Solicitor Emma Roberts offers advice around the new legal guidelines around children in care during the coronavirus pandemic.

In light of the current health crisis and government guidance about safety constantly changing, parents, family members, children in care or those involved in children’s services will feel particularly worried about what effect this will have on children. Rules have been updated and changes have been made to living arrangements, schooling and family contact.

The following Q&A sets out current legal regulations around children in care:

Children’s services have told me they are making an application to court – what can I do?

Despite the current health crisis, the law says that children’s services, in local authorities, must get involved and investigate if they have ‘reasonable cause to suspect that a child who lives, or is found, in their area is suffering significant harm’. They must take action if, following their investigation, they believe that a child has been or might be harmed.

If the local authority considers the situation to be serious enough, they may decide that it is necessary to apply to the court for a ‘care order’ or a ‘supervision order’. These kind of court cases are referred to as ‘care proceedings’.

These cases will continue to be dealt with by the courts. If you are a parent of a child who is the subject of care proceedings then you automatically qualify for legal aid, regardless of your financial circumstances. Other family members may also qualify.

You should contact a family law solicitor as soon as possible and they can advise on your case. A specialist family law firm will have online facilities in place to enable video conferencing in line with current government guidelines.

I am involved in care proceedings at the moment – what will happen to my case? 

The government has confirmed that the justice system must continue to operate during the current crisis. All care proceedings are extremely important. Your case will carry on and your family will not be forgotten.

However, there will need to be changes to the way that most court hearings take place and new dates will be set. The courts are still working out exactly what is going to happen. Each case is different and will be looked at individually to decide the best way forward for the case and the family. Your solicitor will be able to explain what might happen in your case.

As long as the government advice remains for people to stay at home and avoid public places, except where it is completely necessary, almost all court hearings will take place remotely. This means that they will have to take place by video link, over the internet or by telephone.

Some hearings may still have to take place at court. Your solicitor will talk you through whether this is likely to be required in your case and will discuss with you how this will work and any concerns you have. In individual cases, it may be that not everyone has to attend court and that some people can join by video or phone.

For the time being, the courts are having to prioritise the most urgent of hearings. Although all cases in care proceedings are extremely important, some hearings might have to be put back for a few weeks so that judges can focus on immediate issues of child safety. It is likely that other hearings, which discussed next steps, will not happen at all because everyone involved might be able to come to an agreement, which the judge can be asked to approve. As always, your solicitor will talk you through the options and take your instructions before agreeing to anything.

I have received a letter from children’s services saying that they want to have a pre-proceedings or PLO meeting with me about my child/ children – what should I do? 

Despite the current health crisis, the law says that children’s services must get involved and investigate if they have ‘reasonable cause to suspect that a child who lives, or is found, in their area is suffering significant harm’. They must take action if, following their investigation, they believe that a child has been or might be harmed.

If the local authority considers the situation to be serious, but still wants to avoid going to court, they may decide to start the ‘pre-proceedings process’ which is sometimes referred to as the ‘PLO process’. This is where there is a meeting with you and your solicitor to try to come to an agreement about what needs to happen to manage the concerns the local authority has about your child or children. The local authority will write to you first setting out their concerns and inviting you to a meeting.

Parents who receive these letters are automatically entitled to legal aid to cover advice from a solicitor and he or she will attend a meeting with you. Local authorities are still working out how these meetings will go ahead in light of the current health crisis and government advice. It is likely that most will take place by video or phone.

My child is in care – can I still see them?  

This is likely to be a huge worry for families where a child is in care. At a time when you want to be with your loved ones it may become more difficult to do so.

What does the law say?

When a child is the subject of an interim care order or a full or final care order, the local authority has parental responsibility for them which it can use ‘to the exclusion’ of the parental responsibility of parents and others. This means that it can make decisions about the child’s contact with their family members even if these are not agreed by the family members.

However, the law says that when a child is in care, the local authority must allow the child reasonable contact with their parents and, in certain situations, other family members. Social workers should find out, and take into account, the wishes and feelings of the child, the parents, and anyone else with parental responsibility, when making important decisions about the child including about their contact with their family.

Arrangements for contact should be set out in the child’s care plan. The care plan (including arrangements for contact) must be kept under review at regular intervals (no later than four weeks after the child becomes looked after, and then within a further three months and then every six months) and whenever a substantial change to the plan is needed.

A local authority can refuse to allow contact with a child in care if they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare AND it is an extremely urgent situation. In these circumstances, this refusal of contact can only last for up to seven days. The local authority must immediately explain in writing why contact is suspended, for how long, and state that the decision can be challenged in court.

If the local authority considers that it needs to extend the refusal beyond seven days, then it will require a court order authorising it to do so. The local authority has to make an application to the court and this application should be sent to parents with parental responsibility and any others with parental responsibility.

Parents, children, and in some circumstances other family members, can make an application to the court for an order about contact.  When such an application is made, the court can make a judgement regarding what it considers appropriate.

Whenever the court is asked to make a decision about contact with a child in care (whether the application is made by the local authority, child, parent or other family member), the law says that its ‘paramount consideration’ must be the child’s welfare. The law says that in deciding what the child’s welfare requires, a court must consider a number of issues called a ‘welfare checklist’ –

1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
2. his physical, emotional and educational needs;
3. the likely effect on him of any change in his circumstances;
4. his age, sex, background and any characteristics of his which the court considers relevant;
5. any harm which he has suffered or is at risk of suffering;
6. how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
7. the range of powers available to the court under this Act in the proceedings in question.

Local authorities also have a duty to promote contact between a child and their siblings unless it is not consistent with their welfare. Arrangements should be set out in the child’s care plan.

What does all this mean for me and my child/children?

These are very difficult times and there are likely to be a lot of problems facing social workers in making arrangements for children in care to have contact with their families. On 23 March 2020 the government introduced new measures requiring people to stay at home except for very limited circumstances. It is unclear whether contact with children in care will be an exception to this general rule. Even if there is some kind of exception which would allow contact with children in care, individual contact centres may have to close, and any that remain open are likely to be very short staffed. Foster carers and other carers may have to self-isolate because they or someone in their household has become unwell or is vulnerable.

Local authorities are going to have to look at each case individually and decide what can happen in relation to contact. Parents (and other family members in some situations) should be consulted about any change in the plan for contact with their child and it is always advisable to try to discuss any concerns with your child’s social worker and Independent Reviewing Officer and to see if a way forward can be agreed.

It is worth bearing in mind that seeing your child face-to-face is not the only way to have contact. You can also spend time with them over Skype or similar video facilities, and on the phone. It might also be possible to send emails and letters or cards. Although this is far from ideal, it may be that in the individual circumstances of your case and in light of the current situation, a court would consider this to be reasonable and to meet your child’s welfare needs, at least on a temporary basis.

I’m unhappy with what is proposed, can I challenge it?  

1. If your child is in the care of the local authority and you are still in care proceedings then arrangements for contact can be dealt with within the care proceedings and it may be possible for you to make an application for contact within the care proceedings. You should discuss this with your solicitor.
2. If your child is the subject of a final care order (the care proceedings have finished) then you may be able to make an application to the court for contact with them.
3. If your child is in the care of the local authority without an order, usually based on your consent (sometimes referred to as ‘section 20’) then you may have additional options and you should consider taking legal advice.

The situation regarding sibling contact, and contact with other family members, is slightly different and a solicitor will be able to discuss this with you.

Legal changes

Although there are going to be changes in the way that hearings happen, courts are still operating. Legal aid is available for applications for contact with children in care, or if you receive an application from the local authority asking the court to authorise a refusal of contact between you and your child. Legal aid is not, however, automatic like it is for care proceedings and pre-proceedings meetings. The Legal Aid Agency will require information about your finances and about the circumstances of your case before granting legal aid.

A specialist family solicitor will offer advice and assistance when responding to the local authority decide in relation to contact with your child, or if you receive an application from them asking the court to authorise them to refuse to allow contact between you and your child.

Emma Roberts is associate solicitor specialising in family law at Stephensons Solicitors LLP