Review of the Presumption of Parental Involvement

Omschrijving

Executive Summary
Introduction 
Most parents who separate make arrangements for their children between themselves. However, for a variety of reasons, some parents use the support of the court to do so. Private law children cases are court cases between two or more private individuals to resolve a dispute relating to children. In some of these cases, the Children Act 1989 provides that the courts must presume that, unless the contrary is shown, the involvement of a parent in a child’s life will further that child’s welfare. This is known as the presumption of parental involvement (‘the presumption’). It only applies to a parent who can be involved in the child’s life in a way that does not put the child at risk of suffering harm – and even if it does initially apply to a parent, it can be rebutted (so it does not apply) if there is evidence that the parent’s involvement will not further the child’s welfare. 

The Expert Panel on Assessing Risk of Harm to Children and Parents in Private Law Children Cases (‘the Harm Panel’) published a report in 2020 which looked at evidence from those with personal and professional experience of the family court. The Harm Panel recommended that the presumption be “reviewed urgently in order to address its detrimental effects” (MoJ, 2020a, p. 175). In November 2020 the Ministry of Justice (MoJ) officially launched the Review of the Presumption of Parental Involvement (‘the Review’), which focused on understanding how courts in England and Wales apply the statutory presumption and the impact on child welfare of the courts’ application of these provisions. 

How are the courts applying the presumption? 
The evidence gathered suggested that the presumption, and the exceptions to it, were not routinely referenced by judges and magistrates when making decisions about contested child arrangements orders. When it was referenced, the presumption was highlighted as one of several factors the court must consider, while child welfare remained the central consideration. The presumption may have factored into earlier decisions made by the court that were not referenced in written or oral judgments at the end of a case. It may have also played a role in cases where parents reached full or partial decisions by consent.
There was a general consensus across the evidence gathered which supports the following findings: 
•    The most likely outcome of child arrangements cases was for some form of involvement between a child and both of their parents – generally unsupervised and face-to-face. This was true even in cases involving allegations of domestic abuse or harm. Orders for no involvement or substantially restricted involvement (such as supervised or indirect contact) were not routinely made by the courts. 
•    There was some evidence, largely from qualitative studies, that in cases with indicators of high risk, including convictions, protection orders and findings of harm, courts still pursued or ordered direct involvement between children and the ‘perpetrator’ parent.
•    There was little evidence about the lives of children and families following proceedings, or how orders worked for these families after they left court.
•    The courts’ approach to allegations could result in a minimisation of domestic abuse, especially where courts deemed the abuse less serious or historic. 
Evidence suggested that the design and practice of the wider family justice system did, in fact, promote parental involvement at every stage of a child arrangements case. The courts’ approach to promoting involvement by seeking all possible avenues to support it – referred to as the ‘no stone unturned’ approach by participants in the Review’s stakeholder workshops – was embedded into the practice of the family justice system. The statutory presumption of parental involvement was not the only relevant factor here. Case law considering parties’ rights under the European Convention on Human Rights (ECHR), for example, was found to place a ‘positive duty’ on judges to promote contact between a child and their parent and required the court to consider all alternatives before ordering no involvement.

What is the impact on child welfare of the courts’ application of the presumption? 
The evidence reviewed was clear that, where there is no risk of harm to the child, involvement of both parents following separation generally had a positive impact on child welfare. Most of the evidence explored the involvement of non-resident fathers and compared shared care and sole care arrangements. Studies generally found that lower levels of father-child involvement were associated with worse child welfare outcomes. However, many of these studies did not consider family characteristics or the experiences of children. Where studies did control for relevant characteristics, such as family income, exposure to parental conflict, or the quality of the parent-child relationship, the difference in child welfare outcomes between children living in shared care arrangements and those living in sole care arrangements disappeared. 
Little evidence was identified in the Review about the impact on child welfare where the outcome of a court order was that a child would have no involvement or substantially limited involvement with a parent (such as indirect contact). The lack of a clear evidence base about the long-term outcomes of different forms of involvement ordered by the court was concerning.
Following the completion of the Presumption Review, the Deputy Prime Minister has announced his intention, when parliamentary time allows, to amend the Children Act 1989 to remove the presumption of parental involvement. 

Where a parent posed a risk, or had harmed a child, the evidence suggested that involvement with that parent might not further the child’s welfare. Such involvement could leave children at ongoing risk of harm, with both short- and long-term implications for their lives. The high incidence of orders for direct contact, and qualitative evidence that courts sometimes ordered direct involvement even in cases with indicators of high risk, suggested that courts were ordering direct contact between children and parents who caused, or posed a risk of, harm to their child. Such decisions can have lifelong negative impacts on children. 
The evidence in the Review indicated that children’s views were not always considered. If children were engaged, it was often late in proceedings and the courts appeared to take a ‘selective’ approach to listening to children’s voices, where the voices of older children and children supportive of parental involvement tended to be amplified more than those of other children. 

Conclusions
The evidence the Review identified suggested that courts take a ‘no stone unturned’ approach and are intrinsically geared towards fostering involvement for a child with both their parents after separation. For some children, such decisions could further their welfare. However, where a parent poses a risk, or has caused harm to a child, children’s welfare was not always supported by parental involvement. The apparent high incidence of orders where there were indicators of risk suggested that the courts were ordering direct contact between children and parents who have caused or pose a risk of harm.
Evidence around judicial decision-making suggested that the presumption was not routinely referenced by judges and magistrates when they made decisions about contested child arrangements orders. When it was referenced, the presumption was highlighted as only one of a number of factors the court must consider when making child arrangements orders.
However, the Review’s evidence suggested that, in practical terms, assumptions about child welfare could drive decision-making and an individualised focus on the welfare of each child could be lost. Whilst family justice practitioners generally made every effort to centre child welfare across their practice, the evidence of the Review suggested that system practice and the resulting court decisions could leave children at ongoing risk of harm.