The Court of Appeal has confirmed that the 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. Hazel Samuriwo outlines the judgment.
The principles confirmed by the Court of Appeal are that whilst the local authority proposals will be given great respect, the duty to decide on contact between the child and those named in CA 1989 s 34 (1) is for the court.
The case of Re D-S  EWCA Civ 1031 was an appeal from the decision of His Honour Judge Lea sitting at Nottingham Family Court by which decision the Judge refused the mother’s application under s 34 (3) of the CA 1989 for face to face contact with her three children, who were in interim local authority care. The Judge agreed with the local authority approach which had referred to the Government guidance prevailing at the time and concluded that the children were too young to be expected to observe social distancing.
The case concerned three children aged 7, 3 and 1½ who were taken into care in September 2019 after the youngest child was found to have a leg fracture considered likely to have been inflicted. The mother was considered to be in the pool of perpetrators. The Final hearing was set for November 2020. In the interim the children were living with their MGM under ICO’s.
Prior to the lockdown, the children had been having contact with their mother three times a week for two hours, supervised by the local authority rather than the MGM because the MGM had expressed doubt about whether mother was capable of causing the injury.
Since lockdown two of the local authority contact centres closed so that the children only had indirect contact by telephone and video call arranged between mother & MGM without supervision. This was not satisfactory, particularly for the younger two children.
Following mother’s request for re-establishment of face to face contact at two hearings in May and June, the local authority confirmed in its position statement dated 3rd June and a subsequent statement dated 12th June that it did not propose face to face contact. The local authority had been directed to address specifically:
- the risk assessment it had undertaken given the current health circumstances,
- the options available to facilitate direct contact and timescales for arranging this,
- an analysis of the balance of harm in the proposals for contact and
- addressing the issues in respect of the individual children.
In refusing to resume direct contact, the local authority referred to the prevailing Guidance that allowed small groups from different households to meet in open spaces with social distancing and stated that the children were too young to be expected to observe the same. It was also stated by the LA that for the children to see their mother without being able to act naturally would be harmful for them and place the mother in an impossible situation. Contact would be kept under review.
However by 13th June Government guidance changed to allow “social bubbles” in which two households could meet with each other exclusively, as if they were one household and without social distancing.
The mother applied for a contact order on 19th June challenging the local authority requirement for social distancing and stating she and her mother were willing to form a ‘bubble’. In a position statement filed on the mother’s behalf it was also suggested that while contact centres were closed, meetings could take place in a local park, professionally supervised, but with the support of the grandmother
The matter was heard remotely by HHJ Lea on 22nd June. Having heard oral arguments, the judge dismissed the mother’s application for reasons he gave in a written judgment handed down following day.
The Judge’s decision
The Judge agreed with the local authority that the contact provided was reasonable in the current circumstances. In his view, regard must be given to the local authority resources, government guidance around issues such as social distancing. Upon considering the interplay between the s 34 (1) which provides that the local authority shall allow reasonable contact, and s 34(3) which provides that on an application made by a parent the Court may make such order as it considers appropriate, he concluded that that the interplay between these subsections means that in practice that the court does not dictate to the local authority what contact should take place between a child in care and its parents providing the contact that is allowed is “reasonable”.
Accordingly the Judge determined that there was no basis upon which the court should make an order under s.34 (3) to compel the local authority to make arrangements for face to face contact.
Following the refusal on 22nd June, the mother applied for permission to appeal, granted on 16th July. By the time the appeal was heard on 17th July, the local authority had in fact resumed face to face contact so the appeal was academic. The Court of Appeal decided to hear the appeal because the issue was one of wide importance.
The mother’s main ground of appeal was that the judge approached s.34 Children Act 1989 (‘CA 1989’) incorrectly and that he fettered himself by deferring to the local authority. As a result, he did not make the individualised welfare decision that was required. He did not give consideration to the mother’s proposals or address the inadequacy of the local authority’s response.
Counsel for the local authority conceded that the social work statement did not deal with the matters that had been ordered. He argued however that the Judge did make a welfare assessment even though there was no explicit reference. He also argued that the judge was entitled to consider that the local authority was best placed to make a decision about what is reasonable contact. As for the statute, counsel for the local authority argued that there is no real difference between the concepts of “reasonable” and “appropriate” contact. The judge was right to say that in practice, the issue is whether the arrangements are reasonable and that, if they are, there is no basis for the court to intervene. Counsel did however accept that his submission amounted to the court affording the local authority a margin of appreciation or, colloquially, giving it the benefit of the doubt.
Counsel for the Children’s Guardian supported the consensus that the local authority’s evidence had not properly addressed the issues. With hindsight, the decision should have been postponed for that information to be gathered. She expressed some sympathy for the legal analysis of s.34 advanced by the local authority.
In allowing the mother’s appeal the Court of Appeal acknowledged the challenges posed by the current pandemic, as noted by HHJ Leas. However the Court of Appeal emphasised that contact arrangements should be assessed on a case by case basis which is the key message of the prevailing guidance from Department of Education, entitled Coronavirus (Covid- 19): Guidance For Children’s Social Care Services
The Court of Appeal noted the statutory framework under s 34 (1) and s 34 (3) on the other hand.
Under s34 (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). (my underline and bold)
Under s34 (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). (my underline and bold)
In rejecting the local authority's submissions, the Court of Appeal explained that:
"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. [See Para 12]
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" [Para 14]
Essentially, the court must make its own conclusion and ensure it has the information [Para 13].
Information needed will include the children’s situation, the local authority resources and in the current climate the current Government guidance [Para 15]. At the time the Judge came to make his decision i.e. 22nd June, social distancing was not an absolute obstacle to contact.
A court may need to adjourn for the local authority to provide evidence [Para 15]. In this case the Judge needed "better evidence" as the SW statement had not adequately addressed the issues.
The result of the appeal confirms that the 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 [Para 17].
So the Court of Appeal allowed the mother’s appeal and set aside the earlier judge’s decision replacing with No Order on the basis that the Court should have adjourned to obtain further information from the local authority, and that face to face could have resumed when the matter was heard on 22nd June as the rules had relaxed.
Whilst local authorities have a duty to propose contact arrangements that are ‘reasonable’ the Court can make order proposals which they consider ‘appropriate’, which may or may not go further than the local authority. The Court of Appeal decision is also a reminder that the ordinary principles governing applications for contact with children in care continue to apply even during the Covid-19 pandemic.
What are those principles? It must be the observations of Butler-Sloss LJ (as she was then) In Re B (Minors) (Termination of Contact: Paramount Consideration).
The proposals of the local authority, based on their appreciation of the best interests of the child, must command the greatest respect and consideration from the court, but Parliament has given to the court, and not to the local authority, the duty to decide on contact between the child and those named in CA 1989 s 34 (1).
In essence when responding to an application for contact under s34, the local authority will need to be prepared to provide full information about resources, any prevailing national or local COVID-19 guidance, the children’s welfare needs, safety and what other measures can be put in place to ensure that contact takes place, if possible and safe to do so.
Hazel Samuriwo is In-House Advocate, London Borough of Brent.