On 4th August 2020 Lord Justice Peter Jackson handed down a judgment surrounding the topical and fast moving issue of contact with a child in care during these unprecedented times.
Spending time with your family has taken on a new and revised focus for a lot of families. Parents who do not have their children in their care often need reassurance that their children are safe. Children, more often than not, need to see their parents and have some direct interaction with them. Many parents are waiting on decisions to see if their children can come home. Those decisions are now delayed – consequently the need for these families to see one another, understandably, has a different significance and a different meaning to the ‘average household’.
Many families have been engaging in ‘indirect contact’ – which now has the potential to attract a more up to date definition -– no longer does it consist of old-fashioned pen and paper but modern and instant technology via Zoom and FaceTime etc.
Personally, I am surprised it has taken the best part of 5-months to have some sort of authoritative judicial guidance around contact with children in care.
During the midst of this outbreak there has been little guidance around the obligations on the State to promote these important relationships and whether authorities do have the legal footing to ‘pause’ face to face contact.
For my part, every case I am currently dealing with at the moment has some sort of contact question. Sadly, the relevant local authority, more often than not, participate in the hearing with no real plan – or even sense- as to what it is going to try and achieve for the subject child (ren) and the family.
There appears to be a growing trend of importing ‘policy decisions’ into this side of care planning and of course it is unacceptable for the driving force, in terms of welfare decisions, to be policy based. No doubt the constant repeat of the same issues in different cases is causing increasing frustration – so this judgment comes at a welcomed and much needed time.
So, what does the Court of Appeal tell us about the future management of children in the care system seeing their parents?
In Re D-S [2020] EWCA Civ 1031, the proceedings started in September 2019 and involved 3 children who were placed in the care of their maternal grandmother, under interim care orders. The children at the time were aged – 7, 3 years and the youngest at 18 months. Proceedings were issued as the youngest child had sustained a fracture which was considered to be an inflicted injury. The mother, who had been parenting the children, was placed in the pool of possible perpetrators.
Between September 2019 and March 2020, the mother had been enjoying regular contact with her children.
This was at a frequency of 3 times per week for 2 hours on each occasion. The contact was professionally supervised.
As a result of lockdown, the contact centre closed, the direct contact was paused and replaced with indirect contact.
The mother co-operated with the revised contact arrangements. In May 2020 she invited the authority to make proposals for the re-establishments of direct contact (face to face).
The local authority responded by stating that it did not propose to lift the pause button and resume face to face contact – relying on government guidance at that time.
Despite various requests – triggered by a shift in government guidance – the mother resorted to issuing a section 34 contact application. The court refused the mother’s application and so she appealed.
Pending the appeal, the authority reinstated direct contact however, the Court of Appeal considered the issue of contact with children in care during the pandemic to be of such wider significance that guidance was required.
So, what is the law and has it changed as a result of this decision?
Ordinarily when a child is subject to an interim care order, the child’s arrangements in terms of placement and contact will be set out and managed in accordance with the interim care plan. The legal obligation on a local authority is to promote reasonable contact with the child’s parents unless a court has decided differently.
In Re D-S Lord Justice Peter Jackson identified that the meaning of ‘reasonable’ has shifted during the pandemic and due to fluid management of the virus it is hard to give a crystallised and modern-day definition to that word.
Although, in fairness, it never really had a concrete definition – what was reasonable in one case would be completely different in another.
The government guidance issued during the pandemic (and as referred to by the Court of Appeal) confirmed the presumption that there should be continued contact between children and their family whilst the child is in the care of the local authority. However, it also allowed authorities to consider suspending direct contact arrangements on the basis that such contact was not practicable or consistent with the child’s welfare. The ability of local authorities to pause the direct contact had a reasoned basis namely to mitigate the risk of getting and / or spreading the virus.
“What about court orders related to contact for children in care?
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 many children, the consequences of not seeing relatives would be traumatising.
Contact arrangements should, therefore, be assessed on a case by case basis taking into account a range of factors, including the government’s current social distancing guidance and the needs of the child. However, we expect the spirit of any court-ordered contact in relation to children in care to be maintained.
Where it may not be possible, or appropriate, for the usual face-to-face contact to happen at this time, keeping in touch will, for the most part, need to take place virtually. In these circumstances, we would encourage social workers and other professionals to reassure children that this position is temporary. We would also expect foster parents and other carers to be consulted on how best to meet the needs of the children in their care and to be supported to facilitate that contact, particularly if those carers are shielding or medically vulnerable.
We recognise that some young children may not be able to benefit from virtual contact with their family, because of their age or other communication challenges. In these circumstances, local authorities should work with families to identify ways to have safe face-to-face interactions, whilst still adhering to social distancing guidance.1
When considering the most appropriate ways for children to stay in touch with their families, social workers and carers should seek the views of children who may welcome different forms of contact, including less formal and more flexible virtual contact with their birth families.”
Clearly we got to a point, during the peak of this wave of the virus, that local authorities were executing their duty by promoting the relationship between children and their parents via indirect methods – striking a balance between keeping children, parents and others safe from the virus but ensuring communication and relationships were maintained.
In Re D-S, the court identified that when an application, pursuant to section 34(3) of the Children Act 1989, for contact with a child in care is made, the following is applicable,
“The question for the court was not whether the local authority’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 key word is ‘appropriate’ and of course an assessment of what that means has to be made on a case by case basis.
If the court is satisfied that the forum and levels of contact are reasonable, in the current circumstances, then the ‘no order’ principle applies, and the authority manages the contact arrangements in line with its obligations pursuant to its interim care plan.
However, if the court considers that such arrangements are unreasonable then it can make an order that compels the local authority to make particular arrangements – so in this instance an order for direct contact.
The Court of Appeal identified where the lower court went wrong in determining the mother’s application. In short, it did not have all the necessary information to properly assess what was appropriate as it could not, with the required detail, sketch out what ‘in all the circumstances’ amounted to.
Any application made under section 34(3) has to be filtered via the framework of the welfare checklist. This mandates the court to ensure that the child’s welfare is its paramount consideration and not to make any order unless it would be better for the child than making no order at all.
Once the court is faced with such an application it is for the court to evaluate what is appropriate in all of the circumstances. The Court of Appeal emphasised that the court must always reach its own conclusion and ensure that it has the information it needs to do that.
“15. 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. In order to form a view about that, the court needed basic information about the children’s situation, the local authority’s resources and the current Government guidance. Unfortunately, the decision in this case did not grapple with these matters except at a general level. The judge was of course right to say that regard must be had to fluctuating Government guidance, including as to social distancing, but at the time he came to make his decision, social distancing was not an absolute obstacle to contact. He was also obviously bound to acknowledge the finite resources of the authority and its need to prioritise, but he had been given no evidence about that either. Clearly, the practical challenges might mean that less contact was appropriate than before – as the outcome of this case shows – but the evidence before the court did not support the conclusion that no face to face contact at all was possible. Accordingly, if the judge did not feel able to approve the proposal made by the mother, he should have adjourned for a short time for the local authority to provide better evidence. What he was not in my view right to do was to dismiss her application for the reasons he gave.”
The lower court fell into error by not having all the information required to properly answer the above question.
The lower court, in effect, endorsed a policy, blanket decision rather than grappling with the necessary but more nuanced question of the competing facts of the particular case.
“The key point is that contact arrangements should be assessed on a case by case basis”
The case concludes with an affirmation that despite Covid-19 pandemic the ordinary principles for these important interim decisions remain intact but recognising that the desired objectives may well be affected by real and genuine practical difficulties.
“The result of the appeal confirms that the ordinary principles governing applications for contact with children in care continue to apply during the Covid-19 pandemic, even though outcomes may well be affected by the practical difficulties that are being faced.”
So, what happens next?
To conclude, there is a duty upon all advocates engaged in case management hearings / issue resolution hearings to review the contact arrangements and to ask ‘is the proposed contact 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?’
If there is a definitive view reached that such arrangements are inappropriate or, at the very least there is uncertainty around this, then in the first instance the authority should be asked, via inter party correspondence, to remedy this within a very short and focused timeframe. Otherwise an application should be made to the court and decisions made on evidence particular to that case.
To read the full judgement, click the link below.
https://www.bailii.org/ew/cases/EWCA/Civ/2020/1031.html
Written by Lisa Edmunds, CEO & Senior Consultant Barrister of Unit Chambers.
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1 Department of Education, entitled Coronavirus (Covid-19): Guidance For Children’s Social Care Services: