Addendum Article – Government announces plan to repeal the presumption of parental involvement from the Children Act 1989

Charlotte McDonald and Sophie George-Moore reflect on the Government's Announcement which came just after the summary article which can be accessed here.

On 22 October, the Government issued a press release announcing a plan to repeal the presumption of parental involvement from the Children Act 1989[1]. The Government cites new evidence which shows that prioritising contact can perpetuate child abuse in the worst cases, and aims to stand up for victims and restore faith in the justice system. 

The Government release follows “the tireless campaigning of Claire Throssell, whose children Jack and Paul were tragically killed by their abusive father 11 years ago” [2]. It also comes after the release of the DAC report “Everyday Business: Addressing domestic abuse and continuing harm through a family court review and reporting mechanism[3]”, which highlighted continuing failures of the family justice system to protect victims of domestic abuse and children, often as the result of a “pro-contact culture”. 

Family practitioners are acutely aware that in making any decision about a child’s upbringing, whether in public or private law, the court’s paramount consideration is the child’s welfare (s1(1) Children Act 1989). 

The present presumption, which the government intends to repeal, is captured in s1(2A), and relates to the granting of orders to regulate living arrangements, contact, restrictions on parental repsonsibility and acquiring parental responsibility, and reads: 

“A court.. is, as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare”. 

S6(a) defines “parent” for the purposes of s1(2A) as (a) “within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm”, and (b) “is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement”.

Objectively, the statute sets out a clearly rebuttable presumption to parental involvement in the instance that parent poses a risk of harm to the child; underscoring the paramouncy principle. It must therefore be questioned what has led to the decision to remove the statutory presumption in favour of parental involvement in its entirety.

The Government release states “the repeal is founded on the clear principle that every child deserves to be safe – yet new evidence published today shows that assuming it’s always in the best interest of a child to have the involvement of both parents can perpetuate abuse”. This follows years of inquiries, review, and propsed reform of the Family Justice System.

The Harm Panel Report in 2020 showed that the family courts have long struggled to recognise domestic abuse in all its forms, and fail to respond appropriately to allegations of domestic abuse when deciding contact arrangements. The Report concluded a pro-contact culture, adversarialism, resource constraints, and silo working were the main stuctural barriers that impeded safe outcomes in child arrangements proceedings in the family courts.

The DAC’s most recent report “Everyday Business: Addressing domestic abuse and continuing harm through a family court review and reporting mechanism” has been summarised by the authors of this article in a separate post[4], but in short concludes that in 73% of observed cases and 87% of case files (across three courts in England and Wales) it was only considered to be a “live issue” in 42% of hearings. The report concludes the sidelining of these issues continues to be impeded by the four barriers identified by the Harm Panel Report (pro-contact culture, adversarialism, resource constraints, and silo working), and is being perpetuated by minimisation of abuse in the family court system, retraumatisation through inadequate processes, silencing children’s voices in favour of pro-contact culture, and unsafe, unsustainable and harmful orders as a result, inter alia.

Under the General Principles of PD12J (4), “Domestic abuse is harmful to children, and/or puts children at risk of harm, including where they are victims of domestic abuse for example by witnessing one of their parents being violent or abusive to the other parent, or living in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with and being victims of domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.”[5]

Under section 3 of the 2021 Domestic Abuse Act, a “victim of domestic abuse” includes, but is not limited to, a child who is a victim of domestic abuse where domestic abuse has occurred between parties related to the child and the sees or hears, or experiences the effects of, the abuse.

This introduction was a positive step forward for the recognition of children in domestic abuse, but the presumption remains and conflicts the wider amendments.

The Government release cites “although the current law includes safeguards to restrict involvement where it’s detrimental to a child’s welfare, removing this law sends a clear signal that the Government is placing the wellbeing and safety of children at the forefront of decision making”. By removing the wording in its entirety, the repeal intends to emphasise the paramouncy principle and the rights of children over and above the rights of parents, particularly those who pose a risk of harm.

Whist this may seem an infringment on ECHR Article 8 Rights – the right to respect for your private and family life – the case law in this area has already considered compatibility with the Welfare Principle in s1(1) Children Act 1989. Dame Butler-Sloss in L (Contact:Domestic Violence) & Ors [2000] 2 FLR 334 observed that “Article 8(2) provides the crucial protection for the child…who also has rights and interests under the Convention….In Hendricks v Netherlands (1982) 5 EHRR 223, the court held that where there was a serious conflict between the interests of a child and one of its parents which could only be resolved to the disadvantage of one of them, the interests of the child had to prevail under Art 8(2). The principle of crucial importance of the best interests of the child has been upheld in all subsequent decisions of the ECHR. The observation of the court in Johnson v Norway (1996) 23 EHRR 33 is particularly apposite…‘In particular…the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development’”.

Removal of this presumption does not remove a right but asserts a requirement to prove, rather than a presumption unless demonstrated otherwise.

This announcement will no doubt be welcomed by victims and professionals. Changing the “starting point” will hopefully ensure that a presumption does not override the impact of abuse.

The Government also announced plans to automatically restrict the exercise of parental responsibility in cases where a person with parental responsibility has been convicted of a serious sexual offence against any child, and where a child is born of rape.

 
[1] https://www.gov.uk/government/news/government-action-to-protect-children-from-abusive-parents
[2] https://www.gov.uk/government/news/government-action-to-protect-children-from-abusive-parents
[3] https://domesticabusecommissioner.uk/majority-of-family-court-cases-involve-domestic-abuse-but-system-still-not-responding-warns-domestic-abuse-commissioner/
[4] https://www.42br.com/latest-news/are-domestic-abuse-victims-still-being-failed-by-the-family-justice-system-domestic-abuse-commissioner-release.htm
[5] PRACTICE DIRECTION 12J – CHILD ARRANGEMENTS & CONTACT ORDERS: DOMESTIC ABUSE AND HARM – Justice UK

17th Nov 2025

Charlotte McDonald​​​​

Call 2021

Sophie George-Moore

Call 2024