Section 1(2A) of the Children Act 1989, as amended in 2014, states that, with regard to applications for child arrangements orders under Section 8:
A court … is as respects each parent … to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.
Subsection (2A) goes on to say that “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time. And subsection (6) says that this applies to a parent who can be involved in the child’s life in a way that does not put the child at risk of suffering harm, a parent being treated as such unless there is some evidence before the court in the proceedings to suggest involvement of that parent in the child’s life would put the child at risk of suffering harm.
A ’presumption’ in law means that the court uses that as its start point, although there may be evidence to ‘rebut’ it i.e. to show why it shouldn’t apply in a particular case. Many people have thought that adding a presumption to the principle of the child’s welfare being paramount has been confusing.
The government announcement on 21 October that this presumption of involvement would be repealed was accompanied by publicity paying tribute to Claire Throssell, who has been a powerful campaigner for Women’s Aid on this issue. Claire’s two sons, Paul and Jack, were murdered 11 years ago by their father during a contact visit, despite known risks. They were aged 12 and 9. Claire told journalists that the presumption had been endangering children’s lives for more than 30 years. We think she was referring to the implementation of the Children Act 1989 back in 1991, although in fact the subsection containing the presumption was not in force until late 2014, and the order for contact in Claire’s case almost certainly predated this. This addition of a statutory presumption has certainly been identified as one factor that has contributed to or emphasised a pre-existing ‘pro-contact culture’. Other considerations that are taken into account by the court when making child arrangements are listed further down in this post.
Where did the presumption come from?
The definition of parental responsibility introduced by s 3 of the Children Act 1989 was intended to acknowledge the rights and responsibilities of both parents that would continue after separation. However, a proportion of families continued to resort to court to resolve disputes about where children should live, and how much time they should spent with the parent with whom they are not living.
The 1989 Act was amended to add the presumption following debate on the Family Justice Review, which was published in 2012. There had been calls by some campaigners for a change to the law to ensure 50-50 shared care arrangements between parents on separation. Although the Family Justice Review didn’t recommend 50-50 care, discussions led to the introduction of a presumption of involvement with Parliament introducing sub-sections 2A and 2B to the section on the welfare principle through the Children and Families Act 2014. Subsequent research tended to show that judges referred to the presumption relatively rarely, relying more on earlier well-established principles that promoted contact and were applied when considering safe arrangements.
The Harm Report published in 2020, however, identified the presumption as a factor in cases where children might be suffering harm through court decisions, and recommended that the presumption be reviewed. The government at the time announced that the review would take place ‘urgently’.
During an inquiry into the whole of the 2014 Act by a House of Lords committee in 2022, the presumption was again considered, and the Committee was assured by Ministry of Justice civil servants that the review was being taken seriously and progressing. However, we at the Transparency Project made a series of Freedom of Information requests over the years which never did receive a clear reply as to when publication would take place.
There are probably a range of reasons why pressure to publish eventually succeeded in October this year, including a new proactive MP in Claire Throssell’s constituency and the recent report from the office of the Domestic Abuse Commissioner for England and Wales (DAC) which we wrote on here.
How was it reviewed?
The report and supporting documents are here – https://www.gov.uk/government/publications/presumption-of-parental-involvement-review
They comprise a 63 page final report; a summary for children and young people; reports on the impact of the presumption on ethnic minority families and on parents where there were allegations of child sexual abuse; a literature review; and reports on an analysis of court judgments. Some stakeholder workshops were held. It had been planned to include some research with disabled parents about their experiences, but the MoJ couldn’t find a partner organisation that represented a sufficient number of parents in private law applications.
The judgments study looked at the judgments (or ‘facts and reasons’ if given by magistrates) in 245 cases. The findings were that:
- The court rarely orders that a parent should have no involvement in a child’s life. This happened in only three cases. But 8% of judgments were for supervised contact and 10% for indirect contact only.
- The presumption of parental involvement is discussed inconsistently in judgments.
- There was inconsistent detail in the way harm was discussed in over half of the judgments/written facts and reasons.
We’d like to clarify that the reports on the experiences of parents from ethnic minorities and on experiences of parents where there were issues of child sexual abuse were about two completely separate groups. We’re not sure why they were two ‘strands’ of the same study. Most of the 19 parents (mothers and fathers) in Strand 1 reported experiences of negative stereotyping during the court process although generally found the judges and eventual outcomes fair. The parents (10, all mothers) in Strand 2 had felt judged on their emotional state and had often been accused of parental alienation; generally they felt there was professional disbelief in the likelihood of child sexual abuse. The Review commissioned these two strands because it ‘sought to ensure the voices and experiences of those parents whose views are less often heard in family justice research inform the findings’ although it’s not explained why these two specific groups were selected. The Final Report does transparently highlight the limitations of the qualitative research with small numbers of parents, and the lack of participation by children, although there was engagement with the Young People’s Family Justice Board.
The research was completed in April 2024, 18 months ago. Most of it seems to have been undertaken by 2023. This means that recent developments such as the Pathfinder Pilot and the DAC report are not covered.
Unsurprisingly:
The Review encountered several challenges regarding availability, access and quality of data on the family justice system. These included the variable quality of data, difficulty accessing administrative data, difficulty accessing electronic court files,variable levels of detail in written judgments, and a lack of published judgments. (p iv Final Report)
What does the Review tell us?
We recommend taking a look at the report but have tried to extract the main findings, as follows:
There was a consistent narrative across a range of studies, over time and using different methods, concluding that the outcome of court cases was usually for children to spend time with both parents and that orders placing very strict permanent restrictions on parental involvement were relatively uncommon.
The presumption itself was not expressly referenced on a regular basis when judges and magistrates made decisions about contested child arrangements orders.
However, there was also clear evidence that court practice, culture, case law and legislation came together to create an approach that was focused on facilitating the involvement of both parents in a child’s life.
In cases involving a risk of harm, the most likely order remained unsupervised direct contact. There was evidence that even in cases where there were indicators of high-risk, parental involvement, including direct contact, was often still pursued. This raised a concern about whether courts are sufficiently considering the risk of harm to which children may be exposed.
The courts’ approach to risk, and the requirements established by law and practice to make findings on allegations, didn’t appear to align with the reality of harm that many children and victim parents face.
Although the presumption couldn’t be linked to outcomes, it appeared to be part of a system and structure that prioritised involvement between children and both parents.
The apparent high incidence of orders for direct parental involvement in the context of allegations of domestic abuse and other indicators of harm suggested that decisions made by the court in some cases did leave children at risk of negative welfare outcomes. The evidence and data were not robust enough to estimate the proportion of children this affected, or the extent of risk faced by children.
The lack of clear evidence about the child welfare outcomes of different forms of parental involvement ordered by the court was concerning. Courts are required to make complex decisions and, in many cases, judges and magistrates are forced to weigh the potential harm of involvement with a parent who poses a risk of harm against the potential harm of not being able to have a relationship with that parent. Without a clear understanding of the potential impacts of their decisions, the courts’ application of the presumption may rely on an understanding which does not capture the nuances of potential for harm.
The Children Act 1989 outlines multiple stages for the courts to consider the risk of harm a parent can pose and requires the court to consider the individual circumstances of the child. However, the Review’s evidence suggested that decision-making in the family court was driven by assumptions about child welfare being furthered by the involvement of a parent, meaning that an individualised focus on the specific child’s welfare could be lost.
Evidence on child participation in private law proceedings pointed to a lack of routine participation of children in proceedings and a selective approach to hearing and responding to their views.
What effect will this announcement have?
The government has stated that the legislation will be amended to remove the presumption ‘when parliamentary time allows’ which does sound rather vague. However, we feel that now there is an evidence base that the presumption has been unhelpful or even dangerous, and lawyers know that it doesn’t find favour with government following this comprehensive overview, judges are even less likely to refer to it when they are making decisions about child arrangements. One of our legal bloggers attended a family court hearing just two days after the announcement was made, and found that one of the barristers was already supporting his submissions about contact with reference to the presumption being removed.
As we noted above, and as emphasised in the Harm Report and the DAC report, the presumption is not a stand-alone legal principle that judges follow when considering child arrangements. The position is clearly explained by Lord Justice Peter Jackson in this case, Re G (Intractable Dispute) [2019] EWCA Civ 548 [paras 44-46]:
The governing principles in proceedings of this kind are, of course, the welfare principle, the ‘effect of delay’ presumption, the parental involvement presumption, the overriding objective, and the parties’ rights under ECHR Articles 6 and 8. In the present context, they have on many occasions been gathered together in authority of long standing, as for example by Black LJ in J-M (A child) [2014] EWCA Civ 434 at [25]:
(1) The welfare of the child is paramount.
(2) It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom he or she is not living.
(3) There is a positive obligation on the State and therefore on the judge to take measures to promote contact, grappling with all available alternatives and taking all necessary steps that can reasonably be demanded, before abandoning hope of achieving contact.
(4) Excessive weight should not be accorded to short term problems and the court should take a medium and long term view.
(5) Contact should be terminated only in exceptional circumstances where there are cogent reasons for doing so, as a last resort, when there is no alternative, and only if contact will be detrimental to the child’s welfare.
This clear guidance is echoed in the presumption [our emphasis] in s.1(2A) Children Act 1989, introduced in October 2014, that unless the contrary is shown the involvement of a parent in the life of the child concerned will further the child’s welfare. But by s.1(6) the presumption does not apply if involvement would put the child at risk of suffering harm.
So the presumption of parental involvement is very strong, but it is not absolute. As in all matters relating to the upbringing of a children, welfare prevails.
Transparency
The Report says:
Greater transparency and access to data are key to being able to analyse the workings of the family court system and evaluate changes and improvements. The approach to transparency in the family courts is committed to promoting open justice while ensuring the anonymity of those involved to enable effective public scrutiny and strengthen confidence in judicial decisions. Since January 2025, new measures have been introduced across England and Wales encouraging courts to make Transparency Orders, where journalists or legal bloggers have attended hearings. These orders provide a clear framework for journalists and legal bloggers to know what they are able to report on, balancing enhanced transparency with the protection of vulnerable children and families. The Government has also begun work to support the judiciary on increasing the number of family court judgments that are published in anonymised form. [p 41]
Once again, finding out what’s going on in family courts has proved to be really difficult because of the lack of meaningful data. While we may sound like a broken record on this, it’s very discouraging to find that so little progress on accountability has been made since the President’s ambitious Transparency Review in 2020.
Image: Arrows, thanks Dean Hochman, flickr
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