The Government has recently announced its plan to repeal the presumption of parental involvement from the Children Act 1989.
The presumption was first introduced in 2014 through the Children and Families Act.
Section 1(2A) of the Children Act currently states: ‘A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of a child concerned will further the child’s welfare’. What that means is that when considering whether to make or discharge a section 8 order the court will presume (unless the contrary is shown) that the involvement of a parent in the child’s life will further that child’s welfare. Whilst the section creates a strong presumption in favour of parental involvement, it is not absolute and a child’s welfare will always be the paramount consideration.
The Government’s announcement comes on the back of the final report in the Ministry of Justice’s Review of the Presumption of Parental Involvement. That report considered that repeal of the presumption was an important step in addressing the “pro-contact culture”. Whilst the Review had identified that the presumption was not routinely referenced by judges and magistrates in contested cases for child arrangements orders, and that the child’s welfare remained the central consideration, the Review did find evidence that; (a) the courts took a ‘no stone unturned’ approach and were “intrinsically geared towards fostering involvement for a child with both parents after separation”, and (b) the statutory presumption appeared to play a role in this ‘no stone unturned’ approach. There was an overarching concern that there were some cases where courts were ordering direct contact between a child and their parent who had either caused or posed a risk of harm (whether physical or emotional) to that child.
The Review did stress that a child’s welfare will remain the court’s paramount consideration and that the welfare checklist in section 1(3) of the Children Act will continue to be a central pillar of decision making.
In announcing its decision, the Justice Minister, Baroness Levitt KC said:
“The horrors of domestic abuse can scar a child for life. It is apparent from our research that the presumption of parental involvement can, in some cases, lead to contact being ordered even in cases where there has been domestic abuse. Our priority must always be children’s welfare. Being a parent is a privilege not a right: the only right which matters is a child’s right to safety and this government is determined to ensure that that is at the heart of every decision made about each and every child.
Repealing the presumption is a key part of our package of family court reforms which will protect children”
The proposed repeal comes as part of the Government’s broader Plan for Change to rebuild trust in the justice system and to put victims first and ensure that the protection of children is never compromised. Whilst clearly representational of a policy shift, and of an intent to prevent the prioritisation of contact at a risk of perpetuating child abuse in the worst form of cases, it remains unclear how significant a change this will turn out to be in practice. Each case will continue to turn upon its own facts and a child’s welfare will remain the paramount consideration. At present there is no timescale as to when the proposed will be enacted.
For more information about our family law team please contact clerks@becket-chambers.co.uk
