Cambridge Family Law Practice

Back in the autumn of this year the Government announced plans to repeal the ‘presumption of parental involvement’ in the Children Act 1989. That measure was added to the Act a decade ago, in 2014, and came into force on 22 October that year. The relevant paragraphs state:

“A court … is … to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.”

The paragraph continues with the carefully worded explanatory line:

“…‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.”

The latter was included to prevent previously absent parents from claiming they had a right to equal time with children of the family, regardless of circumstances, and to ensure that judges retained the discretion to tailor contact to the individual needs of each child.

The term ‘involvement’ refers to both direct and indirect contact. Indirect contact typically means email, telephone or video calls, while direct contact is as the name suggests time spent face-to-face. The latter may be supervised or supported, sometimes by the other parent but more often by a third party, if there any concerns about the other parent’s behaviour.

Since its introduction the presumption in favour of parental involvement has remained controversial, with critics arguing that it has encouraged family courts to make overly generous contact arrangements even when there were doubts that time with the other parent was really in the child’s best interests. Others, meanwhile, argued the presumption didn’t go far enough and that 50% care for each parent should be the default presumption, as it is in some other jurisdictions.

In 2020 an initial Government review came down in favour of the first set of critics, describing the presumption as “not fit for purpose”. A strong “pro-contact” approach had been formed in the family courts, it found, explaining:

“Research with parents, often mothers who were victims of domestic abuse, found that they felt pressured and coerced by professionals into agreeing to contact irrespective of the circumstances in their case … Similarly, research with legal representatives found they would often advise mothers to agree to some form of contact to appear ‘reasonable’ or to avoid ‘losing’ their case.”

The Ministry of Justice has now completed its own review of the legislation, and in a recent report published findings that echo the earlier research:

“The evidence that the Review identified suggested that courts take a ‘no stone unturned’ approach and are intrinsically geared towards fostering involvement for a child with both their parents after separation. For some children, such decisions could further their welfare. However, where a parent poses a risk, or has caused harm to a child, children’s welfare was not always supported by parental involvement. The apparent high incidence of [contact] orders where there were indicators of risk suggested that the courts were ordering direct contact between children and parents who have caused or pose a risk of harm.… an individualised focus on the welfare of each child could be lost.”

Consequently, the Ministry announced:

“Following the completion of the Presumption Review the Deputy Prime Minister has announced his intention, when parliamentary time allows, to amend the Children Act 1989 to remove the presumption of parental involvement.”

The Ministry of Justice report is available here.

Simon Bethel, one of the partners here at Cambridge Family Law Practice, observes:

“It is rare for legislation to be amended in this manner within such a relatively short time span between an addition to an Act and its intended repeal. This really does reflect the level of concern around the presumption that has been ‘in play’ over the last decade. The bottom line from this is that each child’s lived experience of their relationship with their parents is different, and thus needs to be properly and fully assessed on that basis, and cannot be generalised through a presumption.”