A major shift is happening in the Family Courts in England and Wales. For decades, the law has worked on the principle that it is usually best for children to have contact with both parents, known as “presumption of parental involvement”. However, the government has recently announced that this presumption will be repealed. That means judges will no longer have to start from the assumption that both parents should always have contact with their child in order to meet the child’s best interests and welfare.
Why is the presumption of parental involvement being repealed?
For most families, the assumption that both parents should be involved in their children’s lives is reasonable. Most parents want what’s best for their children and maintaining relationships with both parents can be crucial for a child’s emotional wellbeing.
But critics say that in some cases this has gone too far, particularily where there is a history of one of the parents being violent or abusive towards others in the family. In those cases, there was still a presumption at law that contact would be in the interests of the child, and it has been up to the other parent to shift that presumption and prove to the court that unsupervised visits with the violent parent would put the children at risk of harm.
This legal position has led to children being placed at risk and, in some cases, there have been tragic consequences. Claire Throssell from Sheffield was mother to two boys, Jack and Paul aged 12 and 9. In 2011 she warned the court that their father had threatened to harm both her and the children. But the Family Court Judge was guided by the presumption of parental involvement and allowed the father unsupervised access. On their next visit the boys were deliberately killed by their father when he trapped them in an attic and set fire to the house. Ms Throssell made a promise to her boys that no more children would die in this way and has been campaigning for a change in the law ever since.
What it means for families in disputes involving children
If you are going through separation and a dispute about your children, this reform could affect how your case is handled. Judges will still look at all the facts, but the starting point has changed and the court will focus on whether contact is safe, taking into account:
- What arrangements truly serve the child’s emotional and physical wellbeing
- Whether there are any risks that must be managed before contact takes place
The change in the law should prevent children being forced into unsafe situations just to preserve parental contact. But some have raised concerns that parental involvement may be unfairly limited for parents who are safe and loving but find themselves in a high conflict situation. Evidence and effective representation will matter more than ever to ensure that the court has all the relevant facts before it and is able to reach the right outcome for the children concerned.
How we can help
At Cartridges Law we have a team of experienced family lawyers including Resolution Accredited and Law Society Children Panel members. We can advise on your best steps from the outset to try and resolve children matters outside of court in the first instance. But if matters do progress to court, we can ensure that you present your best possible case to achieve the right outcome for you and your children.
For further information please contact the following key members of the team:
Nicky Mein
Head of Family Care
Nicky is a Partner and leads the Family Care team at Cartridges Law. She is a Law Society Children’s Panel member recognised for her extensive experience in all aspects of children law.
Sabina Smith
Head of Divorce and Separation
Sabina is a Partner at Cartridges Law and a Solicitor in the Family Team. She leads our work advising on the financial and property aspects of divorce or separation, for married or unmarried couples.