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

Factual and Procedural Background

This appeal arises from a mother's application for contact with her three children, aged 7, 3, and 1, who are in interim local authority care. The children were taken into care in September 2019 after the youngest child was found with a leg fracture likely inflicted by one of the adults in the household, including the mother. The responsibility for the injury was to be determined at a hearing scheduled for November 2020. Meanwhile, the children lived with their maternal grandmother under interim care orders.

Prior to the COVID-19 lockdown in March 2020, the children had supervised face-to-face contact with the mother three times a week. After lockdown, contact was limited to indirect telephone and video calls without supervision. The mother requested re-establishment of face-to-face contact as the eldest child returned to school. The local authority initially declined to reinstate direct contact citing government guidance and concerns about the children’s ability to socially distance. Subsequent government guidance allowed "social bubbles," prompting the mother to apply for a contact order proposing supervised contact in a local park within a "bubble" including the grandmother.

The Children's Guardian was broadly sympathetic to the mother's request. A hearing took place by telephone before Judge Lea on 22 June, who dismissed the mother’s application. The mother was granted permission to appeal. Following the appeal, the local authority resumed supervised face-to-face contact once a week, with indirect contact continuing twice weekly.

Legal Issues Presented

1. Whether the judge erred in deferring to the local authority’s assessment of what constituted reasonable contact under section 34 of the Children Act 1989.
2. Whether the court is required to make an individualised welfare decision on contact applications rather than simply assessing the reasonableness of the local authority’s position.
3. The extent to which government COVID-19 guidance and local authority resource constraints affect the assessment of appropriate contact between children in care and their parents.

Arguments of the Parties

Appellant's Arguments

• The judge incorrectly interpreted section 34 of the Children Act 1989 by deferring to the local authority’s position rather than making an individualised welfare decision.
• The judge failed to consider the mother’s proposals for contact and did not address the inadequacy of the local authority's response.
• The court must independently assess what contact is appropriate, rather than simply determine if the local authority’s arrangements are reasonable.

Local Authority's Arguments

• An individualised assessment of appropriate contact is required, but the judge was entitled to consider the local authority’s position as reasonable in the circumstances.
• The court is not required to investigate management decisions of the local authority.
• The statutory concepts of "reasonable" and "appropriate" contact are effectively aligned, and the judge’s decision to uphold the local authority’s approach was correct.
• The court affords the local authority a margin of appreciation given resource constraints and safeguarding priorities.

Children's Guardian's Arguments

• The local authority’s evidence did not adequately address the issues ordered by the court.
• The decision should have been postponed to allow for proper evidence gathering.
• Expressed some support for the local authority’s legal analysis regarding section 34.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analysed the interplay between section 34(1) and 34(3) of the Children Act 1989, which impose a duty on local authorities to allow reasonable contact between children in care and their parents, and empower the court to make contact orders it considers appropriate. The judge initially concluded that the local authority’s arrangements for contact were reasonable in the context of fluctuating government COVID-19 guidance and limited resources, and thus dismissed the mother’s application.

On appeal, the court clarified that the judge erred by deferring to the local authority’s position without making an independent, individualised welfare assessment as required by statute. The court emphasised that the local authority’s reasonableness is not determinative; the court must itself decide what contact is appropriate with paramount regard to the child’s welfare. The judge failed to obtain sufficient evidence about the children’s circumstances, local authority resources, and government guidance to make that decision. The court acknowledged the practical difficulties posed by the pandemic but held that these do not negate the statutory requirement for an individualised welfare decision. The appeal was allowed, setting aside the earlier dismissal and substituting an order of no order, reflecting the current agreement on contact arrangements.

Holding and Implications

The court’s final decision was to ALLOW THE APPEAL, set aside the judge’s order dismissing the mother’s application, and substitute an order of no order on the application.

This decision confirms that the statutory principles governing contact between children in care and their parents continue to apply during the COVID-19 pandemic. The court must independently assess what contact is appropriate based on the child’s welfare, and cannot simply defer to the local authority’s assessment of reasonableness. While practical difficulties and public health guidance are relevant, they do not relieve the court of its obligation to make an individualised welfare decision. The ruling does not establish new precedent but clarifies the application of existing law in the context of pandemic-related restrictions. The direct effect is to require courts and local authorities to provide adequate evidence and consider individual circumstances when determining contact arrangements.