Children’s rights legal digest – September 2020

This month we share some of the key takeaways from a recent significant Court of Appeal judgment which confirmed that the principles set out in the Children Act 1989 continue to apply and must inform decisions about contact between children in care and their families during the Covid-19 pandemic. We also reference a couple of previous cases that have centred on children and young people’s right to family life to illustrate the interconnectedness between legal entitlements set out in the Children Act 1989 and the human rights protected under the European Convention on Human Rights.    

The Children Act ‘contact principles’ continue to apply during the pandemic

This case concerns family contact between a mother and her three children, aged 7, 3 and 1½, all of whom are looked after under an interim care order. The children are currently living with their maternal grandmother.

Following the closure of contact centres due to Covid-19, direct supervised contact was replaced with unsupervised telephone contact. When the eldest of the children was due to return to school, the mother asked for contact to be reinstated. The local authority opposed this saying that the children were too young to observe social distancing and that government guidance permitted different households to come together only in open spaces while practising social distancing.

The court ordered the local authority to prepare a statement that would address, in respect of each individual child, a number of considerations, including a risk assessment of the health circumstances at the time, direct contact options and “an analysis of the balance of harm in the proposals for contact”. A social worker concluded that the children could not be expected to socially distance and that not being able to act naturally around their mother would be harmful.

In a matter of weeks, government guidance changed to permit ‘social bubbles’ between different households and the mother applied to the Family Court for a contact order offering to form a bubble with the children’s grandmother, and to meet the children under supervision in a park. This application was dismissed on the basis that the contact already provided was “reasonable”. The mother appealed.  

Around the same time, the local authority informed the mother that contact was being reinstated at the contact centre. Despite this, the appeal was heard in recognition of the issue having “wider importance”, especially, as argued by the mother’s lawyer, that “the issue of the local authority’s approach to contact may resurface if (Covid) circumstances change”. In the appeal, the mother’s representative claimed that the Family Court had “approached Section 34 of the Children Act 1989 incorrectly” and that the individual welfare of children had not been the basis of the decision. 

The Court of Appeal stated that “the court must reach its own conclusion and ensure that it has the information it needs to do that. It does not defer to the local authority […]”. Decisions should be made on a case-by-case basis, based on “information about the children’s situation, the local authority’s resources and the current government guidance”.

Most importantly, the Court of Appeal stated that “the ordinary principles governing applications for contact with children in care continue to apply during the Covid-19 pandemic, even though outcomes may well be affected by the practical difficulties [of the pandemic]”. These principles are set out in the Children Act 1989 and state that:

  • Local authorities are under a duty to allow the child reasonable contact with their parents (Section 34(1)).
  • Local authorities must promote contact between the child and their parents unless this is “not reasonably practicable or consistent with (the child’s) welfare (Schedule 2 para. 15 (1)).
  • The child’s welfare must be the court’s paramount consideration (Section 1(1)).
  • The welfare checklist must be followed by the courts (Section 1(3)).
  • No order must be made by the court unless it considers that it would be better for the child than making no order at (the ‘no order principle’) (Section 1(5)). 

You can read the judgment here.

Children in care and the right to family life

In April, we covered a different Court of Appeal case in which the judges found that there is no legal basis to treat children in foster care differently from children who are cared for by their birth families when considering their Article 8 rights. Article 8 of the European Convention on Human Rights (ECHR) guarantees the right to respect for private and family life to every adult and child. Within the same judgment, the Court pointed out that a child does not suddenly cease to have a family life simply because they turn 18.

In February, we shared a judgment which highlighted the importance of independent advocates and independent reviewing officers in safeguarding children and young people’s right to family life, including contact between separated siblings.

Right to family life

Article 8 of the European Convention on Human Rights (ECHR) guarantees everyone’s right to respect for private and family life, home and correspondenceThis is a right that all children and young people enjoy, regardless of their circumstances, and it can be directly called on when advocating on their behalf. The Human Rights Act 1998 places a duty on local authorities and others to act compatibly with the rights in the ECHR.

Article 8 could be most relevant when supporting children and young people who live away from home to maintain relationships with their siblings, parents or other family members. It can be used, for instance, to support children and young people who object to being placed far away from home or those who do not enjoy regular contact with their family because of administrative delays or inaction, as well as those who wish to return home to their families (or do not want to be separated from them in the first place).