CORONAVIRUS LAW: COVID AND CONTACT BETWEEN PARENTS AND CHILD
The number of cases dealing with issues relating to COVID have reduced. However issues still arise. In the judgement today in D-S (Contact With Children In Care: Covid-19)  EWCA Civ 1031 the Court of Appeal set out clear principles in relation to contact between parents and children in care. I write about it here because it is a decision that shows that “coronavirus” and “resources” is not a simplistic answer to the exercise of a discretion. Judgments have to be based on evidence not assertion.
“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.”
Three children were subject to an interim care order. Their mother applied to the court for contact. The mother’s application was dismissed by the judge. The judge found that indirect contact was reasonable given COVID issues, stating “The issue I have to determine is whether the arrangements currently being made for the mother to have contact with her children are reasonable in the current circumstances”
THE JUDGMENT OF THE COURT OF APPEAL
The Court of Appeal overturned the judge’s decision.
At the end of the hearing, we informed the parties that the appeal would be allowed and the judge’s order dismissing the mother’s application would be set aside and replaced by an order that there be no order on the application. That outcome is possible because there is happily now agreement about contact. We have nonetheless heard the appeal as the issue is of wider importance. These are my reasons for concurring in our decision.
As the judge eloquently wrote, the present emergency has caused sad losses for many people and real challenges for the professional services. For many children in care and for their families, the loss of contact will have been particularly difficult. Where it is unavoidable, it is an occasion for sympathy, but where it can to some extent be remedied, that should be attempted where possible. This is underscored by the prevailing guidance from the Department of Education, entitled Coronavirus (Covid-19): Guidance For Children’s Social Care Services:
“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.
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.”
The key point is that contact arrangements should be assessed on a case by case basis.
(1) The local authority is under a duty to allow the child reasonable contact with his parents: CA 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: CA 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: CA 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.
I therefore would not accept Mr Abberley’s argument in support of the judge’s analysis. 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.
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.