Children in Care
When the child is in care
When a child is made the subject of a care order, the local authority has legal responsibility for the child. As parents you continue to have parental responsibility. However, the local authority can limit your parental responsibility if this is necessary in the interests of the child's welfare.
Contact with a child in care
Under section 34(1) Children Act 1989, the Local Authority (i.e. Children’s Services) must allow the child reasonable contact with:
any person who held a Residence Order or Child Arrangements Order for residence immediately before the Care Order was made; and
any person who had care of the child under wardship immediately before the Care Order was made.
Children’s Services has a general duty to promote contact with wider family members such as grandparents and siblings. This is the default position in the absence of any court orders.
What if I am unhappy with the level of contact Children’s Services are allowing?
Talk to the child’s social worker.
Ask for written reasons for the level of contact that you are currently having.
Make proposals for the type of contact you seek – e.g. supervised, in the community, at home and demonstrate why this is in the best interests of the child.
If you cannot resolve the situation amicably, you can apply to court for an Order for contact with a child in care.
What type of orders can I apply for ?
If you are unhappy with the level of contact that Children’s Services are allowing, you can apply for contact under section 34 Children’s Act 1989. Note: this is a different application to an application for contact under a Child Arrangements Order (section 8 Children’s Act 1989).
To apply for this order:
If you are the child in care’s parent, guardian or special guardian, or if you held a Residence Order or Child Arrangements Order for residence immediately before the Care Order was made, you will not need the court’s permission to make the application.
If you are any other person (e.g. sibling or grandparent), you will need to seek the court’s permission. To grant leave, the court must be satisfied that there is a real prospect of success.
You need to give notice to the Local Authority, any person who is caring for the child when you make the application and any person with Parental Responsibility for the child.
Can I get any help with legal costs?
If there are current care proceedings and you are a parent or person with Parental Responsibility for the child, the Legal Aid Agency can cover the costs of the contact order application.
If there are no current care proceedings, or if you do not have Parental Responsibility for the child, you will need to check whether there is any legal aid available for your case. Alternatively, you can pay privately or represent yourself. Check exact fees for the application with your local court.
What type of contact can be granted?
A contact order determines who the child should keep in touch with in order to maintain a relationship with biological parents and other family members. The court can attach conditions to the contact, e.g. that contact may be direct (in person), if it is supervised or unsupervised, overnight, in the community; or may be indirect only, such as letters, emails, pre-recorded videos or telephone or video calls.
It can also stipulate that certain other persons are not present during contact. Contact can be granted for several days at a time.
What will the court consider when deciding on contact with a child in care?
Courts start with the presumption that reasonable contact between the parents and child should continue, especially in the short term. The court will balance the advantages and disadvantages of contact. The court will look at the impact of contact on the long-term plans for the child, considering the likelihood of the child returning home.
The Court of Appeal has held that contact can be ordered where the application is an attempt to set aside a Care Order, if it is for the child’s welfare and the parent can show a change of circumstances which the Local Authority should have looked at when considering the child’s care plan.
The Court of Appeal has also recognised that continuing contact can:
give the child the security of knowing their parents love them and are interested in their welfare;
avoid the damaging sense of loss associated with abandonment;
create a sense of approval from natural parents about the substitute family; and
provide a sense of personal and family identity to the child.
When can contact be refused?
The court has the power to make an order allowing Children’s Services to refuse contact of a child in care with a named person. The court can make this order in any court proceedings concerning the child, including private proceedings.
Children’s Services can also refuse contact urgently if it is necessary to safeguard or promote the child’s welfare but this can only last for a maximum of 7 days. Children’s Services must explain their reasons in writing. To refuse contact for more than 7 days, Children’s Services must obtain a court order. The court can make an order authorising the refusal of contact for as long as it considers it to be for the child’s welfare, but Children’s Services ought to regularly review this, to allow contact to resume as soon as it is safe and appropriate.
What can the court order?
The court can either order that contact take place between the relevant person and the child or order that Children’s Services is allowed to refuse contact. The court cannot order that there be no contact between a person and child if Children’s Services wishes to allow contact.
The court can grant an interim order allowing contact or authorising Children’s Services to refuse contact between the first hearing and the next hearing.
Can I apply again if the court authorises refusal of contact?
If the court makes an order authorising the Local Authority to refuse contact, you will need to obtain the court’s permission before you make another application in the 6 months following this decision. The court can refuse permission if it does not think the application is in the best interests of the child.
It is possible for the court to put a barring order in place (under section 91(14) Children’s Act 1989) stopping you from making any further applications for a specified period. If this has happened you will need the permission of the court (form C2) before making another application.
Can the Contact Order be varied or discharged?
The Local Authority, child or person named in a Contact Order can apply to have it varied or discharged by the court. The court can also discharge the Contact Order itself. If the Contact Order is discharged, the Local Authority remains under a duty to afford reasonable contact under section 34, unless the court puts in place an Order authorising the Local Authority to refuse contact.
The Contact Order can be varied on agreement and with the consent of the child if the child has sufficient understanding.
What if the child in care wants contact with their sibling?
A child in care can make an application for contact with another child under section 8 Children Act 1989. They must first obtain the court’s permission to make the application using the form C2). They would then apply for a Child Arrangements Order. For further information, see our How-to Guide on Contact.
The information on this page is for general guidance only and should not be treated as a definitive guide or be regarded as legal advice. If you need more details or information about the matters referred to on these web page please seek independent formal legal advice. This information was correct at the time of going to press in September 2020.
The law in this area is subject to change, we cannot be held responsible if changes to the law outdated this publication. Links provided on our website are for your convenience. It does not imply reliability or endorsement by us, and we accept no liability in respect of the content.