In a win for the welfare and well-being of children, the government plans to repeal the legal principle which enshrines presumption of parental involvement within the family court system. Put simply, this means that in cases of domestic abuse the court will not assume that it is always in the best interests of children to have contact with both parents. Instead, evidence will be considered on a case by case basis.
The move will reform the long-problematic ‘pro-contact’ culture. Crucially, it will prioritise for the first time children’s safety over the parental rights of perpetrators of domestic abuse. Before this change, courts have operated on the presumption that having contact with both parents is in the best interests of a child.
Family court law change will finally put children’s wellbeing first
On Wednesday, the Ministry of Justice announced the plan to repeal the ‘presumption of parental involvement’. In 2014, parliament had introduced this into the Children Act 1989.
In principle, this meant that in contact cases in the family courts, the court had to presume that the continued involvement of both parents would be in a child’s best interests.
However, domestic abuse campaigners have long been raising the alarm over its dangers. Because in reality, the result has been a system which has placed the rights of abusive parents – primarily fathers – above the safety and wellbeing of children.
The government’s announcement coincided with the anniversaries of the deaths of two children from these legal failures. Domestic violence survivor and Women’s Aid ambassador Claire Throssell MBE has tirelessly campaigned for the repeal of this legal principle. 11 years ago to the day of the announcement (22 October 2014), the abusive father of her two children killed her son Paul. On 27 October 2014, he then killed their son Jack. The presumption had effectively sidelined Throssell’s warnings that he was a danger to them. However, the repeal could have prevented their homicides.
Repealing the ‘outdated’ presumption of parental involvement
At the announcement, Throssell said:
For almost a decade, Women’s Aid and I have worked together, campaigning to change the family courts and improve laws, to ensure that children at risk of further harm from abusive parents have a brighter, safer future, free from fear and oppression. Every child deserves to be heard, seen, supported, and believed; to have a childhood and to live.
Successive governments have failed to protect children, standing by an outdated presumption that it is in a child’s best interests to have contact with both their parents, even when there have been allegations of domestic abuse. We have campaigned tirelessly to have this presumption removed from the family law and practice, because until this narrative changes, more children, like Jack and Paul, will continue to die.
Although today’s announcement can never bring back Jack and Paul it will give children further protection against preventable harm in their lives. No child should have to hold out a hand for help in darkness to a stranger and say that they have been hurt by someone who should love and protect them most. No parents should have to hold their children as they die, from the abuse of a perpetrator, as I did a decade ago.
A pro-contact culture that prioritised the parental ‘rights’ of domestic abusers over children
The ministry brought forward the decision off the back of the recommendations from the 2020 Conservative government’s harm panel. This had found that the pro-contact culture:
placed undue priority on ensuring contact with the non-resident parent, which resulted in systemic minimisation of allegations of domestic abuse.
Consequently, the panel advised the government “urgently review” the presumption of parental involvement.
Of course, since the panel recommended this, family courts have placed many more children at risk of harm.
In July, domestic violence charity Women’s Aid published a harrowing report illustrating the abominable consequence of this pro-contact legal principle. Titled 19 More Child Homicides, the report detailed the tragic and avoidable deaths of 19 children the family court system had utterly failed. The children, aged between just over three weeks old to age 11, had been killed by parental perpetrators of domestic abuse.
Significantly, the report found that there had been a spike in the number of families facing these avoidable child deaths. Notably, this had risen 50% in the previous 10 years. As such, it pointed to the devastating impact of this legal presumption.
The Bureau of Investigative Journalism highlighted a further report published earlier this month. Domestic abuse commissioner for England and Wales Nicole Jacobs tasked academics at Loughborough University to produce the report based on a pilot study they conducted. The reports findings compound the concerns Women’s Aid raised in its research.
The pilot study analysed more than 300 family case files. Notably, it found evidence of domestic abuse in 87% of them. Despite this, it identified in more than half of these cases, judges were sending children to stay with potentially abusive parents.
A significant step, but it must just be the start
While the move marks a significant step in the right direction, the repeal alone will not overhaul a system that has deeply-embedded this pro-contact culture. The 2020 harm panel itself noted that before parliament introduced the statutory presumption:
it was already well established in case law that the involvement of both parents in a child’s life will usually further the child’s welfare and that compelling reasons must be demonstrated for the court to suspend contact.
For too many poor, chronically ill, disabled, and racially minoritised mothers and caregivers, the systemic violence and marginalisation of the family justice system has long put them and their children at unconscionable risk. Family courts will continue endangering the lives of children until listening to and amplifying their voices and the voices of domestic violence survivors is the standard. This repeal should only signify the start of such reforms.
Featured image via Unsplash/Suzi Kim
This post was originally published on Canary.