Government Repeals Presumption Of Parental Involvement

The government has announced plans to repeal the presumption of parental involvement from the Children Act 1989. This presumption, introduced in 2014, is found at s1(2A) of the Act and states that the court should "presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare". This law has been criticised in recent years for putting vulnerable children and survivors of domestic abuse at risk.

The reform follows years of campaigning by domestic abuse survivors and advocacy groups, most notably Claire Throssell, whose sons Jack and Paul were tragically murdered by their abusive father. He had been granted contact with his children for five hours a week, despite Ms Throssell's evidence to the family courts that he had previously threatened to kill them and himself.

Arguably, the "pro-contact" culture widely identified within the family court arises from judicial interpretation of the law, rather than the legislation itself. The Act states at s1(6) that the presumption only applies to a parent "If that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm", and does not apply where "there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement."

However, the government review concluded that the approach of the courts is "intrinsically geared towards fostering involvement for a child with both their parents after separation", and that direct contact was being ordered between children and parents who have caused or pose a risk of harm. The review recognised that this was due to a number of factors, not simply the presumption. Hopefully, however, this proposed change in the law will go some way towards redressing the balance and help protect against cases such as that of Claire Throssell in the future.

However, repealing this presumption might also have some unintended consequences. There is a legitimate concern that some parents who are not motivated by the best interests of their children, or whose concerns about their former partner are not justified, may understand the removal of the presumption as signalling that they need not promote contact between their children and the other parent. This could lead to prolonged litigation, which is rarely in the best interest of the child. In other cases, the parent being denied contact, often the father, may struggle to bring a contact application to court at all, especially as legal aid is not available, potentially resulting in the loss of their relationship with their child.

Whilst the repeal of the presumption is a welcome step towards rebalancing the family court's approach to contact with perpetrators of abuse, it must be accompanied by robust messaging around the importance of parent-child relationships where those are safe.

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