Contact Duties and Guidance in Public Children Law Cases

Hello. Welcome, everybody. I'm very pleased to welcome you to today's by secession through data law When I'm softer. Mahmoud, I Miss Lister, author on electro Now, despite size session is one way I'm going to be taking you through understanding contact duties, Andi, Guidance in relation to that in public Children look cases, Andi, It's very important to recognize this because there is sometimes confusion amongst practitioners as to what the duties are at the local thought. He always in a typical care case, for example, what can they do? What can they not do? What they expected to do when it comes to child contact on. Therefore, I'm going to be taking you through the duties on also some case law. Insofar as things is concerned with a view to answering some of the questions that you may have, Onda, we're looking at this as of October 2020 right? So what I want to start with then is first and foremost D position with the actual duty, particularly when you've got Children in care. So we're gonna start with section 34 subsection one of the Children activated nine on this provides that where the child is in killed a local authorities. Well looking at a case where child is subject to an interim care order or subject to a four care order, then subject of provisions of this section and also the duty under Section 22 3 A of the Children Act, which the duty to safeguard and promote the child's welfare so subject to, uh that due to the same kind of promote the child's welfare and also the provision under this, the local authorities shall allow it says, reasonable contact between the child and amongst other people. The child's parents, on in particular, emphasize on my Godfather because sometimes lawyers forget the fact that when we're looking at contact between a child and a parent, it doesn't matter whether the father or the mother, for that matter, do or do not have parental responsibility. For the child, the duty remains the same, so therefore it is to allow reasonable contact between the child on the child's parent on also any legal guardian of the child. So if they were the other guardian appointed for them, then again the same day he applies there on thirdly, somebody who had the benefit of what was previously known as a residence order. Now, of course, a child arrangements order specifying Living With with respect your child before the care order interim care orders made in his favor. That order was so, for example, if, say, the grandmother had the benefit of a child. Arrangements especially find living with order and then that was substituted with interim care order. There, after the duty also applies to her under Section 34 1 on Finally Way. Immediately before the care order was made, a person had to care of the chance by virtue of off the court's inherent jurisdiction. So you're looking at effectively if the child was subject to a ward of court in those situations. So you can see here principally looking at the child's parents, the duty when the child is in K under Section 34 under an interim care order, a care order to duties under section 34 1. And that is to permit and to allow reasonable contact. And we'll look at really what we mean by that shortly Now we then need to look at the next provision, which is scheduled to paragraph 15 subsection uh, one of the Children And so this is scheduled to paragraph 15, uh, subsection one of the Children Act, where the local thought he also has a duty and the judge to paragraph 15 it relation to his general duty in relation to Children they are looking after, which includes a child, therefore has looked after, uh, to promote contact between a child and amongst other people unless it's not reasonably practicable or consistent with a child's welfare. Now, even though the child's parents feature here at the main person here tends to be the third one here, which is basically any parent, any friend or other person connected with the child. So that tends to be the main person persons that we're looking at here, basically a connected person. So putting it simply if a child subject to an interim care order, for example, then their duty under schedule two paragraph 15 is for the duty to promote contact between the child and the grandmother, for example, in those circumstances, unless one could be satisfied, it's not reasonably practicable or it's not consistent with a chance of welfare. Yeah, okay, so that's the thinking behind us now. What would then happen in a situation, say where we have got grand parents, for example, so they ordinarily wouldn't come under section 34 11. In most cases, they obviously wouldn't be the child's parents. They may not have the benefit of a child. Arrangements living in the order order the warship vision, or they may not have been appointed as a Children's guardian. So they may not come under 34 1, in which case the duty towards them when the child is looked after would be there for the shed. Your two paragraph 15, this duty to promote contact between a child on them. Now let's just pause there for a minute, then. So what do we mean by reasonable contact? Well, it's not defined in the Children act what we mean by Breeze number. But of course, the case law over the years has looked at what is reasonable by being judged by the particular circumstances. So, for example, first and foremost, if the child is removed from parental care and placed in elsewhere, and of course, that's because the threshold, um at the threshold cried here so that child is judged up, having it suffered, always like to suffer significant harm so there is an element of risk. Of course, that's what a child has that to be removed in the first instance so that courts be satisfied that this child safety demands continue immediate separation. So therefore the risk factor has to be weighed up. What level of risk is poster child to ensure that their safety is maintained when it comes to facilitating contact? You don't have to look at other factors in looking at what's reasonable. For example, what the which is the feelings of the parents? Uh, in the circumstances, what's the wishes and feelings of the child considered in light of their age and the understanding? For example, what's the which the feelings of other family members of the relatives? In the circumstances? Wonder needs toe. Also look at the K plan. What's the plan for this child? If, for example, local authority have carried out numerous assessments, none of which have been challenged on the parents have been ruled out as potential carers and in fact, there's no viable family options that have all been considered and ruled out on a local authority off the singer. A single track plan for adoption have already been to the agency decision maker who has approved that plan. Then, of course, the contact that made and be provided in that situation may be less than what would be the case if the local authority we're working towards rehabilitation, for example. So hence you gonna look the care plan for the child in looking at what the what the frequency duration of contact is on. Of course, there needs to be other factors taken into account. Practicality is important in terms of the practical resources available to facilitate that contact. So therefore, there's no kind of set formal in terms of what is reasonable. It's famous, judged by the particular circumstances off that case. At that point on DATs what's important. That's what we're gonna look at shortly when I take you through a more recent case, particularly with the covered 19 pandemic that we're currently under. Now the court can make on order of its own initiative so they can make an order under 34 4. If if appropriate on define application under 34 is refused, no further application can be made for a period of six months or less permission, but a court is given so that's pursuant to Section 91. 17 of the Children actually got a six month through there. The court doesn't have the power to make, nor that there should be no contact. So unlike in private law, where you'll be away, that there is the provision which permits for there to be in order for no contact in private law proceedings, we don't have the same in public law in that regard. So we w made that very clear this 2000 case. But what can happen, of course, is the court can then give permission to local authority to refuse contact. And that's that's really where we've got to. We've got to look at that. So let's say I was acting for grandmother and she's not a party to proceedings. But she is seeking to have contact with her grandson or her granddaughter, so she's seeking permission to have contact with a child in care. Now. She would require leave of the court in those instances. To make an application on the leave test is very much akin to what you would have if she was seeking to leave to apply for Section eight order. So the test would be under Section 10, subsection nine of the Children Act on. Therefore, the court would be looking at, for example, her bond with a child. Her connection her multi if applying for contact with a child in care. Therefore, also the factors which would have to be wide up. Let's now look at the other duty in relation to the position with contact, and what I'm looking at here is, what if the local authority it on themselves wished to refuse contact between a child and a parent? As I mentioned, you can't in public law get orders for there to be no contact that we W cases emphasized that. But you can get orders permitting the local authority to refuse contact. So it is a permissive order, which means it doesn't mean they have to stop contact. They are authorized to do so. What a criteria for this. And what kind of factors would you have? Where this may come into play? Well, first and foremost, this section 34 6. This is where the local authority doesn't need to apply to. Of course, they have this authority anyway. Under 34 6, as long as it's of course exercise reasonably and justly. And this is where by the local authority may refuse to allow contact between certain categories of people, such as those under Section 34 11 34 1 that we looked at. If first and foremost the local authorities satisfied, it's necessary to do so to safeguard or promote the child's welfare. That's the first test, and secondly, this refusal is decided one as a matter of urgency on secondly, provided it does not last more than seven days. Okay, so this could be a situation whereby D child is subject to interim care. Order is having face to face contact with the parents, say, twice a week at a family center. I know it's very difficult at the moment with with Colvin, 19 and not many family centers of contact centers are able to facilitate that Belisa contact was taking place and say, doing that Contact, uh, the child makes an allegation against the parent or the child is upset by the behavior of the parent in such a way that it's felt that that contact needs to be stopped in an emergency to safeguard and promote the child's welfare. That's where the local authority can therefore do so. But, like I say these for maximum period off seven days and that's what you need to bear in mind. What if they wish to, in fact, continue to refuse that contact on this is where we then need to look at the use off section 34 4 of the Children Act. So this is where the local authority would then be seeking that permission that I mentioned seeking permission to refuse contact between a child on the parent of those circumstances, like sites of permissive order. State doesn't mean that they must stop contact. They do have the discretion. However, to do so, local authority can apply, the child can apply as providers have got sufficient level of understanding. And they are instructor lawyer for an order which therefore authorizes permission to refuse to contact between the child on the person's mentioned, which ordinarily would be those under Section 34 subsection one off the Children Act. So this could be a situation where, for example, the local authorities of the view that day may have utilized Section 34 6. Contact needs to continue to be terminated in these circumstances or suspended for a period of time. It's going to be more than seven days on their forgetting that authority to do so. Of course, on that's where they would then be best advice to make this application in the 34 4. So it's to be given that authority to refuse that contact in the circumstances. So that's where 34 4 applications coming. Now, this is where that I wanted to pull this together by this recent case that we've got. This was handed down just recently as a result, off the covered 19 crisis that we currently find ourselves in in 2020 on. This was a case off DS Discord appeal decision handed down just recently. On the fourth of August 2020 leading judgment was handed down by Lord Justice Jackson on the issue. Was this as you all appreciate because off the lock down that we had from the beginning of March in 2020 matters, of course, changed considerably on what happened. Try to the lock down a crossing the wells. My mother had been having contact with her Children who were subject to interim care order. There were age 1.5 3 and seven on the contact she had been having until locked down in March. 2020 was, in fact, three times a week, where the contact was where she would meet, uh, to see the Children who were living with their grandmother. The contact would be three times a week for two hours on each occasion. Andi, it would be supervised. So that was typical. As you know, many of these cases where the contact was taking place on a supervised basis, but because of the lock down. And of course, because of the social distancing restrictions in particular, uh, contact centers pretty much closed in many areas on it was not permissible to have that certainly face to face contact. So the contact moved to indirect by telephone and video cause arranged between the grandmother and the mother with Nazi profession. It was felt that for the Children, this wasn't very satisfactory former contact. But, of course, take into account the government guidance. This'll was the most that could be offered on facilitated in the circumstances. Then things, of course, moved on because, as you'll appreciate over the course off the last six months since March, things have moved on. We've had Mawr social distancing restrictions lifted and therefore because of that, uh, inevitably, we were going to be having cases where people were then going to be seeking mawr contact in the in the face of direct face to face contact. So then there was a hearing case manager here in 20 years and May 28th, May of 2020 whereby the mother so that as matters were progressing, the oldest chart was now beginning to return to school. Mother sought for the contact proposal, brought a local authority to change to now facilitate face to face, and you can see the the thinking behind that local authority would review that. It did not see two in state that face to face contact to refer to the government guidance of that stage, which in England allowed small groups from different households to meet in open spaces with social distancing. But it was felt that the Children were too young to really observe. Social distancing in that regard in that day wouldn't really appreciate the need. The importance of this on, therefore, would pretend by having that face to face contact would potentially put them on others at risk. So the local authority took the view that this could not be facilitated. Do not think then, as you'd be aware, of course, things moved on even further. Uh, then we had the government guidance even further. On the 13th of June, the guidance changed to allow social bubbles in which to households could them each a zit thought they were. One has hold on without social distance, things that came into effect. That's where because the local authority were not able. Thio facilitate. That's her contact. 19th of June of 2020 Mother and Lodges an application for contact Thio Children who were in care. Uh, she challenged the requirement for social distancing station that she and her mother were willing to form this bubble, which the government guidance was permitting to happen. Sort of hearing did take place on Mother's application was dismissed, which then led to her appealing on this is we on appeal? The court then took the opportunity to look at what the current law says in relation to contact and also the position with the government guidance. So, firstly, we've got section 34 1, which, as I mentioned earlier, is subject to do to save kind of promote the child's welfare. The local authorities shall allow reasonable contact between the child and amongst other people that child's parents. So that provision there, we've also got then section 34 3. Now this is where in this case, there was an application by the mother. So she can in fact, applies the parent to invite the court to make such order as it considers appropriate respected contact so effectively she was asking for a defined order to be made. So I would suggest that this is the equivalent off a Section eight child arrangements specifying spending time with otherwise living with order but in the public arena. So this is what mother was asking for defined order under 34 3 on. The judge did say that the court had enormous sympathy for parents. We contact with their Children in care was being restricted to only indirect assay, given the circumstances here. So where was the court to go with this? Or this is where the court said that the court would allow the appeal on the judge's order dismissing mothers application would be set aside. The court referred to the guidance on the dfe in England entitled Coronavirus covered 19 Guidance for Children social care on in particular, the guidance in there, which is effectively providing for the fact that the spirit of the orders do does need to be maintained. And of course, what level frequency duration of contact is has to be such that it needs to be in the child's best interests. And one has to look at what can be done in that case, bearing in mind the need for social distancing and reducing the risk of infection. So with that in mind, what the court appeal decided was this, they said that they would expect the contact between the child and Kay and their birth parents to continue. It was essential for Children. Families to remain in touch at this difficult time to consequences were, of course, very traumatizing, not just for Children, but indeed for parents. On therefore, contact arrangements should be assessed on a case by case basis, taking into account a range of factors, including the currents. The government's current social distance and guidance on before the Court of Appeal emphasized what was set out within the uh the Dfe Department of Education government guidance, which is the spirit of court ordered contact orders needs to be maintained. So it's very important. Therefore, this case has emphasized that each case has to be looked at on a case by case and therefore one has to look the feasibility, the appropriateness and the possibility off that contact moving to face to face bearing in mind that these factors on therefore disappear does confirm that the principles governing applications, uh in K will continue to apply to the Cover 19 Pandemic Onda. Of course, London has to look at the practical difficulties faced with that so you can see it's a very important case and no doubt, as the crisis with the pandemic continues, uh, would cases such as this one will form very essential guidance going forward for all parties concerned. Okay, so you can see today I've spent a favorite of time with you going through some of the key elements off duties in relation to contact. We have to look at Section 34 1 34 3 particularly. We have to look at schedule two paragraph 15. We had a look at the provision for terminating contact on emergency foot by using section 34 6 on and also applications to be permitted to refuse contact on the 34 4 on some of the leading recent authorities on that. I hope this has been a useful session for you cannot thank you very much indeed for listening. Onda, speak to you next time. Thank you very much indeed. Bye for now.