In the past few weeks, life as we know it has changed beyond recognition. I was struck by the words of Mr Justice Hayden in BP v Surrey CC and RP [2020] EWCOP 17 :

“It strikes me as redundant of any contrary argument that we are facing “a public emergency” which is “threatening the life of the nation”, to use the phraseology of Article 15. That is not a sentence that I or any other judge of my generation would ever have anticipated writing.”

This grim observation sets the tone to this crisis perfectly.

If we are not ‘key workers’ – heroically stepping out into the fray to protect and sustain our country – we are locked down, able only to leave home for a small dose of daily exercise and to buy essential boxes of 36 Jaffa Cakes (or is that just me?).

Family life is significantly disrupted as a result of the ‘lockdown’, and many children in care will not have seen their parents for a number of weeks. This short article considers the legal position with regard to the duties of local authorities in England to looked-after children and contact, and the interaction between this and the Coronavirus Act 2020 and regulations.

Who is a looked-after child?

A ‘looked-after child’ means a child who is in the care of a local authority. This normally means that a child will fall into one of two categories:

• the child is accommodated under section 20 Children Act 1989, either with a person with parental responsibility authorising their accommodation, or self authorising if they are 16/17 years old, or;
• the child is subject of a Care Order (or Interim Care Order). 

What are a Local Authority’s duties with regard to contact?

Welfare is king when looking at a question of contact.

Paragraph 15(1) of Schedule 2 Children Act 1989 says that where a child is being looked after by a local authority, a local authority MUST, unless it is not reasonable practicable or consistent with his welfare, endeavour to promote contact between the child and his parents, a person who is not a parent but has parental responsibility and any relative (including by marriage or civil partnership), friend or other connected person.

Contact has a wide definition and the CA1989 Guidance (volume 3, chapter 6) details that contact covers all forms of contact from letters, cards and photographs to overnight stays.

Section 34 Children Act 1989 imposes a stronger duty where chidlren are subject to court order, It requires that, if contact arrangements are not agreed between a parent/family member and the authority, contact arrangements must be objectively reasonable (see Re P [1993] 2 FLR 156). There is a duty on the local authority in s.34(1) to promote reasonable contact between a child and their parents or guardian (or special guardian) or anybody who has parental responsibility for the child, or with whom the child lived pursuant to a Child Arrangements Order prior to a Care Order being made (a Care Order automatically discharges a Child Arrangements Order).

The courts haven’t shirked from recognising a very restrictive regime of contact as being ‘reasonable’ – see for example Re C [2009] EWCA Civ 959, although there is no case law as to whether reasonable contact may be restricted to indirect contact only.

For parents, therefore, contact of some level must be offered by a local authority unless:

• the court orders that there should be no contact, or; 
• It is necessary to refuse contact in order to safeguard or promote the child’s welfare, and that this urgent arrangement does not last for more than 7 days.

The Coronavirus Act 2020 does not amend either Section 34 or Para 15 Schedule 2 Children Act 1989. These duties therefore remain.

What does the government say?

Guidance published by the Department for Education on 3 April 2020 says:

“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 some 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 social distancing guidance and the needs of the child. It may not be possible, or appropriate, for the usual face-to-face contact to happen at this time and keeping in touch will, for the most part, need to take place virtually. We expect the spirit of any contact orders made in relation to children in care to be maintained and will look to social workers to determine how best to support those valuable family interactions based on the circumstances of each case.”

What are the practical considerations?

I know from a case I was involved in recently that one local authority has foster carers, more than half of whom are aged 60 or over, with many falling into the ‘vulnerable’ category for the purposes of the public health guidance. I suspect that this authority is not alone and, in a time when there is already a shortage of foster placements, Covid-19 is putting further pressure on the supply of available placements. The reality is that looked-after children may need to self-isolate or shield – for a number of months – with their carers, who are at a heightened risk of contracting the virus. This is an imperative to protect the lives of foster carers, and will feed into any assessment of what is objectively ‘reasonable’.

I have seen some tweets suggesting that in such cases a local authority should be identifying new placements. This seems unrealistic: firstly there is not a glut of placements into which to move children, and secondly the overarching (and perhaps competing) duty of a local authority towards looked after children is to safeguard and promote their welfare – this is rarely achieved by a placement change.

Indeed, I fail to see how it could be said to be ‘reasonable’ to facilitate contact when the life of a child’s primary carer may be compromised by contact taking place, when one considers that for direct contact to occur a child must encounter several potentially contagious people. Hayden J does not underplay the threat above: Covid-19 is “threatening the life of the nation”.

Another consideration is that local authority staff available to arrange, facilitate and supervise contact between children in care and their parents are presently depleted. Many of these staff will not be qualified social workers, but rather support staff or family support workers, who are not deemed to be key workers and must stay at home. In addition, I question how many contact centres are set up to accommodate social distancing, which is an essential measure to protect the lives of all involved. Restrictions on movement and the closing of non-essential businesses are the death knell to any kind of meaningful community based contact. Public health guidance would appear to make this sort of contact impossible.

There is presently a legal obligation on all persons to remain in the place where they live, save if they have a reasonable excuse to leave – see paragraph 6 The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. The regulations contain a non-exhaustive list of examples of what may constitute a reasonable excuse. This list includes the following:

“in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child.”

However whilst this may be permitted by the strict word of the regulations and in some cases possible, the likelihood is that any form of direct contact between parents and children in care at present is unlikely. Any arrangement that compromises the welfare of a child is not a reasonable one.

What can be done?

It is always open to a parent at any time to apply to the Family Court for an order for contact with a child in care. Parliament has given the Courts the power to decide on contact between children and those named in section 34, as Butler-Sloss PLJ (as she then was) reminded us in Re B (Termination of Contact: Paramount Consideration) [1993] Fam 301.

However these are unprecedented times where government and public health guidance recommend staying indoors save for exercise, work and food. It is likely that the courts would view this public health emergency as grounds to interfere with the right of a parent to private and family life and unlikely that any welfare analysis would lead a judge to the conclusion that direct contact should be ordered at this time.

It is too early for any CV19 case law on this, but I recall as an emergency case Re W (A Child) [2013] EWCA Civ 314 where the court made a short s.34(4) order giving permission to a local authority to refuse contact as it was not satisfied that adequate safeguards could be put in place to ensure the safety of the child. It may be said that an equal inability to protect a child from a global pandemic creates an equivalent risk.

Another stumbling block is that courts at present are dealing with ‘urgent’ work only. These are urgent care applications where life, limb and safety are at stake. Would an application for contact with a child in care be considered urgent? Perhaps not. Even if such an order were made, it is nigh unenforceable.

The answer, in my view, must lie in local authorities finding creative ways to facilitate contact between children and parents. The duty, after all, is on the authority. This may be over the telephone, Skype or Facetime. Letters, cards and presents seem to be ‘out’ for hygiene reasons, but they can be replaced by emails and perhaps even MoonPig (other online card retailers are available). Contact will continue to be safe and guided by the children’s needs: the need for contact will never trump this consideration.

This relies on foster carers being able, but as agents of the local authority one would expect them to be able to act consistently with the duties on the authority. Whether this is allowing parents to take part in quizzes or story time, recording video messages to be sent via the social worker to just keep in touch, there are several opportunities during lockdown for a parent to play a safe but meaningful part in the lives of their children. This seems the most sensible way for a local authority to satisfy the duties it continues to owe to the children in their care as their corporate parent.

We’ve included links to as many of the judgments referred to in this blog posts as we can, but a few aren’t available free online due to their age.

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