Last week heralded two critical changes to child law. In part one we looked at the impending restrictions on parental responsibility in certain circumstances.
Once someone is identified as a parent, there is a presumption that their involvement in their child’s life is a good thing. But not for much longer…
Repealing the Presumption of Parental Involvement
Currently, the Family Court operates under a presumption that “unless the contrary is shown, [the] involvement of [a] parent in the life of the child concerned will further the child’s welfare.” This is derived from section 1(2A) of the Children Act 1989.
However, last week the Government announced a decision to repeal this presumption. This signals a shift away from what many call the “pro-contact culture” of the Family Court. Once this shift is made, parents in court proceedings will no longer be able to successfully claim that it is best for the child to have them in their lives, as the default legal position, purely because they are a parent. This will have a dramatic effect on how the Family Court deals with applications for contact, including indirect and supervised contact.
Protecting Children from Harm
The change originates from a 2020 Ministry of Justice report on “Assessing Risk of Harm to Children and Parents in Private Law Children Cases”, completed by a panel of experts. The panel concluded that the presumption must be “reviewed urgently in order to address its detrimental effects.” This led to a review focused on the presumption alone, upon which groups such as Women’s Aid and Both Parents Matter (formally, Families Need Fathers) advised. The decision was that the Ministry of Justice will legislate to repeal the presumption, when Parliamentary time allows.
Many will celebrate this change as a vital step in protecting children. Perhaps the most striking argument for the necessity of the change is the experience of Claire Throssell, MBE. Ms Throssell’s two sons were murdered at ages 12 and 9 by their father during contact. Contact had been court-ordered, despite Ms Throssell telling the court of serious domestic abuse. One of Ms Throssell’s children had told Cafcass he did not want to see his father, however the other child never got the chance; he was murdered on the day of the Cafcass officer’s visit. Ms Throssell says repealing the presumption “will save so many children’s lives.”
Balancing Child Protection with Legal Rights and Principles
The legal mechanism for the change is presently unclear. Question marks remain over how the new legislation will be worded in a way which does not conflict with the fundamental human right to family life (Article 8, Human Rights Act 1998) or other family law principles. Currently, the presumption is already restricted by the caveat that “parents” only means parents who “can be involved in the child’s life in a way that does not put the child at risk of suffering harm” (section 1(6)(a) Children Act 1989). Further, the presumption only applies “unless the contrary is shown;” and it often is, be it by evidence of domestic abuse, child abuse, substance misuse or other relevant facts.
Critics of the current legislation say the contrary is not shown often enough. However, many commenters would argue that the current presumption, taken together with the caveats, is correctly worded. They may say the culprit of unsafe child arrangements is not the presumption itself, but a misapplication of the presumption, caused by systemic failure to properly understand domestic abuse and what life is really like “on the ground” for those at the heart of the case: the children.
How Ison Harrison Can Help
We will be keenly monitoring how these Governmental declarations end up translating into the letter of the law. Keep an eye out for further updates from our blog.
Ison Harrison has a highly experienced Family Law team who can help with a range of legal issues surrounding the safety of children, particularly where domestic abuse is present. If you would like to speak to us about an issue concerning your child and their wellbeing, contact our friendly Family Law team on 0113 284 5000 or email family@isonharrison.co.uk.
