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Stuck Between a Virus and a Human Rights Breach…

Wednesday 24 February 2021

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These are strange times and the risks posed by the pandemic are constantly changing and increasing. The impact of this on individuals is significant and concerns about personal safety are high. Balancing those concerns with schooling, home schooling and contact means this will become even more difficult.

The position of foster carers at these times is unenviable. However, I have seen a number of cases in which foster carers have been unwilling to facilitate direct contact between parents and children in care. In my view, this is not an acceptable situation.

Law has not changed. It is the duty of a Local Authority to allow any child in their care reasonable contact with their parents under section 34(1) of the Children Act 1989. This duty is in compliance with the Article 8 Rights of the parents and children. If a Local Authority sets a level of contact that is reasonable, that it then does not facilitate, in my view this must entail a breach of the parents and the child’s Article 8 rights. 

It is open to the Local Authority to apply for a section 34(4) order to refuse to allow contact between the child and parent. However, in circumstances where all parties are agreed as to what reasonable contact is, and the only barrier is the refusal of a foster carer, such an application makes little sense.

It is unfortunate that in the UK foster carers are not considered as key workers. It is clear they are essential to the running of the care system. Part of their important role is exposing themselves to a certain amount of risk, and that must be recognised. The government permitting contact between birth parents and children in care, as well as between siblings in care has an impact on all foster carers and any caring facility in which children in care may reside. However, it also places a responsibility on these essential workers to fulfil their role; and a central part of this is allowing this permitted contact to take place.

Foster carers do not have the power to decide whether contact should take place. It is only natural to have sympathy for the position foster carers are in. However, a useful analogy is comparing a foster career to a bus driver. You arrive for your shift and drive the bus to all the locations on your route; however, you refuse to open the doors due to the risk of COVID-19. Are you really fulfilling your role? The difference between them is the clear and heavy duty that is placed upon a foster carer, and the impact of the omission breaching the human rights of the child and family involved.

Contact must be facilitated. Local Authorities, and indeed, every party in care proceedings must be robust about this. This may involve requiring a change of placement, and unpleasant and unwanted conversations with otherwise brilliant foster carers. Applications must be made to hold the Local Authority to account if they fail. The Court must be made aware, and damages pursued if it continues.

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