The Court of Appeal has ruled that the principles allowing parents to have contact with their children who are in care continued to apply during COVID-19, even though it could create practical difficulties for local authorities.

The issue arose after a mother appealed against a decision that face-to-face contact with her three young children should not resume during the pandemic.

An interim care order had been made in favour of the maternal grandmother in respect of the children, aged 1, 3 and 7, after an incident of suspected non-accidental injury.

The mother had supervised contact with the children three times per week at a local authority contact centre. In March, when the country went into lockdown, the contact centres were closed. The children had indirect contact by telephone and video call with the mother, but nothing face-to-face.

The eldest child returned to school in late May and the mother sought the resumption of contact because government guidance indicated that those from different households could meet outside.

The local authority refused to reinstate contact because the children were too young to be able to observe social distancing.

The government guidance changed in June, when “social bubbles” were introduced, allowing two households to meet as if they were one, without social distancing.

The mother again sought the resumption of contact on the basis that she and the grandmother could form a social bubble and meet outside. However, her application for contact was dismissed on the basis that the authority was entitled to have regard to its own resources in terms of the staff available to facilitate contact.

The contact centre reopened in July, and face-to-face contact was resumed once per week.

The mother submitted that even though her appeal had become academic, the issue of the local authority’s approach to contact could re-surface if fresh restrictions were imposed during the pandemic.

She argued that the judge’s approach was wrong because he had fettered his discretion by deferring to the local authority.

The Court of Appeal ruled in her favour. It held that the ordinary principles governing applications for contact with children in care continued to apply during the pandemic, even though outcomes might be affected by the practical difficulties.

For many children in care and for their families, the loss of contact would have been particularly difficult. Where it could be remedied, that should be attempted where possible.

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 child’s best interests.

At the time the judge made his decision, social distancing was not an absolute obstacle to contact.

While the judge was bound to acknowledge the finite resources of the local authority and its need to prioritise, he had been given no evidence about that. The practical challenges might mean that less contact was appropriate than before, but the evidence before the court did not support the conclusion that no face-to-face contact was possible.

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Case Citations: [2020] EWCA Civ 1031RE D-S (CONTACT WITH CHILDREN IN CARE: COVID-19), (2020) CA (Civ Div) (Peter Jackson LJ, Baker LJ, Carr LJ)

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