D-S (Contact With Children In Care: Covid-19)

During the Covid-19 pandemic, the ordinary principles governing contact with children in care continued to apply. The local authority decided what contact it would allow under Children Act 1989, section 34(1). Where a parent applied to court, the court had to form its own view of the contact that was appropriate, with the child’s welfare as its paramount consideration. It could consider Government guidance, the children’s circumstances and practical pressures on services, but it could not defer to the local authority or give it the benefit of any doubt. The court retained a broad discretion whether to make an order, including under the no-order principle. If the evidence was insufficient, it should obtain further information or adjourn rather than dismissing the application because the authority’s proposal was reasonable.

Three children were living with their maternal grandmother under interim care orders. Before the Covid-19 lockdown, their mother had supervised face-to-face contact three times a week. When contact centres closed, contact became indirect by telephone and video call. The mother applied for an order for renewed direct contact, proposing a socially distanced or household-bubble arrangement in a park with supervision.

On 22 June 2020 the Nottingham Family Court, HHJ Lea, dismissed the application, holding that the indirect contact offered by the local authority was reasonable in the circumstances. Permission to appeal was granted. By the time of the appeal, direct contact had resumed by agreement. The Court of Appeal nevertheless heard the appeal because the issue was of wider importance: whether the court should assess the reasonableness of the authority’s proposal or determine for itself what contact was appropriate.

1. Appeal allowed. The order dismissing the mother’s application was set aside and replaced with an order that there be no order on the application, because direct contact had resumed by agreement.
2. The statutory scheme distinguished between two decisions. Under Children Act 1989, section 34(1), the local authority had to allow reasonable contact and, under Schedule 2, paragraph 15(1), endeavour to promote contact unless that was not reasonably practicable or consistent with the children’s welfare. Under section 34(3), the court could make such contact order as it considered appropriate. The child’s welfare was paramount, the welfare checklist applied, and the no-order principle had to be observed under section 1(1), (3) and (5).
3. The court had to form its own view of what contact was appropriate in all the circumstances. It could attach substantial weight to the local authority’s professional assessment, Government guidance and service pressures, but it could not defer to the authority or give it the benefit of any doubt. It could decline to make an order where the contact offered was broadly equivalent to the contact the court considered appropriate, where an order would reduce flexibility, or where practical constraints made ideal contact unattainable.
4. Here, the judge was entitled to consider fluctuating social-distancing guidance and finite local-authority resources. However, the evidence did not show that face-to-face contact was impossible. The court lacked sufficient information about the children’s situation, the authority’s resources and the current guidance. If the mother’s proposal could not be approved, the judge should have adjourned briefly to obtain better evidence rather than dismissing the application on the ground that the authority’s position was reasonable.
5. The ordinary principles continued to apply during the pandemic, although practical difficulties could affect the level of contact achievable.

• Court of Appeal (Civil Division): Appeal allowed. The Nottingham Family Court’s order was set aside and replaced by an order that there be no order on the application.
• Nottingham Family Court, HHJ Lea: The mother’s application for a contact order was dismissed on 23 June 2020 after the hearing on 22 June 2020.