Deputy Prime Minister, David Lammy, has said the government plans to “give every child the best start in life” and that trust in the justice system will be rebuilt “by putting victims first and ensuring that the protection of children is never compromised.”
Part of this means ending the presumption of parental involvement, which came into effect almost exactly 11 years ago. In that relatively short time, it has become clear that – whilst rebuttable – the presumption has been part of a pro-contact culture within the family courts.
Whilst I have no doubt that judges’ decision making is driven by their view of a child’s welfare requirements, the government’s recent review makes it clear that the court’s ‘no stone unturned’ approach has left the system intrinsically geared towards fostering involvement for a child with both parents after separation. For many children, that may well further their welfare. But that is not always the case – especially in respect of a parent who has caused harm to a child or poses a risk in some other way – and the evidence shows that courts have been ordering contact even in these cases. In short, children have been left at risk of harm. Indeed, the high-profile cases of Claire Throssell (whose children, Jack and Paul, were tragically killed by their abusive father, and who has campaigned tirelessly for this change), Kate Kniveton (a former MP who endured 5 years of proceedings before an order was made ruling that her abusive ex-husband could not have contact with their children) and Kristoffer White (a serial rapist who was initially allowed by the Family Court to have unsupervised contact with his young child, leaving the child’s mother to go through the ordeal of an appeal) demonstrate the woeful inadequacies of the current system.
The recent announcement represents a watershed moment for family law and a long-overdue recognition that children’s safety must always take precedence over parental rights. It also sends a message that parental involvement is a conditional privilege, not a right-to-be-assumed.
The repeal represents a fundamental rebalancing of priorities, placing child welfare above procedural presumptions, and will align the approach with broader principles of child protection and risk assessment. There will be an end to decision makers falling back on a default bias towards contact and each case will need to be carefully assessed, taking a fact-sensitive, welfare-centric approach.
Of course, there may be unintended consequences: there could be an overly-cautious approach which denies legitimate and emotionally important relationships; there could be a greater burden on the courts arising out of the parties putting in more evidential work (and we all know how the Family Court is already creaking at breaking point); and there is a real need for training.
Lawyers will need to re-frame applications and responses, sharpening their focus on the evidence of harm or risk, and on how the child’s welfare is advanced. Risk assessments will need to be properly produced and interpreted. Judges will need to overcome implicit biases or habits, and case law inertia could blunt the intended shift. Litigants will require access to resources and effective representation to ensure critical case preparation and, if necessary, the involvement of experts.
Clearly, one size does not fit all and there is much to be done by the government, which at this stage has committed to legislating the change only “when Parliamentary time allows”. It has already taken five years, following the report of the Expert Panel on Assessing Risk of Harm to Children and Parents in Private Law Children Cases, to get to this stage. It needs to be actioned without delay, alongside plans to restrict the exercise of parental responsibility in cases where a person with parental responsibility has been convicted of a serious sexual offence against any child and where a child is born of rape, and the restriction of parental responsibility where one parent kills the other (the latter of which is already provided for by statute, but is yet to come into force).
There is also a need for a full inquiry into legacy decisions made under the current regime. Countless families have been failed by a system that was supposed to protect them, and we owe it to those children and parents to examine how these failures occurred and what redress can be provided. An investigation would also provide crucial learning to inform the development of the new framework and ensure that past mistakes are not repeated.
The success of this change will rest on how it is implemented. This is an opportunity to create a family court system that is truly child-centred, trauma-informed and responsive to the complex realities of family breakdown. But it needs to be properly resourced and accompanied by cultural change.
Richard Westley is Legal Director at Higgs LLP
