Times are changing, pro-contact to pro-child - the Presumption of Parental Involvement

This month, the Ministry of Justice released its Review of the Presumption of Parental Involvement Report, signalling a significant shift in family law in England and Wales. The report outlines the government’s commitment to repealing the statutory presumption in private law children cases that a child’s welfare is furthered by the involvement of both parents, when parliament time allows,

Introduced in 2014, the presumption requires courts to assume that the involvement of both parents in a child’s life would benefit the child’s welfare unless there is evidence to the contrary. Evidence to the contrary is essentially evidence that the involvement would put the child at risk of suffering harm. The review, commissioned in response to the 2020 Expert Panel on Assessing Risk of Harm findings, scrutinised how this statutory presumption contained in section 1 of the Children Act 1989 has been used in practice. 

In reality, research reveals that the presumption was rarely explicitly referred to in decisions of magistrates and judges. The presumption has been a source of controversy, where criticism has primarily focussed on how it has fostered a “pro-contact” culture in the family law system. In some cases, the research suggests that this pro-contact culture has led to the paramountcy principle, which promotes a child’s safety and welfare, being overshadowed. 

The review highlights that, despite the legal presumption, fewer than one quarter of the 245 cases analysed expressly referenced it. Even in those cases, contact was often ordered even when allegations of family violence or other significant safety concerns were present. Critically, the research highlighted that the voices of the children, particularly those who have been victims of abuse or feel unsafe in the presence of a parent, have not been adequately heard in many of these decisions. Addressing this gap in giving children a platform to express their concerns will be one of the key challenges moving forward.

The government’s intention to repeal the statutory presumption is likely a necessary step in order to truly honour the legislated child welfare paramountcy principle, though it does come with implications. Without the presumption that both parents’ involvement is automatically in the child’s best interests, cases will need to be solely assessed on their own circumstances. This shift also raises concerns regarding parents’ rights to maintain relationships with their children. A key challenge will be ensuring that parents feel heard and engaged in the court process in a system that may now be perceived as “anti-parent”. There may be concern that the “good-enough” level of parenting is no longer satisfactory and tougher outcomes may lead to an increase of supervised or or no contact orders.

The review’s message is clear, parental involvement is not always beneficial and more thought needs to be given to safe involvement. From a New Zealand perspective, our own family law reforms have grappled with a similar challenge of balancing meaningful parental relationships versus the legislated mandatory consideration of a children’s safety being paramount (s5 Care of Children Act 2004). This New Zealand legislation also contains two principles which closely align with the presumption of involvement seen in the United Kingdom. These being that the child’s care development and upbringing should be the primary responsibility of their parents (s 5(b)) and that a child should continue to have a relationship with his or her parents (s 5(d)).  As New Zealand continues to reflect on its own legal framework, the United Kingdom’s decision to move towards an entirely “pro-child” safety model will be an important development to observe.

While the government has made its intention to repeal the presumption clear, the report recognises that it will take time for the legal system to fully adapt to this change. It is likely that entrenched assumptions will need to be re-examined, and the voices of children, particularly those at risk, must be brought to the forefront in all family law decisions.