The UK government has announced plans to repeal the legal presumption of ‘parental involvement’. This confers a presumption as a starting point in each case, that a child benefits from involvement with both parents. This was embedded in the Children Act 1989 and has been a regular reference made in children cases for decades. The move represents one of the most significant reforms to Family Law (particularly Child Arrangements) in a long time, and marks a fundamental shift in how the Court may approach cases involving separated parents moving forward. It is expected to significantly impact the Court’s outcome in situations where there are concerns about abuse or risk of harm.
The presumption of parental involvement was introduced originally to ensure that, following separation or divorce, both parents retained an active role in a child’s life where possible and practical. This was consolidated into law on the back of research that confirmed children generally fare better emotionally, socially, and developmentally when both parents are involved in their upbringing. It was hoped that such legislation would discourage one parent from unreasonably preventing contact, and promote shared responsibility for parenting (and the notion of equality) even after a relationship breakdown. Of course, this did not surface without criticism. Practitioners will be aware that ‘pro-contact culture’ is often debated, and how far the presumption can be used to enable contact where it may cause harm. The Family Court are often left with the balancing act of maintaining contact or protecting survivors of domestic abuse – the ease or difficulty of which will depend on the circumstances of the case.
While the principle is undoubtedly well-intentioned, the application in practice has often been controversial. The starting position that ongoing involvement of both parents would ‘further the child’s welfare’ unless there was evidence to the contrary, was often not the safest outcome. Of course, for families with no safeguarding concerns, this generally worked as intended. There have been innate difficulties in victims trying to evidence, and bearing the burden, of persuading the Court that contact would be harmful.
There have been significant concerns about the Family Court re-traumatising parents who are required to re-live past events in their extremities, and often not doing enough to safeguard the children for several months due to Court backlogs and fear of recrimination for ceasing interim contact entirely.
Numerous reviews, including the Ministry of Justice’s 2020 ‘Harm Panel Report’ have found that the presumption did in fact create barriers to protecting children from abusive parents, even if it did not intend to do so. An overemphasis on contact had contributed to unsafe arrangements in certain cases, with children and victims being placed at risk because the Court felt constrained by the default presumption. Without rehearsing the cases, practitioners will be all too familiar with tragic cases presented on the news after neglect and abuse have unfolded for too long, that have been borne out of a Child Arrangements Order.
Domestic abuse charities have widely welcomed the reform as a crucial step toward putting children’s safety back at the heart of family justice. The general consensus from practitioners who deal with these cases every day, is that future reform must be implemented carefully and supported by wider backing from the Court with continuity of approach.
Our director, Hannah Newberry, commented: ‘the removal of the statutory presumption is for parents who have found the Family Court system arduous and unhelpful, against a significant backdrop of domestic abuse. Practitioners generally agree that the presumption did not prevent hostile parents from ceasing interim contact, but served more of a symbolic function as a ‘fallback’ provision in law for parents seeking more involvement than they currently had. On the other hand, there is always a risk that the removal of this provision could embolden hostility and allegations that aren’t quite at the threshold where the Court should be reducing contact. The proof will be in the cases we see emerging, after the reforms are put into place. Ultimately, nothing is going to remove the anxiety of an abused parent having to litigate for safe contact provisions, whether or not their outcome is more or less guaranteed.’
Whilst not unfolding yet, the Family Court will no longer start with an assumption that contact with both parents is beneficial. Instead, they will focus solely on each child’s welfare, safety, and individual circumstances – and if that leads to a determination that one parent’s contact is likely to be more harmful than beneficial, that is what will be recommended. Cases involving allegations of domestic abuse, coercive control, or emotional harm will come before the Family Court with greater judicial freedom to limit or deny contact.
Without clear guidance on what is expected to change, and sufficient funding (and availability) for CAFCASS and Family Court services, the removal of the presumption could lead inconsistent decision-making. This does not assist practitioners in terms of managing expectations and providing advice as to outcomes. The removal of the presumption is likely to have minimal effect on the law in the interim, or families that enter the Court’s remit on a regular basis. The Court must be ready to provide properly resourced support, resolve backlogs to engage urgent cases with timely responses, and consider how this will run parallel with existing cases without any reforms insofar as the burden of proof or fact-finding criteria (largely K v K). A full appraisal is going to be difficult without observing real outcomes and comparing them with similar historic cases.
At Alun Jones Family Law, we will continue to guide clients through the law in practice for Child Arrangements issues, and provide advice tailored to individual circumstances.
Alun Jones is a specialist Family Law solicitor and the founder of Alun Jones Family Law.
Qualifying in 1994, he has worked exclusively in Family Law since 1997.
After gaining extensive experience within London, Alun returned to Wales and established his boutique practice in 2005. He advises separating families on financial matters and Children Act disputes, combining legal expertise with a practical and client-focused approach.
