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Guidance on the Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007

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Chapter 5 - Contact

Relevant Regulations: 4 and 5

In this chapter:

1. Introduction
2. Contact as legally defined
3. The Purpose of Contact
4. Planning Contact
5. Restriction of Termination of Contact
6. Siblings or Children in the Same Family

1. Introduction

Contact is a legal term used to describe the maintenance of a relationship between two people. A Contact Order, for example, determines the duration and frequency of contact, often between a child and a birth relative. For Looked After Children the term is often used to describe the need to maintain a relationship with members of their birth family, but in its broadest sense contact may also apply to the child's wider family, previous foster carers or staff from residential settings, former teachers or counsellors, friends from another area where they lived in the past; anyone, in fact, who has played a significant role in the child's life.

Without specific attention we know that contact arrangements tend to wither over time, with the result that children leaving the looked after system are often isolated and lack the support networks that other young people take for granted.

2. Contact as Legally defined

When a child is looked after, the local authority have a duty under section 17(1)(c) of the 1995 Act to take steps "to promote on a regular basis, personal relations and direct contact between the child and any person with parental responsibilities". However, this is not an absolute duty. It is qualified, because a local authority should make arrangements so far as they are practicable and appropriate, and taking account of their duty to safeguard and protect the child's welfare as their paramount concern.

Where the local authority are considering placing a child away from the birth parents, with kinship carers or foster carers or in a residential establishment, regulation 4(3) and (4) say they must assess the child's need for contact with:

  • the parents;
  • family members;
  • anyone else with parental responsibilities or rights; and
  • "any other specified person".

Regulation 4(6) says that a "specified person" is someone with whom the child has contact as a result of a court order or a supervision requirement or Children's Hearing warrant.

The local authority's general duty about contact, section 17(1)(c) of the 1995 Act, refers both to direct contact and to maintaining personal relations. This indicates a responsibility not just to enable contact to happen, but also actively to encourage and facilitate it, provided it is practicable and appropriate, taking into account a child's welfare. The responsibility under regulation 4(3) and (4) to assess contact arrangements covers the range of people listed above, including any other "specified person". As part of their overall enquiries, the local authority should check if there are any contact orders already in existence, for example under section 11 of the 1995 Act. They should also find out if anyone in the child's family or wider network is seeking a contact order with a child who is, or may become looked after. This will also include checking whether there is any information in their records about any contra-indication to this contact.

Whenever statutory orders are made to remove children from the care of their parents, the Sheriff or the Children's Hearing may make conditions or orders determining with whom children may have contact, and its frequency. The 1995 Act allows children and/or any 12. Relevant persons " to ask for a review of conditions or orders, whether they are short or long-term ones. Where there is evidence of serious risk, conditions or orders can also include prohibition of contact or restrictions on its nature.

Orders etc under the 1995 Act where contact may be covered include:

  • child assessment orders;
  • child protection orders;
  • warrants from Children's Hearings;
  • supervision requirements with a condition that the child lives away from home; and
  • private law orders under section 11.

Permanence Orders may also include ancillary provisions about contact. Birth parents and others with an interest may go back to court to ask to have ancillary provisions varied, although they will need leave from the court to go ahead with a full application.

A Parental Responsibilities Order (" PRO") granted under section 86 of the 1995 Act, became a "deemed permanence order" when the 2007 Act came into force on 28 September 2009. Any PRO granted after that date is automatically also a "deemed permanence order" when it is made. A "deemed permanence order" is described in the transitional provisions, in article 13(2) of the Adoption and Children (Scotland) Act 2007 (Commencement No. 4, Transitional and Savings Provisions) Order 2009, SSI 2009/267. It has ancillary provisions and these will include any contact condition attached to the original PRO. Birth parents and others with an interest may go back to court about a "deemed permanence order", to ask to have ancillary provisions varied, although they will need leave from the court to go ahead with a full application, article 15 of the 2009 Order.

3. The Purpose of contact

From the outset, it is important to discuss the purpose of contact with birth parents, both from the perspective of the child and also as part of the plan to work with the family situation. It is very easy for parents to be drawn into the 'rights' debate without really understanding all the potential opportunities of well managed contact. At all points in planning for a child, the relationship between child and parents is central. Where a relationship is largely positive, contact will be an important part of helping the child through a separation. The circumstances leading to the child being placed may have put strain on that relationship, so contact can be an opportunity to refocus on the positive aspects. For other parents, contact may provide a space to work on less positive aspects of their relationship with their child or learn new skills and approaches to this. This requires support to all parties.

Observing some of the contact in the early stages of separation is a valuable part of understanding a child's relationships and therefore part of the assessment. It should highlight the valuable aspects of the relationships which can be built on; and also offer evidence of negative or dangerous factors in contact which must be assessed more fully in order to decide if contact should be suspended or terminated. Observation and support during contact should be differentiated from any need for supervision; and the role of any other person present for all or part of the contact explained to participants. This needs to be balanced with opportunities for personal time together.

It is important that foster carers and residential staff are clear about the purpose and frequency of contact, and understand which elements of the proposed contact arrangements lie within their discretion and which issues require further consultation with the local authority.

4. Planning contact

The assessment of the child should include full consideration of the value of continuing contact with parents and others, and the purpose and frequency of this contact should be outlined in the child's plan.

The plan should be modified where there are clear signs that restriction or termination of contact is necessary, either to protect the child from physical or emotional harm, or to ensure the long-term welfare of the child. This should be based on careful observation and full consideration of all the factors, including the views of the child. Contact, however occasional, may continue to have a value for a child even when there is no question of returning to the family. Such contact can keep alive a sense of origins for a child; may keep open options for family relationships later in life; and may re-assure a child about the well-being of the people concerned.

Contact in its broadest sense extends beyond face to face meetings to include the exchange of letters, telephone calls, gifts and photographs. Looked After Children often express the wish to share 'big news' or recent successes rather than comply with the expectations of a rigid contact plan. Similarly, Social Workers and carers should also be vigilant about the unpredictable potential and implications of contact via social networks or mobile telephones.

The issues and dilemmas of contact require careful consideration regardless of the duration of the placement, from short-term placements right through to adoption. The first weeks of a placement can set the tone for contact arrangements when a child is looked after, and specific consideration should be given to contact for emergency admissions to ensure that obstacles to appropriate contact are not inadvertently established at the outset of the placement.

Contact in the Foster Home

Foster homes may be appropriate venues for contact. Foster carers often play a role in facilitating contact and subsequent reunification. However, the foster carers' home is usually a family home and they, their children, and any other foster children also need time to get on with daily life. Contact arrangements or recommendations for contact conditions or orders should always be subject to consultation with foster carers. The same considerations about the use of a child's home for contact applies to the residential setting as it can be very difficult for children who do not have any contact with their own family to see other children with their families or feel that the communal space is always being used for "meetings".

Contact when placed with another agency

If a child is placed with another agency, the local authority should ensure that there is a clear agreement with the agency about arrangements for contact. Responsibility for the child's welfare remains with the placing local authority. The other agency will normally have the responsibility for ensuring that agreed contact arrangements are implemented. The local authority should, with the agency's help, keep the child's contact with his or her family under review. Any decision to alter or restrict contact arrangements is for the local authority, in consultation with the agency, subject to any supervision requirement or court order.

Monitoring Contact Arrangements

Authorities should monitor the implementation of the proposed contact arrangements. Records should be kept to remind social workers of decisions taken earlier and to give a new social worker a full picture of the plan for the child. Social workers should check regularly whether the degree of contact with parents and others envisaged in the plan is happening in practice, and whether it fulfils a purpose consistent with the plan for the child. Any progress or problems should be discussed with the parents and the carers. It may be necessary to discuss with parents the possible implications of an inadequate or unpredictable level of contact for the child's future.

Contact with others, including friends

Both in the early stages of placement, when holding on to familiar contacts is reassuring, and for children who spend prolonged periods looked after away from home, contact with siblings living elsewhere and with other extended family members and friends needs similar attention as contact with parents. In surveys of the opinions of Looked After Children they are keen to emphasise how friendships are often sacrificed or overlooked when placements change.

Where a relationship which is the subject of contact arrangements spans multiple local authorities across Scotland, the UK or internationally, these factors should not be given undue weight in determining what arrangements are appropriate.

5. Restriction or termination of contact

Where contact is not reasonably practicable and/or would be inconsistent with the child's welfare, the reasons for this should be recorded. Any risk to a child from contact with parents must be assessed and a decision may be taken that contact should be supervised. Consideration must be given in these situations to the appropriate arrangements for such contact, including safe venues and sufficient people to ensure that contact can be as relaxed as possible within the necessary confines. The reasons for supervision and any conditions that may affect the continuation of the contact should be explained to the parents and the child.

Local authorities should discover and monitor a child's wishes about continuing contact with his or her parents and other family members. Social workers should, particularly in cases where the child is unsure about contact, try to help the child to clarify his or her views, and to understand what is likely to be of greatest benefit to him or her, both in the immediate and in the long-term. If a child who understands the situation continues to insist that he or she wishes to have no contact, or only limited contact, the local authority should consider taking the necessary steps to restrict or terminate contact. The full responsibility for decision-making should not, however, be laid upon the child.

Because of their responsibility to give paramount consideration to the welfare of the child, authorities should not avoid or defer difficult recommendations or decisions when it is clear that it is in the best interest of the child that contact should be restricted for the foreseeable future or terminated altogether. However, in both of these circumstances non face-to-face contact may still be in the child's interest. Authorities should have procedures, involving senior members of staff, for reaching such recommendations or decisions. Looked after reviews should be called to consider such recommendations, except in an emergency. Termination of contact should not always be permanent. As children mature and/or recover from traumatic events in their lives, their views about contact and their ability to benefit from it may change, and a dynamic approach to the planning of and consideration of contact is required.

If contact appears to be damaging a child who is accommodated by voluntary agreement with parents, and the parents are committed to its continuation, the case may need to be referred to the Principal Reporter for a decision as to whether there are grounds for referral; or to a court if the Local Authority think a Permanence Order is appropriate.

6. Siblings or Children in the same family

In terms of regulation 4(5), Local Authorities should try to ensure that siblings (children in the same family) are placed together, except where this would not be in one or more of the children's best interests. Where this proves impossible, they should, wherever possible, be placed near each other. The views of each child should be ascertained, as far as is possible given their age and understanding. The regulation uses the term "any other child in the same family" rather than sibling. This highlights the need for awareness of the child's view of 'siblings'. Many families have complex structures with full, half and step siblings and research has shown that children's perception of brothers and sisters and who is in their family is rooted as much in their living experience as biological connectedness.

In order to provide sufficient placements for sibling groups, a strategic approach to placement of children and the recruitment of foster carers is essential. Specific recruitment activity with a focus upon the need to keep siblings groups together may be required. Local authorities should consider recruitment of carers in the wider content of strategic commissioning and how this can help ensure sustainable levels of carers and care placements are available and are available when needed.

Where it is not in children's best interests for them to be placed together, or this has proved unachievable, then it may still be appropriate for frequent contact to be maintained. This should be recognised in its own right and not purely as part of contact with parents . Where siblings are placed separately, reunification should be considered at the first and all subsequent reviews, particularly where separation was dictated by a shortfall of placements.

In a small number of situations, the relationship between siblings may be inappropriate or harmful. For example, an abusive family may not have established appropriate sexual boundaries, or excessive sibling rivalry may undermine a child's sense of self-esteem or aggravate their challenging behaviour.

Recent fostering and adoption studies have found higher placement disruption rates for looked after children when one of their siblings remains at home with the birth family. Social workers should be alert to this risk factor, and take steps to help the looked after child understand why it is that they come to be looked after while their sibling remains at home.