We’ve sent in a series of requests under the Freedom of Information Act about the review of the presumption of parental involvement since the ‘urgent’ review was announced by the government in 2020. We have been asking about the continued delay in publishing the review and last wrote about this in January – here.
You can read about the initial stages of the review here.
Section 1(2A) Children Act 1989 (introduced in 2014) says that in a child arrangements application, the court is to presume, unless the contrary is shown, that involvement of each parent in the life of the child concerned will further the child’s welfare. This legal presumption has been a factor in what has become known as the ‘pro-contact culture’.
The review has now been published. It will take us a while to read it all. There are several documents on the strands of the study and the implications. The headline is – unsurprisingly – that the government’s intention now is to repeal the presumption.
Here are the overall conclusions of the Review:
The evidence the Review identified suggested that courts take a ‘no stone unturned’ approach and are intrinsically geared towards fostering involvement for a child with both their parents after separation. For some children, such decisions could further their welfare. However, where a parent poses a risk, or has caused harm to a child, children’s welfare was not always supported by parental involvement. The apparent high incidence of orders where there were indicators of risk suggested that the courts were ordering direct contact between children and parents who have caused or pose a risk of harm. Evidence around judicial decision-making suggested that the presumption was not routinely referenced by judges and magistrates when they made decisions about contested child arrangements orders. When it was referenced, the presumption was highlighted as only one of a number of factors the court must consider when making child arrangements orders. However, the Review’s evidence suggested that, in practical terms, assumptions about child welfare could drive decision-making and an individualised focus on the welfare of each child could be lost. Whilst family justice practitioners generally made every effort to centre child welfare across their practice, the evidence of the Review suggested that system practice and the resulting court decisions could leave children at ongoing risk of harm.
The final report calls for greater transparency in the family justice system as being key in analysing the workings of the court and evaluating changes and improvements.
We’ll post some links and write an explainer shortly.