A position statement followed, dated 3 June.2020, setting out that the LA did not propose to reinstate face to face contact. At the time, the Government guidance allowed small groups from different households to be in open spaces with social distancing. The LA said the children were too young to be expected to observe social distancing.
M pressed the point and the social worker was ordered to file a statement on the issue. The statement said that she did not propose direct contact because the children could not be expected to socially distance themselves from their mother and seeing her without being able to act naturally with her would be harmful for them and place M in an impossible position.
On 13 June 2020 the Government guidance changed to allow "social bubbles" and M applied for a court order, stating that she and MGM were willing to form a "bubble" and that whilst contact centres were closed, contact could take place in a local park, professionally supervised but with the support of MGM.
A telephone hearing took place on 22 June 2020 before HHJ Lea. After hearing submissions, he dismissed M's application and held that the court does not dictate to the LA what contact should take place between a child in care and its parents providing it is 'reasonable' and in the current circumstances, an order for indirect contact was 'reasonable'.
M was granted permission to appeal on 16 June 2020 and was notified by the LA on 17 July 2020 that direct contact would resume. The point on behalf of M therefore became academic, but it was recognised that the LA's approach to contact may resurface again if circumstances change and so the appeal proceeded.
The Court of Appeal allowed the appeal, set aside the decision to dismiss M's application and replaced it with an order that there be no order on the application (as there was now an agreement about contact).
The court recognised that for many children in care and their families, the loss of contact (due to the pandemic) will have been particularly difficult so where it can, to some extent, be remedied, that should be attempted where possible. Contact arrangements should be assessed on a case by case basis.
The court reviewed the statutory framework and the roles of the court and the LA in determining the arrangements for contact [11-13]:
(1) The local authority is under a duty to allow the child reasonable contact with his parents: Children Act 1989 s.34 (1). It must also endeavour to promote contact between the child and his parents unless it is not reasonably practicable or consistent with his welfare: Children Act 1989 Sch 2 para. 15 (1).
(2) Where an application is made to the court, it may make such an order for contact as it considers appropriate: s.34 (3). When doing so, the child's welfare is its paramount consideration. It must have regard to the welfare checklist and it must not make any order unless it would be better for the child than making no order at all: Children Act 1989 s.1 (1), (3) and (5).
In the first case, the decision about contact is one for the local authority. In the second case, it is one for the court. The fact that there will be mutual respect between the authority and the court cannot mask this distinction. A parent applying for contact is entitled to expect that the court will form its own view of what contact is appropriate in all the circumstances, however influential the professional view of the local authority may turn out to be.
Once the court has formed its own view, it has a broad discretion as to whether or not to make a contact order. It may well decide, applying the 'no order' principle, not to make an order because its conclusion about what contact is appropriate is broadly equivalent to be contact that is being offered, or, for example, because the making of an order may lead to a loss of flexibility, or because practical considerations make an ideal level of contact unachievable. But the essential point is that the court must reach its own conclusion and ensure that it has the information it needs to do that. It does not defer to the local authority, and the local authority is no more entitled than any other party to the benefit of any doubt.
The learned Judge had erred because the question for the court was not whether the LA's position was reasonable, but what contact was appropriate, giving paramount consideration to the children's best interests and taking account of all the circumstances, including the reality of the pressures on services at the present time.
The court commented finally that, in order for the court to form a view about what type of contact is in the children's best interests, it needs basic information about the children's situation, the LA's resources and the current Government guidance. In this case, the evidence before the court did not support the conclusion that no face to face contact at all was possible. If the Judge did not feel able to approve the proposal of M, he should have adjourned for a short time for the LA to provide better evidence.
For further consideration: