Faced by the uncertainty of the coronavirus pandemic, local authorities reacted by closing contact centres, resulting in the suspension of face-to-face contact between children in their care and parents. They have offered other means of contact but reluctance to re-instate face-to-face contact has raised concerns over the detrimental effect on the children.
Position in Law
For a child under a Care Order, the local authority shares parental responsibility for the child and under the statutory provision of the Children Act 1989 Section 34 (1) “Where a child is in the care of a local authority, the authority shall…allow the child reasonable contact with – (a) his parent”
“Reasonable contact” is subjective especially during current times with the global pandemic. Local authority resources are constrained and their use must be prioritised when the issue of safeguarding arises.
However, local authorities have been found to be indefinitely suspending face-to-face contact and instead providing contact over video link or telephone. Undoubtedly, faced with uncertainty at the start of the pandemic the thinking was that this was a necessary precaution to protect the welfare of vulnerable children. The potential safeguarding concern was the risk of the virus spreading quickly among anyone attending the contact centre.
The local authority does have the power to temporarily suspend contact under Section 34 (6) “An authority may refuse to allow the contact that would otherwise be required by virtue of subsection (1) or an order under this section if – (a) they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.” Furthermore 34 (6) continues, “the refusal: (i) is decided upon a matter of urgency; and (ii) does not last for more than seven day”.
The government’s ‘Stay at home: guidance’ advises if you experience symptoms of COVID-19 you must self-isolate for at least ten days from when your symptoms started. If you live with others, you and all other household members must stay at home and not leave the house for 14 days starting from when the first person in the household becomes ill.
The government guidance appears to make it unreliable for a local authority to use their powers under section 34 (6) to postpone indefinitely face-to-face contact due to concerns the child may contract COVID-19 since the government guidance states minimum isolation of ten days and refusal under Section 34 (6) must not exceed seven days.
However, throughout Section 34 a definition of contact is not provided, leaving individuals to interpret as they wish. Contact could in fact be video link during the pandemic and courts and business have started utilising video link to great effect. More traditional methods can be used such as letters, exchange of photographs etc. This lack of a clear definition allows the local authority to continue to facilitate contact through different means and methods without formally breaching their responsibility under Section 34 (1).
Highlighted in a recent (4th August 2020) Court of Appeal judgment in Re D-S (Contact with Children in Care: Covid-19) “there is no doubt that face to face contact would be in the children’s interests if it could be achieved”. Government guidance also acknowledges that face-to-face contact is the ideal form of contact: “…some young children may not be able to benefit from virtual contact with their family…local authorities should work with families to identify ways to have safe face-to-face interactions”.
The Children and Family Court Advisory and Support Service (CAFCASS) from the 20th March shut down all its offices to the public and planned to re-open 17 CAFCASS offices by the 27th July to allow their Family Court Advisers to safely meet with children. The chief executive explained they have been “seeing children remotely…for some this is their preferred means of engaging” with the service. “For others however, in-person contact is necessary…to understand their lives, relationships, joy and worries.” They go on further stating that “for some children it is safer…and in their best interests for us (CAFCASS) to see them in-person.”
Local authorities have a wide range of responsibilities not just to facilitate contact but also responsibilities for its staff, foster carers and the wider public.
Given the time that has elapsed since the start of the pandemic, local authorities have had an appropriate amount of time to prepare themselves, staff and foster carers to comply with government guidance. The National Association of Child Contact Centres as of 22nd June 2020 also approved centres to “re-open their services” and provided a checklist to contact centres to help ensure they protect not just the child’s wellbeing but anyone attending the facility.
The government further introduced ‘support bubbles’ on 23rd June 2020 which help individuals who have been excluded from meeting with others from different households. Those who are inside a support bubble form one household collectively, resulting in them not having to socially distance from one another. A bubble could be formed between parents and foster carer allowing the parents to have direct contact with the child without the need to social distance.
Any further delay to face-to-face contact will have damaging long-term consequences to any child in local authority care. The welfare of the child and protecting the child from COVID-19 is a valid reason to suspend contact. Nevertheless, the lack of willingness to resume face-to-face contact by some local authorities is seen as detrimental to important early stages of parent(s) and child bonding.
Author Robert Weighill is a caseworker in the family and child care department at Duncan Lewis Solicitors. He is based in the firm’s Manchester office where he works under the supervision of director Meena Kumari. Robert has experience in handling family law cases involving children, domestic abuse, injunctions and divorce matters.
Contact Robert on 020 7275 2798 or at RobertW@duncanlewis.com
Contact Meena on 0192 466 4548 or at Meenaku@duncanlewis.com