In response to the Harm Report published back in June 2020, the government announced an urgent review of the legal presumption that continuing involvement with both parents is in a child’s welfare (introduced and added to the Children Act 1989 in 2014). This presumption had been identified in the report as contributing to a pro-contact culture in the courts, obscuring the focus on children’s safety.

We noticed that this ‘urgent’ review, subsequently scheduled by the end of 2022 (according to an answer to questions by the House of Lords Committee on 14 March 2022) had not appeared by the beginning of 2023.

We therefore asked some questions of the Ministry of Justice and the Family Justice Board under the Freedom of Information Act. We asked both organisations, because we weren’t sure which of the two was taking the lead. We didn’t get any reply from the FJB but we did receive a reply, within the standard time, from the MoJ.

Here are our questions, with which we supplied an explanation of why we were asking:

Questions:

1. What research was completed for this review between November 2020 and December 2022?
2. What research is still ongoing and not yet complete as at 31 December 2022?
3. What is the anticipated date of publication of the review?
4. Please provide us with the Minutes of all Family Justice Board meetings held since June 2022.

Context

The ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases – Implementation Plan’ published by the Ministry of Justice in June 2020 (more than two years ago) stated that:

‘Under the leadership of the Family Justice Board, we will review the ‘presumption of parental involvement’ which applies in certain private law children’s proceedings, and which requires the court to presume that the involvement of each parent furthers the child’s welfare, unless the involvement of that parent would put the child at risk of suffering harm. Our review will take into account that this applies not only to victims of domestic abuse but all children and parents in the private law children’s proceedings to which it applies. We recognise that there is further work to do to investigate how the balance is being met between the welfare of children and parent victims and the rights of children and parents to a family life.’

In evidence given on behalf of the Ministry of Justice to the HL Committee on the Children and Families Act 2014, on 14 March 2022, Neal Barcoe said, in answer to questions from Baroness Massey of Darwen, on this topic:

The panel released its report in 2020 and said about the presumption that the evidence indicated that it was being used inconsistently and was rarely disapplied in cases when perhaps it should be. It recommended that the Government undertake an urgent review of the presumption, which the Government, in their response to the harm panel’s paper, agreed to do. We announced the launch of a specific review on the presumption in November 2020. Unfortunately, because of the pandemic, there were delays in the commissioning of the research for this, but the work is well under way now and will be completed this year. That review is seeking to do three things. The first is a literature review looking at the evidence of the impact on child welfare in relation to contact with a parent in different circumstances and whether it is harmful or not. The second element of that work is a review of judgments to analyse where the presumption may have applied, whether it applied in that case, and what was taken into consideration, so that we have quantifiable evidence about what is happening in courts. The final element of the review is a qualitative piece of research to understand which particular groups have experienced decision-making on harm and parental involvement in these cases. The aim is to reach those who perhaps find it more challenging and difficult to engage in this sort of research. That work is currently ongoing, and the aim is then to look in the round at whether this presumption is working as intended, and, if not, what can be done about it.

Baroness Massey of Darwen:

When will that work be finished?

Neal Barcoe:

We are hoping to complete it this year. Initially, there were delays, because we had real difficulties when we went out to tender for different organisations. With things like the judgment analysis, we know that people had real concerns about how to do this safely in courtrooms and about working together. We are in a much better position to do that now and the work is under way. I am hopeful that, certainly by the end of this year, the results of the review will be out.

We note that there are no records of the Family Justice Board publicly available online since minutes of meetings in February and June 2022, neither of which mention this topic.

Despite the statement made in March 2022 that the review would be available by the end of last year, we are unable to find any further public information on the progress of the review.

Here are the replies from the MoJ:

I can confirm that the MoJ holds all of the information that you have requested. Taking your points in order:

1. What research was completed for this review between November 2020 and December 2022?

The following research was completed between November 2020 and December 2022:

• i. Literature Review – Evidence Review into harm and parental involvement
• ii. Qualitative Research – Understanding the experiences of marginalised parents in the family court.

The reports relating to the research detailed above are currently in development and will undergo detailed review in line with Government Social Research (GSR) guidance. All reports relating to the review of the presumption of parental involvement will be published together with the outcome of the review later this year.

2. What research is still ongoing and not yet complete as at 31 December 2022?

The following research is ongoing and not yet completed as at 31 December 2022

 Judgment Analysis – How do courts apply the presumption of parental involvement?

3. What is the anticipated date of publication of the review?

The review, including all research reports, will be published later this year. A publication date for the review will be announced in due course.

4. Please provide us with the Minutes of all Family Justice Board meetings held since June 2022.

[There is a long explanation here about the Board minutes being subject to formal approval before publication, so the MoJ can’t give them to us now because none have been approved since June. We have just copied their final sentence to this answer.]

… Please be advised, the minutes from the last Family Justice Board meeting held in November 2022 will be published by the end of February 2023 and will be available at the following link: Family Justice Board – GOV.UK (www.gov.uk)

What have we learnt?

First, it appears that the FJB is not leading this review at all, but it is still with the MoJ. There is, in any event, no public record of any activity by the FJB since June 2022. Our Question 4 and the reply therefore don’t really matter in the context of the review.

The literature review, that has now been completed but not yet publshed, is referred to in the HL Committee evidence and in the MoJ reply. The review of court judgments (second in the evidence and third in the reply) is still ongoing, despite being ‘well under way’ in March 2022.

The third piece of research, according to the HL Committee evidence, is ‘a qualitative piece of research to understand which particular groups have experienced decision-making on harm and parental involvement in these cases. The aim is to reach those who perhaps find it more challenging and difficult to engage in this sort of research.’ This is presumably ‘understanding the experiences of marginalised parents in the family court’. We’re not sure what this means, because the Harm Report didn’t suggest that the presumption was being applied to particular groups of parents; it suggested that it was endemic. However, it’s good to know that part of the research is complete and that all we are waiting for is an analysis of judgments.

Image: thanks Jeff Djevdet at flickr

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