Contact - legislation

Law and standards

The Law and Standards sections apply to England only.

A brief indication of how the law changed upon full implementation (September 2004 and September 2005) of the Adoption and Children Act 2002 is inserted in italics.

Compliance with statute and regulations is mandatory; compliance with standards is taken into account by the Council for Social Care Inspection, when registering and inspecting fostering service providers.

The Children Act 1989 (CA 1989) and case law, [decisions of the higher courts] identify contact as a right of the child - birth parents, relatives and others do not have a 'right’ to contact, although local authorities have legal duties to provide and promote contact, as set out below, unless it is not in the best interests of the child.

Fostering Services Regulations 2002 [FSR 2002] Regulation 14.

'The fostering service provider shall, subject to the provisions of the foster placement agreement and any court order relating to contact, promote contact between a child placed with a foster parent and his parents, relatives and friends unless such contact is not reasonably practicable or consistent with the child's welfare.’

National Minimum Fostering Standard 10: 'The fostering service makes sure each child or young person in foster care is encouraged to maintain and develop family contacts and friendships as set out in his/her care plan and/or foster placement agreement’.

Children Act 1989

Contact for 'looked-after’ children [including those not subject to care orders or interim care orders] - Schedule 2 paragraph 15 CA 1989

'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:

Contact for Children 'in Care’ [subject to care orders or interim care orders] - CA 1989 section 34

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] Children Act 1989.

Departure from the terms of a Contact Order under section 34 - Contact Regulations 1991 Regulation 3

A local authority can depart from the terms of a contact order if the person named in the order agrees and, where the child is of sufficient understanding, s/he also agrees. Written confirmation must be sent within seven days.

Permission to refuse contact - CA 1989 section 34 [4]

The local authority may not refuse contact to a child 'in care’ completely, unless an order for permission to do so is granted by the court, on application by the local authority or the child.

Emergency refusal of contact for seven days maximum - CA 1989 section 34 [6]

A local authority may refuse contact to a child 'in care’ for a maximum of seven days, without a section 34 [4] order if it is necessary to do so to safeguard or promote a child’s welfare.

Contact Order on court’s own initiative - CA 1989 section 34 [5]

The court may make an order under section 34 of its own initiative in proceedings concerning a child in care.

Contact and children 'freed for adoption’ - Adoption Act 1976 section 18 and Children Act 1989 section 8

There is no legal duty to promote contact between a child freed for adoption and his/her family, unless a section 8 Children Act 1989 Contact Order has been granted. [This is very rare.]

The Adoption and Children Act 2002, as fully implemented in September 2005, changed the law in relation to contact for some children in foster care. When placement for adoption has been authorised for that child, the legal duty to promote contact under section 34 CA 1989 will not apply.

When a child’s current foster carers become his/her prospective adopters [by the making of a placement order or section 19 parental consent] the law in relation to contact will be governed by section 26 of ACA 2002 - contact decisions will be made by courts in the context that an adoption care plan for the child has been endorsed by the court or by parental consent.