The Government has recently announced an important and significant change in family law that will completely reshape the way in which courts decide child arrangements. The principle that it is generally in a child’s best interests to have both parents involved in their life is set to be repealed.
Over the years, our advice has often begun with the presumption that a child should spend time with both parents. The idea of equal involvement and shared care was often raised in parliamentary debates. The Family Justice Review in 2011 recommended against an ‘equal time’ presumption and instead opted for an ‘involvement’ presumption, and in 2014 this was enshrined in family law legislation via an amendment to the Children Act 1989. It can be said that the presumption of parental involvement is one of the guiding principles in children’s cases.
So, what is the presumption of parental involvement?
Provided that it is safe and in the child’s best interests, a child’s welfare is best served when both parents are involved in their life. This could be directly, through supervised, supported or unsupervised contact, or indirectly through calls, messages or letters. Although the presumption is one of the fundamental principles considered in family courts, it does not override the principle that a child’s welfare is always paramount when deciding what is best for the child. In this regard, the court must have regard to the welfare checklist, which includes important factors and circumstances such as the child’s wishes and feelings, the child’s needs, and any risk of harm.
Why the change?
A recent Government-commissioned review identified that, in practice, the presumption of parental involvement has contributed to a ‘pro-contact’ culture in family courts, meaning that contact is often ordered even when there is evidence of risk.
There are concerns that children are being placed in unsafe environments where courts make orders for direct, unsupervised contact in cases where there are credible safeguarding concerns, due to an excessive focus on maintaining contact.
Legislation to remove this presumption would allow the courts to make decisions about child arrangements based solely on what promotes each individual child’s welfare.
Is the change a good thing?
For a long time, the presumption of parental contact has created tension between protecting children and honouring parental rights. By altering the legal starting point, courts will instead begin their considerations from a more neutral position and will decide cases based on the full circumstances, rather than a presumption that may overshadow child welfare. This reform means that courts will place a child’s safety and welfare above any default assumption of dual parental involvement.
If you would like to find out more about how we can support you with your family law requirements, please visit our website at www.my-local-solicitor.com, or contact us at hello@my-local-solicitor.com or on 01948 302332 / 01766 884024.
