The ongoing impact of COVID-19 on care proceedings
An issue for many parents in care proceeding during the COVID-19 pandemic will be maintaining contact with their children in care. The Family Court’s key principle in cases involving children is that the child’s welfare is the most important consideration when making decision regarding their upbringing.
The Local Authority has a duty to allow “reasonable contact” with the child’s parents. However, in these uncertain times, because contact centres are closed, the court is likely to consider that video contact will be reasonable.
Government guidance provides that contact arrangements, “should be assessed on a case to case basis taking into account a wide range of factors including the government’s social distancing rules and the needs of the child”
Some parents will be concerned about having a remote court hearing, i.e. hearings by telephone and not in person.
Remote hearings are the default position until further notice. However, hearings may take place in person if justice and fairness require this and it is safe to do so.
The Judge will decide whether the hearing should take place remotely or in person. In making this decision they will consider all the circumstances of the case. The Court will also wish to avoid hearings being adjourned which may cause delays in the case. The court has a duty to ensure that proceedings concerning the upbringing of a child are conducted as quickly as possible.
In a recent court case Re A (Children) (Remote Hearing: Care and Placement Orders)  EWCA Civ 583, the court laid out the factors that the court will consider when deciding whether a hearing should take place remotely or in person:
- The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?
- Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;
- Whether the parties are legally represented.
- The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;
- Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
- The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;
- The scope and scale of the proposed hearing. How long is the hearing expected to last?
- The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;
- The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;
- Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.
Of course, as the country transitions out of lockdown, there’s a likelihood that courts will start to make assessments that lean back toward the norm of hearings being held in person.
Parent’s may in some instances request that their assessments (parenting, psychiatric/psychological etc) take place in person (complying with government’s social distancing guidance) if they consider that their case may be prejudiced by the assessment not being in person. However, this will not always be practical. It will for the Judge to decide this issue.
Assessments can be undertaken by video link, which is effective, but it has limitations. If there is a suitable alternative and provided that the assessment is carried out thoroughly, the Court will accept the assessment. The Court will need to be satisfied that the assessment has been carried out in such a way that it provides the court with the necessary information to make a final decision in the case which is fair.
We have successfully challenged an assessment which lacked the proper analysis and depth required on the basis that insufficient time was given to the report. The Judge gave permission for our client to have another assessment.
Drug and alcohol testing
Drug and alcohol testing are being carried out at parent’s home and the testing companies have been using PPE to ensure the testing takes place safely.
The Family Court and the Local Authority is seeking to ensure that Care Proceedings are progressed as smoothly as possible during this period, however, there are some necessary adjustments.
If you have any questions regarding contact with a child in care or your assessment within care proceedings during this period of lockdown. Please contact us on 020 8492 2290.