At the end of October, the Government announced that they would repeal the presumption of parental involvement – currently enshrined in the Children Act 1989 – some five years after the Harm Panel report recommended an ‘urgent review’. The government has not committed to a timeframe however, simply saying that this will happen ‘when parliamentary time allows’.
Families therefore find themselves in a somewhat limbo – between the Government’s position which can be interpreted as that they feel the presumption may be unsafe and therefore should be repealed, and the fact that the presumption will remain law (and thus be applied by the courts), as and until it is formally repealed by Parliament.
Background
The presumption of parental involvement came into force in October 2014 and has often been contentious in cases where there have been findings (or admissions) of domestic abuse. The presumption was debated at length prior to its introduction, and was considered to be a limited, rebuttable presumption that the involvement of both parents was beneficial to children (unless the court determined that it was not consistent with the child’s welfare). Crucially, this did not incorporate a presumption of a child spending equal time with their (separated) parents and reiterated the paramountcy of the welfare principle.
A key concern was the balance of ensuring there were appropriate safeguards for children – to avoid cases where the presumption could essentially trump a child’s safety, but also to ‘reinforce the importance of children having an ongoing relationship with both parents after family separation’ – a stated purpose of the amendment.
The current law
As mentioned above, the very first section of the Children Act 1989 is devoted to the protection of the welfare of children and sets out that ‘when a court determines any question with respect to the upbringing of a child….the child’s welfare shall be the court’s paramount consideration’ – this is known as the welfare principle and is applied as the most important statutory principle in every case.
In 2014 the presumption was added which sets out, in summary, that ‘the court is to presume, unless the contrary is shown that involvement of ‘some kind’ …will further the child’s welfare’. This is further qualified in sub section 6 which makes clear that the presumption will apply when a parent can be involved in the child’s life in a way ‘that does not put the child at risk of suffering harm’.
Further FPR Practice Direction 12J – which is applied in cases where there are allegations of domestic abuse, states that: ‘The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm.’
Notwithstanding this qualification and clear practice guidance, it has been argued that there have been cases where the (mis)application of the presumption led to ‘dangerous’ decisions being made in certain cases.
Evolution and criticism
Some of the criticism following the introduction of the presumption, which was highlighted in the Harm Panel Report 2020, was that a ‘pro contact culture’ had developed – in that rather than rebuttable, the presumption was being treated as a ‘starting point’, and was potentially being misapplied in court proceedings, detracting from the court’s focus on the child’s individual welfare and safety.
There were many reports from both survivors of domestic abuse and children who were the victims of abuse, that their voices were not taken into account and also that parents who were survivors of abuse felt it gave ‘an abusive parent power over the non abusive parent’.
Half a decade has passed since the panel made its recommendation (that an urgent review of the presumption was needed) and this was supported vociferously by the Domestic Abuse Commissioner who has been consistently critical of the presumption, arguing that it has led to unsafe contact orders. The government’s announcement of the repeal has been welcomed by the Domestic Abuse Commissioner as a ‘pivotal step’.
Conclusion
In just over a decade, we have moved from the introduction of a rebuttable presumption to address calls for a more balanced approach to contact for separated families, to a reported ‘pro contact culture’ arguably leading to unsafe orders, to now – repeal.
The repeal has been heralded by some as a significant and vital shift of approach. However, others say that appropriate safeguards for children already exist and are applied. In the meantime, families remain in a limbo period where the presumption is still in place, but is due to be repealed at some unprescribed time in the future. In the interim, this could lead to arguments about the application of the presumption and create further delays in what will already be protracted proceedings.
The impact of parental involvement in cases where there have been findings (or admissions) of domestic abuse needs to be considered rigorously. Domestic abuse campaigners see the planned repeal of the presumption as a much needed step towards further protecting children.
Jemimah Fleet is a Knowledge Development Lawyer and Sarah Jane Boon is a Partner at Charles Russell Speechlys
