The UK Government plans to repeal the presumption of parental involvement

This follows the publication of the Ministry of Justice’s (MoJ) final report. The MoJ said that new evidence shows that assuming it is always best for a child to have both parents involved in their life can perpetrate abuse.  The decision has therefore been widely welcomed by domestic abuse organisations as a vital step towards addressing long-standing shortcomings in the family justice system’s response to victims and survivors of abuse.

The current law

Under the Children Act 1989 (“the Act”), there is a presumption that a parent’s involvement in a child’s life will further that child’s welfare, except where there is evidence that such involvement would place the child at risk of significant harm. The term “involvement” covers any form of direct or indirect contact, including telephone calls, cards or gifts. In practice, this means that the family courts starting point is that parental involvement benefits a child’s welfare.

Although the presumption can be rebutted, this must be proven to the court, which can place an unfair burden on victims of domestic abuse to demonstrate that their former partner poses a risk to them or the children. In some instances, this has led to unsafe contact arrangements for children who have witnessed abuse and for survivors of domestic abuse.

When will the presumption be repealed?

No timescales have been announced. However, the Prime Minister, Sir Keir Starmer, has confirmed that the repeal “is going to happen” and will be presented to Parliament “as soon as Parliamentary time allows”.

What will this mean in practice?

The repeal represents a major shift in the way the family courts approach decisions about child arrangements. Judges will still need to consider the parties’ Article 8 rights (right to respect for private and family life) and the welfare checklist under section 1 of the Act, but they will no longer start from an assumption that a parent’s involvement benefits the child.

It remains to be seen how this change will affect cases in practice. This announcement has been widely welcomed by professionals working in the family justice system. It is hoped it will prevent the Courts from being compelled to order contact between a child and a parent where there is a history of domestic abuse or child abuse. It is also expected to enable the Courts to issue and enforce “no contact” orders more effectively in cases involving perpetrators of abuse.

However, there are likely to be complex scenarios — for example, where one parent is implacably hostile or makes unsubstantiated allegations to limit the other’s involvement. In such cases, parents may face new challenges in demonstrating why they should be involved in their child’s life without the benefit of the existing presumption.

Family law experts

Our team have considerable experience in dealing with child arrangements involving domestic abuse and can help navigate this complex area of law. Should you need further advice, please call our Family team on 01202 636 223 or email MatrimonialDept@ellisjones.co.uk.