The presumption of parental involvement is to be repealed, a move hailed by campaigners as a victory for survivors of abuse. But does it go far enough to provide protection for children? And is there a risk that the repeal may cause some unintended consequences?
The presumption of parental involvement was a relatively recent addition to the Children Act 1989, being added in 2014, along with changes to terminology from “residence” and “contact” to the more neutral “child arrangements” to describe the division of a child’s time. At the time, campaigners had sought a presumption that a child should spend equal time with their parents on separation, or alternatively “meaningful” time, but this was rejected by the Government, with the Family Justice Review Final report of 2011 citing concern that any impression of a parental “right” to any amount of time with a child would undermine the central principle of the Children Act 1989 that the welfare of the child is paramount. The presumption as enacted means that the starting point ‘ for the court, is that parental involvement in a child’s life will further the child’s welfare, unless there is evidence to suggest that the involvement of that parent would put the child at risk of suffering harm. The presumption was intended to help create a balance between parents on separation, emphasising the principle that one parent was not able to exclude their ex-partner from their child’s life without good reason, and to emphasise the importance of both parents in a child’s life, ideally minimising acrimonious disputes.
While these may have been laudable aims, in practice, the presumption does not appear to have served the purpose intended. Litigation between parents in private law children cases has not significantly decreased, despite an increased drive towards non-court dispute resolution.[1] The recently published review of the presumption noted that, in judgments examined by the panel, it did not appear that Judges were basing decisions on the presumption. Rather, where it was referenced, it was one of the matters considered by the court alongside the other matters set out in the welfare checklist in s.1(3) of the Children Act 1989.
Presumption as tool of abuse
It does, however, appear that the presumption has impacted the expectations of litigants, with evidence that some perpetrators of abuse were using the presumption as a tool to continue their control and abuse through subjecting survivors to lengthy court proceedings and ongoing abuse through contact arrangements. In 2020, the “Harm Panel” report was published[2], setting out concerns about the harm that the “pro-contact” culture of the Family Justice System was causing to survivors of abuse. Survivors reported abusers using the presumption as a legal weapon, placing emphasis on that parent’s right to a family life above the child’s welfare and right to be safe from abuse. The Harm Panel noted that the presumption reinforced the notion that any exceptions to the “norm” of contact should be read narrowly. The report further set out many instances of respondents reporting a sense of “court ordered abuse” and that abuse had at times worsened after a court order was made providing for contact.
The recent Government review echoes these concerns. However, it noted that the presumption was only one element of a family justice system whose design and practice promotes parental involvement at every stage of a case involving arrangements for a child. While s.1 of the Children Act 1989 sets out that, when considering arrangements for a child, their welfare will be “paramount”, at times “welfare” has been equated with “spending time with both parents”. In practice, there has tended to be a starting point of contact, with the parent the child lives with being required to prove that it is not in the child’s interests should they oppose it. Even where domestic abuse is proved, the courts have tended to see a cessation in contact between a parent and a child as exceptional and a measure of last resort.
Is repeal the answer?
It is hoped that the repeal will serve to emphasise the paramountcy of the individual child’s welfare, without any gloss in terms of which outcome would “normally” be in the child’s best interests, such that decisions will be based solely on what is best for the individual child, rather than a general rule favouring parental involvement. Since the coming into force of the Domestic Abuse Act 2021, there has been a greater recognition of children as victims of abuse in their own right. This change to the law ought to continue to place the welfare of the individual child at the heart of decisions, while also prioritising the safety of the child and the parent they live with and it is anticipated that we may see this reflected in future decisions of the court. However, it may be that the greater impact will be seen in terms of parents’ expectations as to how a child’s time is to be divided.
Potential challenges remain:
On a practical level, without a presumption, a parent who is anxious about maintaining their relationship with their child if they move out of the family home may be reluctant to leave, fearing that if they do so, they will have no “rights”, resulting in an unpleasant (and frequently toxic) environment at home continuing until they are satisfied that concrete arrangements are in place;
There are occasions where the children have their primary home with a parent who is not prioritising their welfare, or where that parent uses the prospect of the child living with them as a further tool of control. In those instances, the lack of a presumption may create additional difficulties, and less certainty and guidance for those trying to navigate a separation.
One of the important recent developments in the family justice system is the introduction of “Pathfinder” courts, designed to have a more problem-solving, investigative approach, bringing the experience of the child to the fore, rather than the current more adversarial, parent-centric system. Those with experience of the Pathfinder pilot have largely reported positive experiences and it is hoped that a renewed emphasis on assessing the needs of the individual child combined with the expansion of child-focused approaches like Pathfinder may help create a system that better protects children and survivors of abuse while recognising the value of meaningful parental relationships where safe and appropriate.
While the extent to which repealing the presumption of parental involvement will affect court decisions regarding spending time arrangements may be limited, time will tell whether it changes the approach of parents. In any event, it is a welcome reminder that there is no “one size fits all” approach when considering the best interests of children. Each family’s circumstances will need to be considered on the basis of what is best for that particular child.
Kate Clark is a Partner and Head of the Family team at Mishcon de Reya
[1] According to Gov.UK data, 51,481 private law cases were started in 2024, compared to 42,292 in 2014, albeit there were 54,675 in 2013 https://data.justice.gov.uk/courts/family-courts/#table-tab-courts-family-private-law
[2] Assessing Risk of Harm to Children and Parents in Private Law Children Cases
