The Government’s recent announcement that it intends to repeal the presumption in respect of parental involvement regarding the arrangements for their children, some eleven years after it was introduced, marks a significant shift in family law across England and Wales.
What’s Changing?
Since March 2014, the law regarding children has worked on the basis that it is in a child’s interests to have both parents involved in his or her life ‘unless the contrary is shown’. The statutory presumption defines ‘involvement’ in this context as meaning ‘involvement of some kind’ that can be ‘direct’ (such as face-to-face time with the child) or ‘indirect’ (such as writing letters or sending gifts).
The presumption will be removed ‘when Parliamentary time allows’.
As the Government’s press release notes, ‘the current law includes safeguards to restrict involvement where it’s detrimental to a child’s welfare’. These safeguards are chiefly set out in what is known as ‘Practice Direction 12J’ which is a very detailed set of rules that applies where domestic abuse issues occur in child arrangements cases. The body of previous court decisions (case law) also makes clear that a child’s welfare should always be determinative when the court decides on what the arrangements should be regarding his or her parents.
Why Is This Important?
Deputy Prime Minister David Lammy has emphasised that the decision will prioritise children’s safety, wellbeing, and their right to grow up free from harm. The Government’s position is that there is evidence the statutory presumption of parental involvement can perpetuate domestic abuse.
The removal of the presumption will likely affect the way certain cases and reports are presented (including by CAFCASS, the organisation tasked with preparing welfare and other reports for the Family Court in child arrangements cases).
However, the underlying principle regarding child arrangements cases, i.e. that arrangements will only be ordered for a child where those arrangements do not negatively affect the child’s welfare, will not change. Essentially, the relevant section of the Act (section 1 of the Children Act 1989) will revert to its pre-March 2014 wording.
Charlotte Beck, Partner in our family law team, comments:
‘The removal of the presumption in favour of both parents being involved in a child’s life will likely be both welcome news to some parents and an upsetting development to others. Ultimately, judges in the Family Court will continue to apply the welfare principle and the relevant checklist, though clearly it will no longer be possible for parents to base their arguments on there being a presumption in law that the involvement of both parents in the child’s life will further the child’s welfare.’
Voices from the Frontline
Claire Throssell, MBE, a survivor ambassador for Women’s Aid, described the presumption’s removal as a crucial step in tackling domestic abuse and improving outcomes for children. Farah Nazeer, Chief Executive of Women’s Aid, welcomed the decision, calling the presumption ‘archaic’ and highlighting the risks it posed to women and children. She stressed that contact with an abuser can be deeply harmful, affecting children’s wellbeing, behaviour, development, and, in the most extreme cases, their lives.
On behalf of Women’s Aid, Ms Nazeer has stated the presumption’s removal is an ‘important first step’ but that further action is needed to overturn the deep-rooted ‘pro-contact’ culture in the Family Court.
Putting Children First
Justice Minister Baroness Levitt KC summed up the rationale for removing the presumption of parental involvement as follows: ‘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 is at the heart of every decision made about each and every child’.
Get In Touch
Charlotte Beck is a Partner in the Family Department. She specialises in children and divorce law, financial proceedings, international divorces and high net worth cases.
If you’d like to speak with Charlotte or one of our other experienced family lawyers, please don’t hesitate to contact us by calling 0330 111 3131 or completing our online contact form.
