Laura Jones, Trainee Solicitor in the Family Department at Rowlinsons Solicitors discusses the recent Government report in relation to the repeal of the presumption of parental involvement and what this means in relation to child arrangements.
What is the presumption of parental involvement?
In 2014, the Children and Families Act introduced a presumption whereby the court were required to assume that the involvement of both parents in a child’s life will benefit the child, unless there is evidence to the contrary. This would mean that any application to court for a child arrangements order would automatically presume that involvement of either parent in the child’s life, whether through direct or indirect contact, would be in the child’s best interests, providing that there are no safeguarding concerns. It would then be down to the concerned parent and often survivors of domestic abuse themselves, to put forward their position as to why such contact would put the child at risk of suffering harm.
Why is this presumption being repealed?
Last week, the Government revealed that a significant change is coming to family law in England and Wales with the repeal of the presumption of parental involvement, something that has been long campaigned for by domestic abuse organisations, noting that it would assist in protecting both children and parents who are survivors of domestic abuse. The Government review found that the presumption was rarely challenged, even when there were clear indicators of harm and even that the seriousness of abuse, especially if it was historic, was minimised. It was therefore not often that a court would order that no contact was in the child’s best interests, given that there was such emphasis on the presumption of contact. The aim of this reform is to ensure that children are protected within the family courts, with Baroness Levitt KC stating that “The horrors of domestic abuse can scar a child for life. It is apparent from our research that the presumption of parental involvement can, in some cases, lead to contact being ordered even in cases where there has been domestic abuse. Our priority must always be children’s welfare. Being a parent is a privilege not a right: the only right which matters is a child’s right to safety, and this Government is determined to ensure that that is at the heart of every decision made about each and every child”.
How will the courts now deal with child arrangement proceedings?
Whilst it has not yet been revealed what the presumption is to be replaced with, the courts are directed to assess each case individually, focusing solely on the child’s welfare. The courts will continue to use the welfare checklist to consider the child’s wishes and feelings (age dependent), the nature of their relationship with each parent, the impact of contact on the child’s wellbeing and whether there is any history of abuse or neglect. This will hopefully ensure that the orders being made in relation to child arrangements are in the child’s best interests, rather than focusing on ensuring that both parents are involved when this may not be right for that child.
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