LAW: CONTACT FOR LOOKED AFTER CHILDREN DURING THE CORONAVIRUS PANDEMIC
27 Apr 2020
James Presland, with a broad practice in family and social welfare law, reviews recent developments regarding contact with children looked after by local authorities under care orders or accommodation agreements during the present heath emergency. The initial notes concerning government and court guidance are followed by a summary of the applicable legal framework, with links to a range of resources.
Recent Coronavirus guidance
The key guidance providing for social isolation (29 March 2020 at https://www.gov.uk/government/publications/full-guidance-on-staying-at-home-and-away-from-others/full-guidance-on-staying-at-home-and-away-from-others) says:
“Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”
That is guidance as to what is a reasonable excuse to be out of one’s home. (For useful information about when we can and cannot be out and about, see Stephen Knight’s Covid-19 Legal Mythbuster at https://onepumpcourt.co.uk/news/covid-19-legal-mythbuster/)
Dealing with Child Arrangements Orders, the President’s guidance (24 March 2020 at https://www.judiciary.uk/announcements/coronavirus-crisis-guidance-on-compliance-with-family-court-child-arrangement-orders/) says:
“The decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.”
While not dealing with looked after children (who are subject to care orders under section 31 or 38, or accommodated under section 20 of the Children Act 1989), this must indicate an appropriate approach.
CAFCASS have also provided helpful guidance for children and families, including advice on effective co-parenting and child arrangements (https://www.cafcass.gov.uk/grown-ups/parents-and-carers/covid-19-guidance-for-children-and-families/).
As is set out below, a local authority still has a duty to comply with its obligations to promote contact with parents and others, set out below, and to apply promptly under section 34(4) of the Children Act 1989 if contact is to be suspended.
Guidance for local authorities and children’s social care services is at https://www.gov.uk/government/publications/coronavirus-covid-19-guidance-for-childrens-social-care-services/coronavirus-covid-19-guidance-for-local-authorities-on-childrens-social-care. This 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.”
There is particular Government Covid-19 “Guidance for parents and carers on supporting children and young people’s mental health and wellbeing during the coronavirus (COVID-19) pandemic” issued on 21 April 2020 at https://www.gov.uk/government/publications/covid-19-guidance-on-supporting-children-and-young-peoples-mental-health-and-wellbeing/guidance-for-parents-and-carers-on-supporting-children-and-young-peoples-mental-health-and-wellbeing-during-the-coronavirus-covid-19-outbreak which may also be helpful. It covers a range of conditions and age groups.
Legal Background:
General duty to looked after children
The general duty of a local authority to safeguard and promote the welfare of looked after children is set out in section 22 of the 1989 Act. Subsection (4) establishes that:
“Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of:
(a) the child;
(b) his parents;
(c) any person who is not a parent of his but who has parental responsibility for him; and
(d) any other person whose wishes and feelings the authority consider to be relevant,
regarding the matter to be decided.”
Contact
Statutory Guidance issued under the 1989 Act Children Act 1989 Guidance and Regulations, Volume 1: Court Orders (2014) provides at chapter 3, para 32:
“Where a child has been placed outside the wider family, regular contact with family and friends will usually be an important part of a child’s upbringing in his/her new environment.”
(https://www.gov.uk/government/publications/children-act-1989-court-orders–2)
The duty of a local authority to promote contact (it “shall” do so) between a looked after child and his or her parents, others with parental responsibility, and any relative friend or other person connected with him is subject to the proviso that this is unless it is not
- “reasonably practical”, or
- “consistent with the child’s welfare (Sch 2, para 15(1) of the 1989 Act).
There is specific provision by section 34(1) of the 1989 Act for a child in the care of a local authority (under a care order under section 31 or an interim care order under section 38) for the authority to allow the child “reasonable contact” with
- The child’s parents
- Any guardian or special guardian
- Any person with parental responsibility
- Any person named as a person with whom the child should live in a child arrangements order in force immediately before the care order was made
- Any person who had care of the child by virtue of an order made in the exercise of the High Court’s inherent jurisdiction immediately before the care order was made.
The section then provides for orders to be made on the application of the child, the local authority or one of those named above, including by subsection (4) an order authorising the refusal of contact with a named individual. Such an order disapplies the obligation under paragraph 15 of Sch 2 in respect of that person.
By subsection (6) the local authority may refuse to allow contact which would otherwise be required under the section if satisfied (a) that is necessary to safeguard or promote the child’s welfare and (b) the refusal is decided as a matter of urgency and “does not last for more than seven days”. That is meant to allow time for an application to be made under section 34(4).
Protecting the public
Of potential significance where a child may be infected by coronavirus, is subsection 22(6):
“ If it appears to a local authority that it is necessary, for the purpose of protecting members of the public from serious injury, to exercise their powers with respect to a child whom they are looking after in a manner which may not be consistent with their duties under this section, they may do so.”
A similar provision is made under subsections (7) and (8) where the Secretary of State has given directions to a local authority with respect to a looked after child for the purpose of protecting the public from serious injury. Such a direction must be complied with, irrespective of the other provisions of section 22.
Financial support for contact
Sch 2, para 16(2) of the 1989 Act provides that where it appears to the local authority that the circumstances warrant the payment and it appears that the visit could not be made without undue financial hardship, then, to facilitate the contact between a child and his parents, any person with parental responsibility or any relative or person connected with him, a local authority may make payments in respect of travelling, subsistence, or other expenses occurred in their visiting, or in the child visiting them.
Complaints, IROs and Visitors
The complaints procedure under section 26(3) of the 1989 Act may become all the more important – see https://www.gov.uk/government/publications/childrens-social-care-getting-the-best-from-complaints . Local authorities will have details of local procedures on their websites.
All children subject to an interim care order must have an Independent Reviewing Officer (IRO) appointed to them before the first review of the care plan. The IRO must ensure contact is considered at Looked After Child Reviews, and could be notified of concerns which have arisen. (See the Statutory Guidance at https://www.gov.uk/government/publications/independent-reviewing-officers-handbook for more information)
And bear in mind the too often overlooked duty to appoint a visitor for a looked after child where
- communication between the child and a parent of his or any person with parental responsibility has been infrequent; or
- he has not visited or been visited by (or lived with) any such person during the preceding 12 months, and
- the local authority conclude (in Wednesbury reasonable terms) that it would be in the child’s best interests for an independent person to be appointed to be his visitor.
The formal appointment gives the visitor a statutory duty of ‘visiting, advising and befriending the child’. (See section 23ZB and Sch 2 , para 17 of the 1989 Act).
Any potential challenge to a children’s services decision about contact, or the care of a looked after child is likely t be assisted by a Subject Access Request under the GDPR, for a very modest charge – see the local authority’s website for how to apply (and there is some helpful general advice at https://childlawadvice.org.uk/information-pages/access-to-information/)
The effect of “guidance”
Sch 12, para 18 of the Coronavirus Act 2020 expressly empowers the Secretary of State to issue guidance as to how local authorities are to exercise functions in consequence of the provision made by Part 1 of the schedule —
(a) under Part 1 of the Children Act 2014 (which primarily deals with adoption and contact, but by section 8 made some changes to section 34 of the 1989 Act, taken account of above);
(b) under section 2 of the Chronically Sick and Disabled Persons Act 1970 (provision of services for disabled people); and
(c) under section 17 of the Children Act 1989 (assistance for children in need and their families).
These provisions do not bear further on the current questions of contact with a looked after child. In relation to them, a local authority
- must have regard to any guidance issued under para 18,
- must comply with such guidance issued under this paragraph as the Secretary of State directs; and
- may disregard any guidance under section 7 of the Local Authority Social Services Act 1970 or section 78 of CA 2014, so far as it is inconsistent with guidance issued under para 18.
None of the present raft of central government Covid-19 guidance seems to say on its face it is “statutory guidance” which must be followed – this is a regrettable commonplace and a source of confusions with guidance across many areas of social welfare law. But even where government issued guidance is not “statutory” – issued under a power provided expressly by primary legislation, any departure from what otherwise is “practice guidance” must be justified.
As to the effect of “statutory guidance” the classic exposition remains that of Sedley J in R v Islington ex p Rixon (1998) 1 CCLR 119, where he held
“…in my view Parliament by s.7(1) [of the Local Authority Social Services Act 1970] has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.”
Guidance which is either expressly not statutory guidance, or is silent about what it is, is generally termed “practice guidance” – In Rixon Sedley J also considered the effect of Care Management and Assessment – ‘practice guidance’ issued to local authorities by the by the Department of Health. He concluded:
“While such guidance lacks the status accorded by section 7 of the Act of 1970, it is, as I have said, something to which regard must be had in carrying out the statutory functions. While the occasional lacuna would not furnish evidence of such a disregard, the series of lacunae which I have mentioned does, in my view, suggest that the statutory guidance has been overlooked.”
Court Guidance may be expected to be followed. Where guidance is issued by the President, all family Court judges should apply what is provided for. Guidance such as that given by Williams J in Padero-Mernagh [2020] EWFC 27 as to the practice to be applied to remote hearings, may have the force of precedent, but in any event can be expected to be followed by Circuit and District Judges, and by High Court Judges, unless they have a particular reason to differ. Other provisions may be made by formal changes to the Family Court Rules – but this is rarely a hasty process.
Guidance which does not issue from Government, but from other bodies, such as CAFCASS, may represent their view as to good practice, and may be influential as to what approach a court might follow. But it is not binding on any court or litigant on its own.
24 April 2020
We will try to update this note to reflect changes. Please feel free to contact me with any caselaw developments.
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