Maintaining Standards in Family Proceedings during the Covid-19 pandemic & Protecting Children

by Callum Brook

‘Covid-19’ a potential candidate for word of the year 2020, or perhaps, it is ‘isolation’. I wish I could tell you the wheels of justice have proudly continued to turn, the sad fact is they have not. Many families are facing hardship. Hardships that may well bring them into the arena of the family courts. Below is intended to be a discussion, more specifically, my musings, on how we must maintain standards to ensure the security of children and their families where we can.

Callum Brook

This account is perhaps one that resonates with a lot of family practitioners, but I wanted to take a look at Interim Hearings – specifically, removal. Most of you will be aware of Re C 2019 and Re C 2020. They are two authorities that have given Jackson LJ the opportunity to reaffirm his principles in Re F 2018, in the context of interim removal.

The pressing question is what does that look like in the context of lockdown? Has our perception of risk and what is proportionate changed? Due to the restriction on resources have we become more risk averse?

Local Authorities are being pragmatic about how to affect checks and balances, using FaceTime and asking children to come to the window. Is this good enough however, as a means of establishing proper safeguarding checks? Do we just chalk it up to “it is the best we can do” and live with it?

My preliminary view is that, whilst risk aversion is natural in times like this, we must not forget the legal principles which must be applied – jobs are harder but that should not make the removal of children easier.

Local Authorities should continue to ensure, on balance, they are establishing: –

  1. the type of harm, and
  2. the likelihood of the harm arising, and
  3. what can be done to mitigate that risk.

We cannot lose sight of the fact that separation, even at an interim stage, is a last resort – putting that into the context of Re C 2020 (using the later of the two cases for ease), specifically a ‘high level of justification’. Any Local Authority needs to give a considered and balance appraisal to the court of the picture of risk and why is it proportionate and necessary to justify separation in the interim.

The court is almost asking the question that Re T poses, put all the options before us and let us holistically assess against the facts, the type of harm, the likelihood and what steps can be put in place to mitigate that harm. Balancing that against other competing factors, how is contact going to be facilitated, especially if the children are older with a high degree of an established attachment to their parents? Driving at the question, on balance, at this stage is removal likely to cause more harm? FaceTime and updates from social workers are not a satisfactory substitutes for ‘traditional’ direct contact.

Whilst the limitations on social workers to establish safety is limited (I certainly do not envy them in their task), it has to be right that the court continues to ensure a high standard so that families are not separated as a result of physical difficulties in managing any placement at home under an Interim Care Order.

Parents must be given the benefit of the legal principles designed to protect them. Likewise, parents should not use the lockdown as a means of frustrating the proper investigation of the Local Authorities and indeed their ability to exercise their duty to children with whom they have concerns or share PR.

In the proceedings themselves, any interim removal hearing, by its very nature is contentious – technology is helping, it is not however a proper substitute for live hearings. We must be careful not to fall into the trap of “quick justice is adequate”.

First principles apply, justice must be fair – not rushed for ease.

Central Chambers has a family team with experience in representing applicants and respondents in complex multi-jurisdictional cases and has facilities to enable simple and easy online conferences with any relevant party.

If you would like to instruct Callum Brook or another member of the family team, please do not hesitate in contacting the family clerks by clicking here or by calling on 0161 236 1133.