Covid-19 – What is ‘reasonable’ contact ?

Re D-S (Contact with Children in Care: Covid-19) [2020] EWCA Civ 1031

This case concerned an appeal arising from a mother’s application for contact with her 3 children who were 7, 3 and 1 ½ years of age and in interim Local Authority care due to ongoing care proceedings.

An interim care order was made to the Local Authority, Nottingham City Council, in September 2019.  Until March 2020 and the materialisation of covid-19 the Local Authority were allowing reasonable direct contact under section 34(1) Children Act 1989 with the children’s mother in a contact centre. Thereafter the Local Authority were facilitating indirect contact via video and telephone but given the ages of the younger 2 children this was an unsatisfactory form of contact.

As a result the mother expressed her concerns regarding her contact at 2 Hearings in late May 2020 and early June 2020 respectively, over 2 months covid-19 lockdown. The Local Authority filed statements following both Hearings, as directed by the Court, addressing the mother’s contact.  The Local Authority in these statements did not propose any direct contact because the children could not be expected to socially distance themselves from their mother.

Lockdown measures began to ease with a change in government guidelines to allow ‘social bubbles’ from 2 households but contact was not reviewed and the mother applied for a contact order on 19th June 2020. The mother’s argument was that she would form a ‘social bubble’ with her children and contact could also be professionally supervised in open spaces such as a local park whilst contact centres remained closed.  This application was dismissed at a telephone Hearing on 22nd June 2020. The Judgement citing that in practice 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”. What is reasonable is regularly changing during covid-19 and reasonableness should also factor in a Local Authority’s resources to facilitate face to face contact during covid-19 given the number of safeguarding that may arise e.g. social workers having to self-isolate.

The mother appealed this decision on 16th July and on 17th July was granted face to face contact by the Local Authority. The appeal was therefore academic but was still heard as a matter of wider importance.

At the appeal it was determined 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. Once the Court has formed its own view it has a broad discretion as to whether or not to make a contact order. 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.

The appeal confirmed that the ordinary principles governing applications for contact with children in care continue to apply during the covid-19 pandemic, however outcomes may well be affected by the practical difficulties that are being faced. As a result there will be inconsistency in the frequency and nature of contact a parent, other family members and anyone who holds parental responsibility has with children in interim Local Authority care.

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