Striking the Right Balance – Contact for Infants in Care

November 26, 2019

Striking the Right Balance – Contact for Infants in Care

Removing a child from the care of their birth parents is a drastic measure that can be very traumatic, perhaps even more so when the child is a new-born baby. This was acknowledged by Munby J (as he then was) in Re K [2008] EWHC 540 (Fam) where he held that “it was a very drastic thing indeed to interfere with a young mother’s contact with her new-born baby and his contact with her, particularly at a time when ‘threshold’ (s 31 (2) of the 1989 Children Act) is yet to be established.”

When this type of separation is deemed necessary and an infant becomes a looked after child (“LAC”), a balance must be struck between recognising the birth parents’ right to bond with their baby and ensuring the best interests of the child are met. It is acknowledged that there is a myriad of scenarios in respect of contact affecting children of differing ages, however, this article predominantly focuses on a new-born or looked after infant child. Assuming the local authority agrees to contact in principle, the question arises as to what frequency of contact is deemed to have a positive impact on the infant? An important element in this equation is the infant’s need to form a positive attachment to a primary carer during this crucial developmental stage. When an infant becomes a LAC under these circumstances, a conflict may exist between the new primary carer (i.e. foster carer) forming a positive attachment with the infant, and the birth parents’ desire to also form a similar bond.

According to the Department for Education’s Fostering and Adoption Guidelines, the nature and frequency of contact should be informed by the purpose of contact, the needs of the child, their age, stage of development and the reason for them becoming a LAC. These factors should determine how often the child should meet with the parent and what form this contact should take. In making the decision as to the frequency of contact, the issues remain as to when contact with a birth parent becomes too frequent for a new-born baby or infant in foster care, and whose interests are really served with high-frequency contact?

What does the law say?

S 34(1) Children Act 1989, provides that the local authority shall allow “reasonable” contact between a child in its care and his parents, guardian and others with parental responsibility (see s 34(1) (a) to (d)). However, the nature and quantity of such contact vary widely due to the broad interpretation that can be given to “reasonable contact”.

In addition to national law, article 9.3 of the UN Convention of Rights for the Child 1989 (to which the United Kingdom is a signatory) provides that “States’ parties shall respect the right of the child who is separated from one or both parent, to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to a child’s best interests.”

Notwithstanding the above, when a court permits a local authority to refuse to allow contact with a birth parent and their infant, the local authority is no longer required to endeavour to promote such contact (s. 34(4) Children Act 1989).


What does the research say?

Over the last decade, significant research has been undertaken on this topic resulting in much debate as to the correct frequency of contact for babies with their birth parents. One school of thought suggests that a high frequency of contact may be too disruptive for a baby (as considered at the Family Justice Council 2010 Debate). This research is based upon the fact that babies are born with a biological drive to seek proximity to a protective adult for survival. They are dependent on the physical and emotional availability of the key adults who take care of them and the drive for closeness promotes attachment behaviours, which helps children feel safe. Often the importance of developing positive attachments as early as the new-born phase of a child’s life is challenged on the basis that an infant has not yet developed the ability to comprehend their external environment and will not remember those circumstances when they are older. However, mental health clinicians attest that poor attachments, during early childhood, are likely to have negative effects on a child’s long-term outcomes (Newman, 2017). Attachments are formed during the first year of life, even in the context of maltreatment where the infant seeks comfort from a caregiver who is also the source of fear. As a result, these infants remain in a state of high anxiety, which can have an impact on brain development (Schofield and Simmonds, 2011).

In 2011, the Ministry of Justice published The Family Justice Review Interim Report 2011 (the “Report”). The Report considered, inter alia, whether frequent contact between infants separated from their birth parents during child protection proceedings may be inherently harmful to their development and wellbeing. The Report referred to the fact that infants are often required to spend significant periods of time travelling for contact with their birth parents; sometimes up to 5 times per week for several hours. The Report considered research from Kenrick, Humphreys and Kiraly, which concluded that such frequent contact can be damaging for children. Their research gave detailed accounts of the stressful and negative impact on infants from high levels of contact during care proceedings and highlighted the potential emotional harm on infants in these circumstances. They concluded that the quality of contact is much more important to a child’s welfare than frequency (Humphreys and Kiraly, 2011).

Young children who are removed from harm and provided with secure caregiving can form an attachment to their new carer. However, this attachment can be compromised if contact with the child’s birth family is not sensitively handled (Schofield and Simmonds, 2011). Infants who have frequent contact with their birth family may suffer continuous disruption to their daily routines and may be unable to experience the type of settled caregiving they need to resolve the harm they have experienced. Such contact arrangements can produce high levels of stress for the infant through the discontinuity of care and potentially insensitive care during contact. It can then be a challenge for carers to help the infant to relax and trust them, which in turn, may compromise the infant’s development.

When children develop healthy attachments in their infancy, they tend to meet developmental milestones in cognitive functioning, fine and gross motor skills, language development, and visual development (Parenting Today Staff, 2011). Conversely, children with disorganized type attachment in infancy were believed to be the most insecure of all types and often exhibiting mixed internalized and externalized behaviours (Ding et al., 2014). Children with secure attachments develop secure peer relationships, engage in creative play and show a range of positive mental health indicators (Colmer, et al., 2011).

Unsurprisingly, the above research was met with scepticism and concern from other researchers. In particular, concerns were raised over the potential danger of minimal contact ‘messages’ from research projects to rationalise and justify decisions that have been taken for other reasons, specifically; i) the lack of resources to promote frequent high quality supervised contact; ii) the lack of resources to undertake appropriate assessments to thoroughly explore the potential for reunification; and iii) a professional culture that promotes pessimistic projections as to the potential of natural parents/families – and a consequent rather idealistic pro-compulsory adoption mindset. In this situation, it has been argued that often birth parents are caught in a ‘no win’ situation whereby minimal contact weakens their bond with their child, which in turn, results in assessments that highlight impairments of ‘attachment’.

Consequently, these assessments frequently recommend the need for ‘permanency’ away from the birth parents, thus resulting in further reductions in contact in preparation for permanent separation, either by long-term foster care placement or adoption. Indeed, it is argued that minimising birth parent contact at the early stages of care proceedings is not a neutral measure (Duxbury, 2007). It significantly ‘steers’ the case by impairing the potential of the natural parent/infant relationship, thereby reducing the prospects of reunification and increasing the likelihood of adoption (Duxbury, 2007). On the basis of careful consideration of their lifelong best interests, separated babies and infants have both a need and a right to expect that all reasonable efforts will be invested in open-minded assessments of their birth parents and extended family members (involving high levels of contact in local and naturalistic surroundings).

It has been previously suggested that contact between an infant LAC and their birth parents should take place in the foster carer’s home. (Smariga and Duxbury, 2007) This inclusive practice regards the foster carer as a temporary caregiver for the child and also a supportive role model for the birth parents. In contrast to the contact context outlined by Humphreys/Kiraly & Kenrick, where infants have long tiring journeys to contact sessions in agency locations, Smariga outlines what she perceives as the benefits of contact being local, informal and flexible – including high levels of collaboration between foster carers and birth parents. Whilst this idea is admirable, clearly further consideration needs to be given to the willingness of foster carers to act as such facilitators and the impact on their role as care giver to the child and any other children in placement.

What is the position today?

The case law at present has not changed following the research. The leading case remains Kirklees Metropolitan District Council v S [2006] 1 FLR 333, which sets out the following important points:

• The obiter dicta by Munby J (as he then was) in Re M [2003] EWHC 850 (Admin), at paragraph 44(iv) are not principles to which courts are bound.
• Contact arrangements for a baby should take place most days of the week for lengthy periods. This does not mean daily contact but does mean more than three, two-hour sessions per week.
• Daily supervised contact with a child in foster care is exceptionally unusual.
• LA resources and the practicalities of arranging contact are not wholly irrelevant, but submissions on these lines will need actual costs to be known.

More recently, research from Grandparentsplus, the national kinship charity in the UK, examined the effects of parental contact on the increasing number of children being cared for by relatives other than their parents. Whilst it is acknowledged that kinship care differs from the traditional foster care placement discussed in this article, the trend is leaning towards this form of placement. Research from Grandparentsplus has found that until now, the presumption among social workers and the courts is that contact with parents is usually beneficial for children. However, the study found that in many cases this may not be true. The research found that 42% of those who had contact with their mothers as teenagers were likely to have poor mental health as young adults, compared with 12% of those who had had no contact.

Although this research pertains to older children as opposed to infants, the results are significant, and it is submitted that such an important issue merits further consideration to truly understand the impact of high-frequency contact on LAC in their infancy. Ultimately, decisions relating to the arrangements for contact for a baby or young infant should be driven by a consideration of the welfare checklist and focused on the particular needs of that child and the capacity of the birth parents and the foster carers to support the child to have a positive experience.

Niamh Wilkie

Commercial, Employment, Family, General Civil, Insolvency, Property and Planning, Town and Village Greens, Will Disputes