In what may mark the beginning of a significant shift in how the Family Court deals with children cases involving domestic abuse, the Ministry of Justice has commenced a review into the presumption of parental involvement in children cases.
It has long been presumed by Judges that it is a child's best interests to have a relationship with both their parents and compelling reasons need to be given for the Court to suspend contact between a child and either of their parents. In 2014 the presumption was introduced on a statutory footing. Section 1 of the Children Act 1989 was amended to include a presumption that parental involvement in a child's life will further the child's welfare unless there is evidence to suggest that the involvement of that parent would put the child at risk of suffering harm.
The intention of this presumption was to create a balance so that one parent was not able to exclude their ex-partner from their child's life, and to emphasise that both parents have equal status.
Several groups subsequently raised issues with this presumption including Women's Aid and the All Party Parliamentary Group on Domestic Violence, on the basis that they felt that it had led to an attitude of "contact at all costs" without a proper evaluation of the risk of harm to the child from domestic abuse. However, it was the Ministry of Justice Report "Assessing risk of harm to children and parents in private law children cases", which was prepared by a panel of experts and published on 25 June 2020 ("the June Report"), which thrust this issue into the limelight.
In their report, the Panel identified four overarching barriers to the Family Court's ability to respond consistently and effectively to domestic abuse and other serious offences. The first of these was the Court's "pro-contact culture". Evidence received by the Panel suggested that the presumption of parental involvement reinforced the pro-contact culture and detracted from the Court's focus on the child's individual welfare and safety. They also found that perpetrators of domestic abuse were using the Court system to continue exercising control over their victims. The Panel therefore recommended, "a review of the presumption of parental involvement is needed urgently to address its potentially detrimental effects".
The aim of the Review, which has now been commenced, is to identify whether any reforms are needed in this area, and if so what kind (legislative or otherwise). The Review also intends to ensure that any conclusions and recommendations are rooted in a solid understanding of the effect of the presumption and its exception, and are backed up by evidence. This is vital as this is a complex and important issue, which must be considered very carefully.
It is widely acknowledged that a child's wishes and feelings can be influenced by their parents (often the parent with whom they spend the most time) and so the presumption in favour of contact can help prevent parents from being erased from their child's life by an ex-partner. Meanwhile, the Court retains discretion to prevent contact if the child's safety is at risk.
However, these benefits of the presumption must be finely balanced against situations, such as those highlighted in the June Report, in which allegations of "parental alienation" (i.e when a child is manipulated into rejecting one parent by the other without legitimate reason) are used to ignore children's wishes and feelings, and the other parent's well-founded fears of abuse. Indeed a number of concerns were raised in the June Report of professionals jumping to a conclusion that a child refusing to spend time with an abusive parent was alienated, rather than considering the refusal to be a result of the abusive parent's behaviour.
One possible solution has been proffered by the Family Solutions Group (a sub-group of the Private Law Working Group), in its report "Reframing Support for Families following Parental Separation". The Group has proposed that there should be separate pathways adopted by the Court when dealing with children cases: (i) a Safety Pathway, where the safety of the child takes primary importance over any presumption of contact or parental involvement; and (ii) the Cooperative Parenting Pathway, which presumes parental involvement is beneficial to a child. Any case in which there is an allegation of domestic abuse should be directed into the Safety Pathway. This solution may help to retain the presumption of contact in the great majority of family cases, whilst ensuring that cases involving abuse are dealt with sensitively and children's safety is made a priority.
It is too early to predict whether two pathways is the answer, or what the results of the Review will be – but what is clear is that parents and practitioners alike should watch this space carefully.