Right to Contact and Duty to Promote

When considering whether contact should take place the Local Authority (LA) is bound by legislation and guidance and the focus of this is, as it should be primarily on the child.  The child has the right to contact and the LA has a duty to promote contact.  Of course any contact must be wanted by both parties as unwilling parties cannot be forced to have contact even if it is deemed to be in the best interest of the child.  Assuming that both the child and the foster carer wish to have direct contact, the following may be applicable.

The Child’s Human Rights

Human Rights Act 1998

Article 6: the right to a fair trial in relation to decisions which affect a person’s civil rights.

Article 8: the right to respect for privacy and family life.

The United Nations Convention on the Rights of the Child UNCRC

Article 12 (Respect for the views of the child): When adults are making decisions that affect children, children have the right to say what they think should happen and have their opinions taken into account. This does not mean that children can now tell their parents what to do. This Convention encourages adults to listen to the opinions of children and involve them in decision-making -- not give children authority over adults. Article 12 does not interfere with parents' right and responsibility to express their views on matters affecting their children. Moreover, the Convention recognizes that the level of a child’s participation in decisions must be appropriate to the child's level of maturity. Children's ability to form and express their opinions develops with age and most adults will naturally give the views of teenagers greater weight than those of a preschooler, whether in family, legal or administrative decisions.

Article 13 (Freedom of expression): Children have the right to get and share information, as long as the information is not damaging to them or others. In exercising the right to freedom of expression, children have the responsibility to also respect the rights, freedoms and reputations of others. The freedom of expression includes the right to share information in any way they choose, including by talking, drawing or writing.

How legislation underpins implementation in England - Further information for the Joint Committee on Human Rights - March 2010 - Work in progress refers to Freedom of Association by stating under Article 15
1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.

2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Respecting the Child’s Wishes and Feelings

The Children Act 1989 Volume 2: Guidance and Regulations Care Planning, Placement and Case Review – March 2010 (CA1989V2) states

The child’s wishes and feelings

1.9 Section 22(4) of the 1989 Act, consistent with Article 12 of the UNCRC, provides that, before making any decision with respect to a child whom the local authority are looking after or proposing to look after, the authority must, so far as reasonably practicable, ascertain the wishes and feelings of the child. Section 22(5) provides that, in making any decision in relation to the child, it should give due consideration to those wishes and feelings, having regard to the child’s age and understanding.

Contact and The Children Act

With regard to contact, The Children Act 1989 (CA 1989) and case law, [decisions of the higher courts] identify contact as a right of the child.[1] 

Contact for 'looked-after’ children [including those not subject to care orders or interim care orders] is covered by schedule 2 paragraph 15

'Where a child is being looked after by a local authority, the authority shall, unless it is not reasonably practical or consistent with his welfare, endeavour to promote contact between the child and:

·         his parents

·        any person who is not a parent but who has parental responsibility for him

·         any relative, friend or other person connected with him.'

A former carer would come under the category of ‘friend or other person connected with him’

Contact for Children 'in Care’ [subject to care orders or interim care orders] CA 1989 section 34 says that where a child is in the care of a local authority, the authority shall allow the child reasonable contact with: his or her parents [with and without parental responsibility] and any legal guardian, the previous holder of a Residence Order, and any person who had care of the child by virtue of a High Court Order.

Reasonable contact for children 'in care’ includes direct contact between the child and those listed above, but the local authority can decide the frequency and venue of contact, and whether it is supervised or not.  If it is not possible to reach agreement about what is 'reasonable’ contact, the local authority or child can apply for a contact order under Children Act 1989 Section 34 [2] or section 34 [4] - [see refusal of contact below] or the parents and others listed above, or any person with the leave of court, can apply for an order for contact which is to be allowed by the local authority Section 34 [3].