How, if at all, is the duty of local authorities to allow children in their care reasonable contact with their parents affected by social distancing rules arising from the COVID-19 pandemic? The Court of Appeal confronted that issue in a guideline case.
The case concerned three young children who were taken into interim care after one of them suffered a broken leg, an injury which was considered likely to have been inflicted. The mother was in the pool of potential perpetrators and the children were therefore taken from her care and sent to live with their maternal grandmother.
Until lockdown was announced in March 2020, the children had face-to-face contact with their mother three times a week. As the pandemic took hold, however, the council's contact centres were shut down and the mother's only contact with her children became indirect, via telephone and video calls.
The council took the view that direct contact could not be managed in a safe manner in that the children were too young to be expected to socially distance themselves from their mother. It persisted in refusing direct contact after lockdown rules were changed so as to permit 'social bubbles' in which two households could meet with each other exclusively as if they were one household.
The mother applied for a contact order on the basis that professionally supervised face-to-face meetings could take place between her and the children in a local park. Her application was rejected by a judge, who noted that, in such unprecedented times, it was difficult to assess what level of contact would be 'reasonable' within the meaning of Section 34(1) of the Children Act 1989.
The judge expressed enormous sympathy for parents whose contact with their children was restricted during the pandemic. Their situation was similar to that of patients dying in hospital being denied visits from friends and family, grandparents being unable to hug their grandchildren and mourners being prevented from attending loved ones' funerals.
Amidst the unprecedented crisis, however, he found that the council was entitled to have regard to its depleted human and other resources. There was nothing so unusual about the mother's case to justify an exception being made to the council's policy, whilst lockdown continued, of permitting only indirect contact between parents and children in care.
Ruling on the mother's appeal against that outcome, the Court noted that the local authority had recently agreed to a resumption of face-to-face contact once a week. That rendered the case academic in practical terms, but the Court nevertheless heard the appeal on the basis that it raised issues of wider importance.
Upholding the mother's appeal, the Court observed that, by the time the judge came to make his decision, social distancing was no longer an absolute obstacle to face-to-face contact between her and her children. The evidence did not support his conclusion that no direct contact at all was possible.
Giving guidance for the future, the Court emphasised that contact arrangements must be considered on a case-by-case basis with the welfare of children always treated as the paramount consideration. There was no doubt that face-to-face contact would be in the children's best interests if it could be achieved. Rather than deferring to the council's policy on the basis that it was reasonable, the judge was required to form his own view as to what level of contact was appropriate.
The Court concluded that the ordinary principles governing applications for contact with children in care continue to apply during the pandemic, even though outcomes may well be affected by the practical difficulties that are being faced.