Contact for infants subject to care proceedings.
Schofield, Gillian ; Simmonds, John
The legal context
In 2003 Mr Justice Munby (as he then was) handed down a judgment
(Re M (Care Proceedings: Judicial Review) [2003] EWHC 850 (Admin),
[2003] 2 FLR 171) which has had a significant impact on the arrangements
for contact when a baby is removed from his or her parents by a local
authority. Paragraph 44 (iv) includes very specific references to the
frequency of contact, for example: 'Typically, if this is what the
parents want, one will be looking to contact most days of the week and
for lengthy periods' and concluding, 'Contact two or three
times a week for a couple of hours a time is simply not enough if
parents reasonably want more.'
Since this judgment, it has become widely accepted in practice that
for infants (from birth to 12 months) placed in foster care, frequency
of contact with the mother during proceedings should be set at five to
six days a week and that those contact visits should last for a
significant length of time. A subsequent judgment (Kirklees Metropolitan
District Council v S (Contact to Newborn Babies) [2006] 1 FLR 333, Bodey
J) somewhat modified guidance on this matter, but the practice of
arranging extensive contact has continued.
At the President's debate in December 2010, Lord Justice Munby
set out his position in the light of the research evidence presented on
the risk to infant welfare. In particular, he made two important points.
First, his original judgment had referred to the provision of extended
contact 'if parents reasonably want more'. In making such a
decision, the court would need to take into account the welfare of the
child before considering what is 'reasonable'. Second, in his
experience there was rarely any argument or evidence presented to the
court by any of the parties regarding the frequency and arrangements for
infant contact and the possible impact on the welfare and development of
the infant. He stated that he and other judges would welcome further
discussion of contact and for arguments to be put, with supporting
research evidence, which would enable appropriate contact plans to be
made in individual cases.
The need to focus on the welfare of the individual infant was also
highlighted by the contribution to the debate by Judith Masson,
Professor of Law at Bristol University. She noted that Re M (Care
Proceedings: Judicial Review) was a judicial review case brought before
the parents' baby had been born. Consequently, the guidance on baby
contact had been devised without the possibility of the child's
interests being placed before the court or any need for the court to
consider the child's welfare. Masson stressed the need to return to
the core principle of the Children Act 1989: the paramountcy of the
child's welfare. If the court is properly to address section 1(3),
the welfare checklist, then the specific needs of each infant must be
the focus for decision-making by the court. Although the human rights of
both parents and the infant under Article 8 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms 1950 must be
respected, these should not be considered to be the same. The European
Court of Human Rights has specifically recognised this in Neulinger and
Shuruk v Switzerland (App No 41615/07) [2011] 1 FLR 122:
The child's interest comprises two limbs. On the one hand, it
dictates that the child's ties with its family must be maintained,
except in cases where the family has proved particularly unfit. It
follows that family ties may only be severed in very exceptional
circumstances and that everything must be done to preserve personal
relations and, if and when appropriate, to 'rebuild' the
family. On the other hand, it is clearly also in the child s interest to
ensure its development in a sound environment, and a parent cannot be
entitled under Art 8 to have such measures taken as would harm the child
s health and development. (para [135])
The Children Act 1989 explicitly requires the court to focus on the
welfare of the individual infant. Consequently any 'rule of
thumb' for contact is inappropriate; rather the needs of each
infant, the circumstances of his or her care, the characteristics of the
contact parent and the resources available for contact all have to be
considered.
The research context
It is important to consider two very different sources of research
that are relevant to decision-making in relation to infant contact. The
first is research that specifically looks at infant contact. The second
is research from developmental psychology on the needs of infants and in
particular the needs of infants from inadequate or harmful backgrounds.
Both areas of research were represented at the President's debate
through contributions from Jenny Kenrick, a consultant child and
adolescent psychotherapist, and Dr Danya Glaser, a consultant child
psychiatrist. Kenrick's research consisted of interviews with
former foster carers/now adoptive parents of infants and contact
supervisors. Although the study was conducted within Coram's
Concurrency Planning project, the account of contact and its impact on
infants reflects widespread concerns for infants during care
proceedings. The findings give a vivid picture of the daily life of
infants and their carers resulting from almost daily contact. The first
striking feature was the impact on the infant of the transport
arrangements, often over some considerable distance. In Kenrick's
sample, carers themselves took infants to the contact centre, but most
infants in foster placements will be taken by taxi, often with different
escorts.
Kenrick (2009) found that contact was reported to be frequently
distressing for infants, even though contact was carefully supervised
and supported. In this sample the contact centre was at Coram and the
supervisor was highly experienced, skilled and consistent. More
typically in local authority children's centres, contact
supervisors will vary significantly. Some will offer high levels of
expertise but this cannot be guaranteed and changes in personnel are
common.
But the main concern for the infants from this study was the
constant disruption to their daily routine. Unsettled and distressed or
shut off and unresponsive infants would be brought back from contact,
perhaps settle and recover during the evening, only to set off again the
next day. This pattern was rarely limited to a specified period of
assessment but continued though proceedings, including where final
hearings were delayed. In contrast, on days with no contact it was
possible for carers to allow the infant a relaxed day in which feeding,
sleeping, play and interaction with carers could follow the
infant's natural rhythms--with both physical and psychological
benefits.
This picture of frequent contact linked to discontinuity and the
lack of an opportunity for infants to experience settled caregiving is
also reflected in the findings of a larger study conducted by a
multi-disciplinary team led by Humphreys and Kiraly (2011) at the
University of Melbourne. Their study reported very similar concerns
about the impact of travel and disruption on infants' lives and
also about the poor quality of much of the contact itself. In addition,
they found that there was no correlation between the frequency of
contact and the likelihood of return home. Their firm conclusion was
that it was the quality of contact that was more important to the
child's welfare and outcomes than the frequency. But they also
concluded that in an adversarial system, it was often difficult to reach
a developmentally sensitive agreement that prioritised the baby's
needs, giving the example of a parent being advised by her lawyer not to
agree to a reduction in contact as this would harm her chances of having
the baby returned.
The significance of contact arrangements for infants during
proceedings, as Glaser explained during the debate, lies in the fact
that infancy is a critical stage in child development. The first year of
life is crucial for all areas of development--physical, emotional,
cognitive, social and behavioural. To promote healthy development from
birth, all infants need a relationship with a caregiver who provides a
consistent, emotionally available, sensitive and responsive secure base.
A secure-base caregiver not only meets the infant's physical needs
but reliably comforts and reassures the infant when distressed or
anxious and enables the infant to feel safe enough to relax, play and
learn.
This developmental requirement is true for all infants, but many
whose future will be decided in care proceedings will come from
backgrounds that have already severely compromised their development.
Where there has been drug and alcohol use during pregnancy, there is
significant likelihood of some degree of damage having occurred to the
infant in utero. So even for infants removed at birth, there may be
problems that will affect all aspects of their ability to feed, to sleep
regularly, to be responsive to people and to enjoy play. For infants
removed from families in the early weeks and months of life, neglectful
or frightening family environments affected by violence may have left
infants already excessively fretful or shut off and unresponsive. The
most recent research has been able to demonstrate that the presence or
absence of consistently available and sensitive caregiving not only has
an impact on the mind of the infant but also has an impact on a crucial
stage of the infant's brain development. For these infants, the
purpose of intervention in infancy must be not only to ensure safety and
adequate care, but to provide a therapeutic environment in foster care
that can help to repair the damage before it has longer-term
consequences.
The most important issue, therefore, for infant development in
relation to contact plans is the degree to which contact arrangements
produce high levels of stress for the infant through discontinuity of
care and potentially insensitive care during contact. The foster carer
will be attempting to settle the infant into a regular pattern of
feeding and sleeping, as well as providing predictable responses to
their emotional communications. For infants who have not previously had
reliable physical or emotional care and who may have experienced parents
affected by substance misuse, mental health problems or violence, the
task of helping the hyper-vigilant infant to relax and to trust or to
enable the passive, frozen infant to become more responsive and engaged
is very challenging, even when care is continuous. If infants return
confused and distressed from frequent and often unsatisfactory contact,
it can considerably add to the difficulties in aiding their recovery.
The key point here is that enabling the infant to achieve
developmental goals during this critical period is of great value,
whether following care proceedings the infant returns home, is placed
with extended family members or is placed for adoption. If, for example,
an infant who is born with drug-related problems, then neglected or
ill-treated within the family, is not given the opportunity to thrive in
foster care during care proceedings, then return to the mother some
months later as a still damaged and developmentally delayed
14-month-old, who does not have regular sleep patterns and is
unresponsive, is unlikely to be successful. Similarly, if that child is
placed with grandparents or for adoption, the task of the new caregivers
may be all the more difficult and the child's further development
may be jeopardised from the start. The quality of foster care during
proceedings will also be affecting the infant's progress, and this
needs to be given priority by local authorities, but contact
arrangements, and the quality of contact, may help or hinder the quality
of foster care and the quality of the infant's development.
The role of attachment
In assessing the consequences of the contact arrangements for the
infant's relationship with the parent and foster carer, the
question of attachment will almost certainly arise in expert and other
evidence. Some basic principles need to be considered:
* Attachments during the first year are formed even in the context
of maltreatment, but in this context are likely to be disorganised. This
means that the infant seeks comfort from a caregiver who is also the
source of fear and thus remains in a state of high anxiety. Where
infants re-experience that state of trauma and anxiety at contact, they
may show distressed or frozen behaviour.
* Where young infants begin to experience secure base caregiving in
the foster home and form an attachment to the foster carer, this can be
a developmental benefit, regardless of outcome. Although infants'
attachments are selective in discriminating trusted caregivers from
strangers, they are able to build multiple attachment relationships, as
we see in ordinary families. However, transitions between
caregivers/attachment figures need to be handled sensitively--both
around contact and when infants return home or move to new families.
* When infants move from a foster family they do not
'transfer' the secure attachment to the parent or new
caregiver, but they have a foundation of trust in their own lovability
and the capacity of others to care for them, which will assist in
developing a secure attachment either with parents or substitute
caregivers.
Decision-making around infant contact plans during proceedings:
factors for the court to consider
The decisions around infant contact plans centre around three
important questions:
* What contact arrangements for the infant would be consistent with
their rights and development?
* What contact arrangements for the parents would be consistent
with their rights and development as a parent?
* What contact arrangements before and during proceedings would not
prejudge the outcome of the proceedings?
Contact plans for infants that are consistent with their rights and
developmental needs must take into account those factors that will
affect the parents' rights and capacity to develop as a parent.
Evidence and professional judgement on each factor listed below need to
be provided to the court when plans are agreed.
* The purpose of contact This needs to be made explicit in each
case. In most cases the purpose will include enabling the infant and the
parent to have the opportunity to retain or to build a relationship.
There may also be an expectation that parents will demonstrate or
improve parenting skills. The purpose of contact, and therefore the
plan, may also change at different stages in proceedings.
* Frequency and length of contact The goal is to achieve
good-quality contact that enables the infant to experience their parent
as a familiar figure with whom contact visits are enjoyable and
rewarding, and that enables the parent to interact with, care for and
enjoy their child--and to retain their role as parents. But this
frequency should be at a level that does not interfere with the
infant's need for consistent physical and emotional care in the
foster home and to form a positive relationship with the foster carer.
This must include sufficient recovery time from stressful experiences.
* Venue The venue must be welcoming and both infant and parent
friendly.
* Travel arrangements Plans should include discussion about
distance and the need for consistent escort arrangements that do not
create undue stress for the infant.
* Supervision of contact Supervision needs to be sensitive to the
needs of the infant and the parent, but when necessary will prioritise
the needs of the infant. This role is likely to include some combination
of supervision, facilitation, education, assessment and reporting.
* Support for birth relatives Practical support will be needed for
travel arrangements, but most parents will also need emotional support.
For all parents, the experience of caring for a child in a strange
environment while being observed is stressful.
* The role of foster carers Foster carers need to understand that
their role as caregivers is critical for the infant's development,
that contact itself is a necessary part of keeping the possibility of
reunification alive and that their recording of the impact of contact on
infants will be considered when contact plans are made and reviewed.
These factors inevitably interact, with frequency of contact and
supervision quality affecting the choice of venue, which in turns
affects transport arrangements. The whole package needs to be
considered, both in the initial plan and when it is reviewed during
proceedings. Thus contact needs to be actively considered throughout
proceedings, not just as a source of information about the parents, as
is currently often the case, but in order to protect and promote the
infant's development.
Conclusion
The developmental needs of any infant and the needs of vulnerable
infants in particular require conditions that are quite the opposite of
those that care proceedings often bring about: uncertainty, anxiety and
risk. These factors are shared by the infant, the infant's parents
and wider family, the foster carers and by the local authority, other
professionals and the courts. The challenge for local authorities and
the courts is to minimise the impact of these factors on the infant by
creating a stable, secure and sensitive set of arrangements, including
arrangements for contact, where everybody can keep the infant's
needs clearly in mind.
References
Humphreys C and Kiraly M, 'High-frequency family contact: a
road to nowhere for infants', Child & Family Social Work 16:1,
pp 1-11, 2011
Kenrick J, 'Concurrent planning: a retrospective study of the
continuities and discontinuities of care and their impact on the
development of infant and young children placed for adoption by the
Coram Concurrent Planning project', Adoption & Fostering 33:4,
pp 5-18, 2009
(1) This article was first published by Family Law (a publishing
imprint of Jordan Publishing Ltd) in the June 2011 issue of the journal
Family Law, at [2011] Fam Law 617.
Gillian Schofield is Professor of Child and Family Social Work,
University of East Anglia, Norwich, UK
John Simmonds is Director of Policy, Research and Development,
BAAF, London, UK
