We are plotting a course through unchartered waters. Never before has the family justice system had to deal with such a wide-reaching challenge as the COVID-19 epidemic. The issue of contact with children in care presents one of the most turbulent seas to cross. This article explores the legal principles that will give family practitioners their bearings and guide the court’s approach through the coming weeks and months.
The key principle that always bears repeating is that the child’s welfare is paramount when considering their upbringing. This has long been held to apply to contact arrangements for children in care (Re B (Minors)  3 WLR 63). The local authority owes the competing duties to “safeguard and promote” the welfare of children in their care, including their health (section 22(3), Children Act 1989), but also to allow “reasonable contact” with the child’s parents (section 34(1)).
For most children, the current lockdown is an act of altruism: it is to prevent the spread of coronavirus rather than protect the children themselves, who generally show only mild symptoms. If the child’s welfare is paramount, then the court will need to balance the impact of reduced contact with the risk to the child’s own health, not the risk to the general public.
The right to a family life under Article 8, ECHR is engaged. But this is a qualified right, permitting legitimate interference “for the protection of health”, and the European Court has always given Member States a wide margin of appreciation in the area of health (e.g. Hristozov v Bulgaria App no 47039/11).
Comparison with private child arrangements
A recent article by Maria Scotland and Gemma Lindfield considered the guidance about compliance with child arrangements orders from the President of the Family Division. This guidance highlights the alternatives of video and telephone contact, but notes that children of separated parents are permitted to move between the parents’ homes.
The main difference for children in care is that, whereas separated parents are on an equal footing, the local authority has the power to overrule parents when determining the level of contact (section 33(3)). There are also significant practical differences. For example, contact with children in care is more likely to be supervised or in a contact centre, but many public spaces and contact centres are now closed during the coronavirus lockdown. Even after final orders, it is highly unlikely that the child will be able to go to their parent’s home.
With the legal principles and recent guidance to give some direction, is there a general course that can be taken? The wide range of circumstances make a blanket policy impossible. Firstly, there is the difference between contact during proceedings and after a final order. Whilst proceedings are ongoing, the relationship between the children and parents clearly needs to be maintained and so there is a much stronger reason for prioritising quality contact.
For children in care with severe cognitive processing difficulties, or other issues that prevent the child from interacting via technology, video or telephone contact may never be quality contact. But the balance may shift again if the child, parent, or someone in their household has health issues that make them particularly at risk from COVID-19, requiring video contact for a longer period.
The age of the child is clearly a key factor, with video contact being of limited benefit for young children. Practical considerations will also come into play where the carers, or relatives under an SGO or ICO, cannot exchange phone numbers with the parents for safeguarding reasons.
Local authorities will want to provide policy guidance in order to ensure consistency across their area and compliance with the government lockdown. Whilst the starting point may be that video contact is reasonable in the short term during the most serious lockdown measures, this will need to be frequently reviewed.
Any blanket policy may be the subject of judicial review, but policies should list the relevant considerations for decisions in individual cases. Local authorities will want to maintain a strong dialogue between social workers, team managers and foster carers to ensure each child’s particular circumstances are taken into account.
Parents and their representatives may have to accept that a court is likely to find the temporary shift to video contact is reasonable in the current circumstances. But contact applications under section 34(3) should be seriously considered as time progresses, especially where the only health risk is to the wider public rather than the child or parent themselves.
These are turbulent times for children in care. The course for each child will need to be continually checked and reviewed, and the competing duties of local authorities balanced and rebalanced.
On 3 April 2020, the Department for Education published guidance including advice on contact arrangements for children in care. The guidance highlights the possible “traumatising” consequences of children not seeing relatives and supports the general approach that contact arrangements:
“should be assessed on a case-by-case basis taking into account a range of factors including the government’s social distancing guidance and the needs of the child”.
This makes clear that a blanket policy is not the appropriate way forward and a more nuanced approach is required.
This article was also published in the Local Government Lawyer and you can access the article here.
Mark Smith is a barrister specialising in international family matters. He is also regularly instructed in private children and care proceedings.