When the government confirmed the new Courts and Tribunal Bill will repeal the presumption of parental involvement earlier this month, the reaction was overwhelmingly positive. But Jake Mitchell, senior associate at Freeths, warns the repeal is “a dangerous red herring” that heightens the potential for emotional harm to the children it is designed to protect.
Section 1(2A) of the Children Act 1989 sets out the presumption of parental involvement. It provides that unless the contrary is shown, a parent’s involvement in the life of their child will further their welfare. It is this provision that the government now intends to repeal.
Although the welfare principle remains untouched, repealing section 1(2A) removes the statutory signal that, where safe, a child typically benefits from a relationship with both parents. That simple but important message – that parental involvement generally promotes a child’s welfare – would be gone.
It is understandable why this change has been greeted with enthusiasm. Campaign groups and charities working to combat violence against women and girls (VAWG), a problem that is widespread and ingrained in society, are understandably focused on the potential safety benefits they hope it will bring. For many, the removal of the presumption represents an opportunity to reduce the risk that children or survivors are exposed to harm through court‑ordered contact.
Their priority is to ensure that no parent or child is pushed into unsafe arrangements merely because the law appears to ‘expect’ involvement.
Will the repeal increase safety?
However, as I said in the Today’s Family Lawyer article discussing these developments, repealing the presumption will not, in my view, increase the safety of children or parents affected by domestic abuse. The courts of England and Wales already take that responsibility extremely seriously.
Between the relevant statute, comprehensive safeguarding guidance, established authorities and, crucially, Practice Direction 12J, I regularly see cases where allegations of domestic abuse cause contact to stop immediately until the facts can be properly investigated and the risks properly assessed.
The system may not be as fast as parents wish it were, but on the whole, erring on the side of caution is a protective factor.
PD12J: The courts’ existing safeguard
Practice Direction 12J is central to this. Domestic abuse features in a significant proportion of private law cases, often estimated at around 50–60%, and PD12J is engaged throughout.
Paragraph 12 requires the court not to make interim child arrangements or contact orders where safeguarding information is missing, unless the order is necessary to protect the child or safeguard them from harm. In other words, when allegations are raised, and the court lacks full information, the parent accused of abuse is already starting from a position where the court must not make an order. That is a substantial in‑built safeguard.
Further, paragraph 21 reinforces that where a child may be at risk from domestic abuse, the court should consider directing Cafcass to prepare a Section 7 report before making decisions about contact. This ensures the court receives professional, independent input before potentially exposing a child or parent to risk. And, when the court is asked to consider contact before allegations have been determined, paragraph 25 makes clear that no interim order should be made unless the court is satisfied both that it is in the child’s interests and that it will not expose the child or the other parent to an unmanageable risk of harm.
In practice, when domestic abuse is raised, the court and Cafcass pay attention. Contact will stop unless and until the court can be persuaded that some form of safe, managed contact can take place, through professional supervision if at all. Only once the facts are known, and the risks fully assessed, will the court contemplate longer‑term arrangements.
The reality for parents in the interim
It is common for a parent on the receiving end of allegations to tell me that the process is unfair. They may feel strongly that they have done nothing wrong; they may have their own allegations; and they often question why their time with their child must stop. They ask why they are not ‘innocent until proven guilty’. These are already difficult conversations.
The temporary cessation of contact is painful and emotionally disruptive, and in some cases may not ultimately reflect the truth of what has happened. But when taking a step back, most parents can see that the system must prioritise safety above all else. Without that cautious approach, judges risk making errors that could expose children or parents to serious harm.
The temporary pause is not a judgment, but a protective measure that already exists.
Why repeal may create more problems than it solves
This is why, in my view, repealing the presumption of parental involvement is a mistake. It will not change how courts apply PD12J, the welfare checklist, or safeguarding. Judges will continue to do what they already do; assess risk carefully and prioritise safety.
What the repeal will change is the message. It removes the statutory recognition that a child usually benefits from the involvement of the parent they do not live with. It risks repositioning that parent not as someone whose involvement could be good for their child, but as someone who must now prove their worth. It subtly reshapes the way parents may view their own position and how they believe the court views them. It risks increasing conflict, fuelling feelings of marginalisation, and shifting the narrative from ‘involvement is good unless unsafe’ to ‘involvement must be justified’.
That shift does not improve safety.
Protection must remain a priority, but the system already protects
Victims of domestic abuse unquestionably need strong protection. I have spent more than a decade representing all genders, in various family contexts, in securing protective orders against abuse. Nothing in this analysis is intended to diminish the importance of preventing VAWG or shielding survivors from further harm.
But family law has always been about balancing competing harms. Stop contact too readily and children lose valuable relationships that cannot always be rebuilt. Order contact when unsafe and the consequences can be devastating.
My concern is that repealing the presumption will only increase the former without improving our ability to prevent the latter. The courts already protect those who need protection. What is now at risk is the quiet but important recognition that both parents matter and that, where safe, a child is generally better off having both in their life.
About the author
Jake Mitchell is a qualified solicitor and has specialised in family law throughout his career. His particular expertise comes in complex Children Act proceedings, often representing parents looking to reunite with their estranged loved ones. These cases are often intertwined with domestic abuse protection cases and complicated financial remedy proceedings. Jake often represents spouses and parents in court proceedings across the country and is as comfortable on his feet before a circuit court judge as at his desk preparing case papers for his clients.
