Court of Appeal finds Family Court’s direction to continue face-to-face contact between a young child and her mother failed to consider the child’s welfare and needs
The judgment concerns an appeal by a local authority against a decision of the Family Court made as part of ongoing public law proceedings under Part IV of the Children Act 1989.
Please note: The summary below focuses exclusively on the analysis by the Court of Appeal of the child’s welfare in decision-making about contact arrangements. It does not cover another aspect of the Court of Appeal’s decision, namely whether or not the Family Court had made an order requiring the local authority to make contact arrangements.
Background
This decision concerns a 3½ year-old girl referred to in the judgment as T.
In January 2024, T’s mother and her former partner were arrested and interviewed under caution in connection with suspected sexual abuse of T some months earlier. Following a short period on remand, T’s mother was released on conditional bail, with one of the conditions being no contact with T unless ordered by the Family Court. T’s mother and her former partner were charged with three offences under the Sexual Offences Act 2003, the Protection of Children Act 1978 and the Criminal Justice Act 1988. While T’s mother is due to stand trial in relation to the alleged offences, her former partner has pleaded guilty and awaits sentencing.
Initially, T was accommodated with a family member under section 20 Children Act 1989 with the agreement of her mother but, shortly after, in early February 2024, the local authority issued an application for a care order for T. An interim care order was made later that month.
The local authority had not taken any steps to facilitate any contact between T and her mother, explaining later that it felt it could not go behind the bail condition that any contact required authorisation by the Family Court.
During the interim care order hearing, the Family Court expressed concern about the lack of contact between T and her mother and directed the local authority to facilitate supervised time together around three times per week. In response, the local authority confirmed that a supervised video call between T and her mother would take place in early March 2024 and that direct contact would commence shortly after. The local authority also confirmed it would continue to actively review the contact arrangements.
In accordance with the agreed contact plan, T was “prepared for contact” and had a video call with her mother in early March 2024 as planned. The local authority considered this contact “not successful”, with T being described as scared and tearful, resistant to seeing her mother, and asking repeatedly for the video call to end. As a result, the local authority decided to defer the planned face-to-face visit, instead arranging further contact by video call. Local authority records show that around the time of the video calls which followed, T continued to resist seeing her mother, referred to her mother several times as ‘naughty’, and called her a ‘monster’ and a ‘dinosaur’.
In late March 2024, the local authority issued an application for an order from the Family Court under section 34(4) Children Act 1989 authorising restriction on face-to-face contact between T and her mother. The application was supported by a statement of evidence from T’s social worker which referenced additional concerning comments made by T to the police, which were being investigated. The local authority considered that family time between T and her mother should be managed sensitively and slowly and that direct work with T was needed to allow her time to talk about her feelings towards her mother. In the interim, the local authority proposed, face-to-face family time should not take place as this would go against T’s wishes and feelings. Weekly video contact was proposed by the local authority, with support from the children’s guardian. T’s mother expressed her wish for immediate, direct contact with T.
Family Court’s decision about contact between T and her mother
The Family Court’s reasoning was summarised by the Court of Appeal (based on the hearing transcript) as follows:
- Direct contact had been agreed and had not taken place.
- If the local authority was incapable of complying with contact arrangements than it should have returned the matter to court.
- There has not been a significant change in T’s circumstances since contact arrangements were made in late February 2024 and the local authority was wrong in “taking the word of a very young child as to whether contact should take place or not”.
In light of the local authority’s application to restrict face-to-face contact, the Family Court altered its earlier direction from direct contact three times a week to the same twice a week, asking the local authority to continue to promote contact. If, after 14 days, the local authority was of the view that contact was detrimental to the child’s welfare, then the matter should be brought back to court. The local authority’s application for an order restricting face-to-face contact was adjourned.
The Family Court went on to state, in relation to T’s reference to her mother as “naughty mummy” that “children’s reasoning can often be irrational” and that “… we need to get to the bottom [of it], but if we get to the stage where a child’s distressed, we need to get to the bottom of it (sic.)”.
Finally, the Family Court addressed all parties as follows:
“… contact is for the benefit of the child. And … if the detriment outweighs the benefit, then it’s the child we focus on. … Please don’t hesitate to bring this back on the question of contact. It might be you want to bring it back even sooner than 14 days”. [Cited in paragraph 22 of the Court of Appeal judgment]
The matters before the Court of Appeal
The Local Authority challenged the Family Court’s ruling as follows:
- The Family Court failed to have proper regard to T’s distress despite grave allegations of abuse, and failed to investigate the reasons for T’s distress or allow the local authority more time for direct work with T to understand why she was “adamant” that she did not want to see her mother and why she referred to her as “naughty”.
- The Judge failed to conduct a child-focused welfare review of contact before making the order for direct contact and was further wrong to adjourn the section 34(4) Children Act 1989 application to restrict face-to-face time together between T and her mother.
The legal framework
Promotion and maintenance of contact between looked after children and their families – Children Act 1989
Paragraph 15(1) of Schedule 2 to the Children Act 1989 states:
(1) Where a child is being looked after by a local authority, the authority shall, unless it is not reasonably practicable or consistent with his welfare, endeavour to promote contact between the child and—
(a) his parents;
(b) any person who is not a parent of his but who has parental responsibility for him; and
(c) any relative, friend or other person connected with him.
The duty in paragraph 15(1) of Schedule 2 applies to all looked after children, meaning both children who are the subject of a care order and those who are voluntarily accommodated under section 20 Children Act 1989 (because any child provided with accommodation for more than 24 hours automatically becomes looked after - section 22(1)-(2) Children Act 1989).
Parental contact with children who are the subject of a care order – section 34 Children Act 1989*
*Please note: While paragraph 15 of Schedule 2 Children Act 1989 applies to all looked after children, section 34 Children Act 1989 applies only to those children who are the subject of a care order (‘children in care’).
- Local authorities are under a duty to allow children in care reasonable contact with their parents (and guardians, special guardians and other persons with parental responsibility) – section 34(1). This duty must be considered alongside the general duty to safeguard and promote the welfare of each looked after child (section 22(3)(a)) and the general duty to endeavour to promote contact unless not reasonably practicable or consistent with the child’s welfare (Paragraph 15(1) of Schedule 2 to the Children Act 1989).
- Section 34(2)-(3) gives local authorities, children, parents and other adults (e.g., those with parental responsibility for the child and special guardians) the right to make an application to the family court requesting an order relating to contact between an individual child and another person. When making such an order, the child’s welfare is the court’s paramount consideration (in line with section 1(1) Children Act 1989) and the court must have regard to the welfare checklist (section 1(3) Children Act 1989). Furthermore, the court cannot make any order unless it would be better for the child than making no order at all (section 1(5) Children Act 1989, known as ‘no order principle’).
- Local authorities have the power to apply to court for authorisation of refusal to allow contact between the child and any person who is named in the order - section 34(4). In urgent situations, local authorities have the power to refuse to allow contact for up to seven days without prior court authorisation if they are satisfied that it is necessary to safeguard or promote the child's welfare - section 34(6). Regulation 8 of The Care Planning, Placement and Case Review (England) Regulations 2010 contains important connected provisions.
- When making a care order or an interim care order the court may make a contact order even if no application has been made, if it believes that an order should be made (section 34(5)).
The welfare checklist – section 1 Children Act 1989
Section 1(1) Children Act 1989 states:
(1) When a court determines any question with respect to—
(a) the upbringing of a child; or
(b) the administration of a child’s property or the application of any income arising from it,
the child’s welfare shall be the court’s paramount consideration.
When making any decisions about ‘section 8 orders’ - i.e., with whom a child is to live, spend time or otherwise have contact, and when – in circumstances when the making, variation or discharge of the order is opposed by any party to the proceedings, the courts must have regard to the ‘welfare checklist’ set out in section 1(3):
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
(b) their physical, emotional and educational needs;
(c) the likely effect on them of any change in his circumstances;
(d) their age, sex, background and any characteristics of theirs which the court considers relevant;
(e) any harm which they have suffered or is at risk of suffering;
(f) how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
The Court of Appeal’s analysis and conclusions
The Court of Appeal concluded that there was no evidence that the Family Court treated T’s welfare as paramount in its decision-making about contact. For this reason, the Family Court’s earlier decision about T seeing and spending time with her mother was set aside.
“Decisions about contact between a child and his or her parents, particularly those taken at an interim stage of public or private law proceedings when the evidence is necessarily incomplete, are some of the most difficult which Family Court judges are required to make. The challenge is all the greater when the Judge, as here, is working under pressure of time. While the [Children Act 1989] (and where relevant the Adoption and Children Act 2002) provide the relevant statutory framework for such decisions, and while caselaw yields much useful guidance, each case is highly fact-specific. Each child is an individual, with individual needs, and individual circumstances. […] Judicial decision-making in relation to contact at every stage of the process and in each and every case demands a careful and conscientious evaluation; the statement that contact “must not be allowed to destabilise or endanger the arrangements for the child [Re B (Care: Contact: Local Authority’s plans) [1993] 1 FLR 543 at 551] retains its unimpeachable authority”. (Paragraph 32; emphasis added)
The Court of Appeal found the earlier decision of the Family Court to be “fundamentally flawed” in that it failed to “pause and reflect on whether the earlier agreement between the parties truly met T’s needs”.
The Court of Appeal challenged the conclusion of the Family Court that no significant change in circumstances had taken place which would justify a departure from the agreed contact arrangements. The initial contact arrangements were made at a time when T had not seen her mother for six weeks, whereas by the time T’s circumstances were being re-assessed by the Family court T had seen her mother on three occasions and there was agreement by professionals that contact was distressing her. This, the Court of Appeal concluded, was significant change in T’s circumstances which should have been considered by the Family Court.
The Court of Appeal found the Family Court’s ruling contradictory in that it acknowledged the need to understand the source of T’s distress while at the same time failing to duly consider it as part of decision-making. The Court of Appeal highlighted the need to consider potential emotional harm to children resulting from seeing and spending time with family members:
“The ruling is inherently contradictory in raising a question mark about T’s distress at contact …, [the Family Court’s] … proposal for ‘close’ or ‘heavy’ supervision of contact failed to appreciate that the risk … was, in this context and at this stage, of emotional harm to T by the imposition of direct contact, not physical or sexual harm. The [Family Court] Judge proposed that the matter be [returned] to court if the social worker formed the view that T was suffering “adverse trauma” (sic.) through contact with her mother, little appreciating that this was in fact the stage which the local authority was asserting had already been reached in this case, and the very basis on which the local authority had issued its [application under section 34(4) Children Act 1989 to restrict contact]”. (Paragraph 36; emphasis added)
“It is striking that the [Family Court] Judge proceeded to determine the issue of interim contact between T and her mother without any, or any meaningful consideration of T’s current welfare. There is nothing in the transcript to show that the Judge undertook any kind of reasoned analysis of the harm or the risk of harm … which would be caused by imposing direct contact on T at this stage in the face of her firm resistance; he was of the mistaken belief that the local authority had based its unwillingness to advance on its roadmap to direct contact solely on account of “the word of a very young child […] The Judge appears to have paid little if any attention to T’s emotional needs (section 1(3)(b) Children Act 1989), appearing to accept that the “high emotions of a child” were inevitably engaged in being “forced” into contact; he surprisingly suggested in this context that it would be the social worker facilitating contact who would “suffer”. He did not address the ‘capability’ of the mother to meet T’s needs in direct contact (section 1(3)(f) Children Act 1989), particularly given the questions raised about her engagement with T during the three videocalls. While the Judge acknowledged the many reasons which may exist for T’s resistance to contact, and for describing her mother as ‘naughty’, he failed to give sufficient weight as relevant ‘background’ (section 1(3)(d) Children Act 1989) to the alleged abuse of T by the mother and the admitted abuse of T by [the mother’s partner]”. (Paragraphs 37-38; emphasis added)
You can read the full judgment here: T, Re (Interim Care Order: Arrangements for Contact) [2024] EWCA Civ 469 (07 May 2024)
