22nd Apr 2020

On 23rd March 2020, Boris Johnson announced measures with an intended purpose of limiting transmission of COVID-19 and of attempting to support the NHS during unprecedented times. The mantra ‘stay home, save lives’ has been repeated on just about every platform since that date. Whilst these measures are intended to assist the country in overcoming the hurdle it currently faces, they have had significant unintended consequences beyond the minor inconveniences of shop and restaurant closures. The consequences are being felt up and down the country by children in local authority care.

Local Authorities are under a duty to allow ‘reasonable contact’ between children in their care and their parents (among others) pursuant to s. 34(1) Children Act 1989. A Local Authority may refuse to allow such ‘reasonable contact’ if it is satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare, and, the refusal is decided upon as a matter of urgency and does not last for more than seven days (s. 34(6) CA 1989). A refusal to allow contact for a period longer than seven days is unlawful unless authorised by way of an order pursuant to s. 34(4) CA 1989. These provisions apply to children under both interim and full care orders. The current pandemic has done nothing to alter this position.

Further, the pandemic has also done nothing to alter the basic principle that in making decisions regarding child arrangements, the child’s welfare is the paramount consideration (s.1(1) CA 1989).

What the pandemic has done however, is emphasise the need for a careful balance to be struck between the welfare of a child in care and that child’s right to ongoing contact with its parents.

Contact comes in many shapes and sizes from indirect means such as video calling, telephone, letter writing, text communication and social media contact to direct face-to-face contact, including overnight staying contact, and contact that is supervised in a centre, or community based, with handovers taking place at a neutral third-party venue (often with CCTV in place!). Guidance has recently been given by the President of the Family Division in relation to contact arrangements in a private law setting. This emphasises the use of indirect forms of contact, including video and telephone contact, but also notes that children of separated parents are permitted to travel between homes for contact notwithstanding the current restrictions on travel. No such guidance has yet been given regarding contact for children in local authority care and one can understand why.

There are often significant practical differences between public and private law contact arrangements.  Each child is different and has their own competing needs. What is right for one child, may not be right for another. In a private law setting, parents are obliged to exercise their parental responsibility to ensure the arrangements best meet the child’s competing welfare needs. In many cases, that contact takes place unsupervised and is managed between the parents with the child travelling back and forth between households. With children in care, the Local Authority shares parental responsibility for the children with the parents. More often than not, contact between those children and their parents is supervised professionally and in a contact centre.

On 3rd April 2020, the Department of Education released its guidance for children’s social care, which highlighted the following : “we expect that contact between children in care and their birth relatives will continue. It is essential for children and families to remain in touch at this difficult time, and for some children, the consequences of not seeing relatives would be traumatising”.

The document goes on to state that arrangements for contact for children in care should be assessed on a “case by case basis”. It highlights that usual face-to-face contact is unlikely to be possible or appropriate and keeping in touch will, for the most part, need to take place virtually. Further, the guidance highlights the government’s expectation that local authorities will maintain the spirit of any orders that are in place regarding contact in order to maintain valuable family interactions.

Whilst the guidance is therefore clear that Local Authorities continue to be required to make careful decisions in respect of reasonable contact arrangements, the current pandemic has added a number of additional considerations into the mix. Many foster carers may be in ‘at risk’ categories. This may result in many children in care being required to self-isolate in order to safeguard their primary carers. Contact centres are at the very least understaffed and most are closed completely. Additionally, community-based contact is unlikely to be possible given the government guidance.

Whilst the present times are clearly worrying and bring with them uncertainty and frustration, the clear conclusion that must be drawn is that the onus must be on local authorities to identify arrangements that are flexible and achieve the aim of maintaining contact between children and their parents whilst complying with government advice. This is likely to result in an increased use of video calling and telephone contact. These arrangements may bring with them their own difficulties, such as access to phones and the internet which may not be available to some parents of children in care, and, in certain circumstances, may be inappropriate for the individual child. It may also result in family members who are foster carers and are not ‘at risk’ opening their doors for limited periods in order to allow some face to face contact to take place.

Ultimately, it is the duty of the Local Authority to implement creative and flexible arrangements for contact. Creative and flexible arrangements should not, however, result in blanket policies. As the Department of Education emphasised, each case must be considered on a case by case basis. Policies may well be open to challenge by way of Judicial Review. Instead Local Authorities must make careful and reasonable decisions based on the facts of each individual case and taking into account the needs of each individual child in their care.

Jonathan Jackson
April 2020

If you have any queries about this or any other related subject, please feel free to contact us on our usual contact details and we will be delighted to assist you.