As a family solicitor working daily within the current framework of the Children Act, I’ve seen how the presumption of contact operates in practice and where reform risks unintended consequences. The government’s proposal to repeal the presumption of parental contact in private law children proceedings has been framed as a victory for victims of domestic abuse.
But as someone who deals daily with the complexities of family separation, I see the risks of a one-dimensional reform that could cause as much harm as it aims to prevent.
The current legal framework of the Children Act 1989 establishes that, unless there is evidence to the contrary, a child’s welfare is generally served by having a relationship with both parents. It’s not an absolute right – the child’s welfare remains the court’s paramount consideration, but it provides an important starting point for judicial reasoning and parental expectations alike.
The proposed repeal seeks to remove even that starting assumption. It stems from concerns that the presumption can sometimes be misapplied, leading courts to give contact priority over safety where abuse is alleged. Those concerns are valid and serious. Yet, in seeking to protect some, we risk eroding the rights of many others and, crucially, the best interests of children who benefit from stable, meaningful relationships with both parents.
In practice, the repeal could make it easier for one parent to marginalise the other through conflict, hostility or alienation, long before any factual findings are made. The balance of power in already-fractured families could shift decisively towards whichever parent controls the narrative first. For many of the parents I represent, the damage is done not by the final order, but by the months or years of reduced contact while allegations remain untested.
We have to ask – are we improving the system, or simply changing the lens of bias? Removing the presumption won’t automatically create safer outcomes. If anything, it risks encouraging a culture of pre-emptive restriction , “better safe than sorry” where cautious courts may err towards limiting contact even in the absence of proven harm.
The real issue isn’t the existence of the presumption. It’s the inconsistency in how the courts apply it. There is a world of difference between a well-reasoned judgment that weighs contact against risk, and one that treats the presumption as a tick-box exercise. Better judicial training, early case screening, and robust fact-finding are far more effective tools than legislative deletion.
We should also not ignore the impact of the Pathfinder model currently being rolled out in several courts, including Birmingham. Designed to fast-track cases and reduce delay, it often shortens opportunities for fact-finding and cross-examination. In that context, removing the presumption of contact may create a perfect storm – less scrutiny, less guidance, and more room for subjective interpretation.
This is not about preserving outdated ideals of “shared parenting”. It’s about recognising that, in most cases, children thrive when they have access to both parents who love them, even when those parents no longer love each other. A presumption of contact doesn’t mean a presumption of safety, nor should it. But neither should safety concerns become a pretext for exclusion where no risk has been established.
The debate shouldn’t be framed as “safety versus contact”. It should be “safety and stability”. Both are essential to a child’s welfare, and both deserve legislative protection.
If we truly want to reform the family courts, we need nuanced, evidence-based reform, not reactionary measures that swing the pendulum too far in the other direction. Removing the presumption may silence one problem, but it will amplify others such as parental alienation, protracted litigation, and children growing up with fractured identities.
The law must protect the vulnerable, but it must also uphold fairness. We can and should do both.
Sana Saddique is Managing Director of Collective Law Solicitors
2 responses
Good points. I hope that final decisions, and changes to legislation, will not be made without more detailed discussion. Article 9.3 of the UN Convention on the Rights of the Child sets out that “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”.
The current rebuttable presumption in CA 1989 reflects those rights, which I understand are also supported by research that indicates that children do best when they are able to have positive relationships with both parents. There is still much training to be done in terms of the understanding of domestic abuse and other aspects of adult relationships that can affect a child’s welfare adversely. Sometimes, and sometimes with terrible, tragic, consequences the current system fails children. It is clear that change is needed. However, I am yet to be convinced that removal of the rebuttable presumption is the best way to resolve matters.
Thank you for raising the issue, Sana, I hope that there will be opportunities for consultation, reasoned debate, information sharing and consideration before final decisions are made. We need effective solutions – and, if necessary, changes to both primary and secondary legislation – to the issues of concern and work to promote the welfare of all children before the Court in family proceedings. After all, this must be the paramount consideration.
The system ignores DV and minimises and silences victims, that’s the whole point! The supposed safeguards put in place to promote ‘safe’ contact DO NOT WORK. Consequently, it the right decision to remove presumption.