Family breakdown is rarely smooth, and some couples struggle more than others when deciding on post-separation arrangements, particularly when it comes to their children.
It is ideal for parents to be able to decide child arrangements post-separation between themselves. This creates a more positive foundation for co-parenting. The assistance of family solicitors, mediators or divorce coaches can of course also be sought and does not necessarily mean that communication has broken down. Some parents want to ensure they have covered everything they need to, others want to understand what options they have to formalise any agreement. Family lawyers always have it in mind that separated parents will remain in each other’s lives moving forward.
Nevertheless, not all parents can reach agreements without assistance and require the intervention of either lawyers or the family court.
The Family Court and Family Practitioners are governed by the Children Act 1989, the Children and Families Act 2014, and the Family Procedure Rules, in particular PD12J in the context of domestic abuse. The principles that arise from the rules and legislation are:
- The child’s welfare must be the paramount consideration of the court
- In considering welfare, the court must have regard to the welfare checklist
- Absent welfare concerns: the court must presume that a child’s life will benefit from involvement from both parents
When reviewing individual cases, the court should consider all the relevant factors, including a thorough investigation of any allegations of previous, continuous or prospective harm, domestic abuse or other risks where they are relevant to the time the child spends with each parent.
The presumption of parental involvement has come under scrutiny in the last decade, specifically the risks posed to parent and child survivors of domestic abuse. It has been argued that, in some cases, the rights of abusers have come before the welfare of the child and that parents have used the system as a vehicle for further abuse.
In 2020, a report was published by the Expert Panel on Assessing Risk of Harm to Children and Parents in Private Law Children Cases (“the Harm Panel”). The Harm Panel’s report explored evidence presented by those with personal as well as professional experience of the family court that the presumption of parental involvement has detrimental effects.
On 22nd October, the MoJ released its Review of the Presumption of Parental Involvement. The report examines:
- How presumption is applied in the family courts
- The findings of the Harm Panel
- The review into the presumption launched in November 2020
- The impact of presumption
- The court’s ability to understand risk to children in proceedings
In its conclusion, the report determined that the Government has decided to repeal the presumption of parental involvement – noting that the welfare of the child remains the court’s most important consideration.Nevertheless, there remain potential concerns with the proposed reforms. Most, if not all, family practitioners will have had at least one case involving false allegations of domestic abuse. This can be hugely damaging to a parent-child relationship. Where there is no presumption of parental contact being in the best interests of the child, preventable mistakes will be made, which could have irreparable impact on the children.
The court does not always get it right, and it is always distressing when that happens. However, the answer to ensuring those cases are the absolute exception lies in training, funding and resource. This would help to ensure that Judges are able to give cases the time they deserve and that there are enough Judges to deal with the cases.
In addition, Judges and practitioners should be given ongoing specialist training in respect of harm, the risk of harm and the potential impact on a child. This training should also go beyond the issue of domestic abuse and should cover religion, culture, gender, sex and sexuality. There is little more important than making a decision in respect of someone’s family, so those involved in doing so should have prior experience in family law and should have specialist training on all potential issues.
It is vital that children remain the centre of all decisions made about how much time a child spends with each parent and a proper risk assessment is carried out by all involved. In her response to the decision, the Chief Executive of Women’s Aid, Farah Nazeer, called for mandated specialist domestic and sexual abuse training for all judges. I wholeheartedly agree with this proposal, but truly believe we need to go further as outlined above
We may have some months to wait before the implementation of the reform but it remains essential that family practitioners continue to be vigilant; removal of the presumption of contact is a significant change and will come with its own unique issues.
Shanika Haynes is a Partner at Stowe Family Law
