‘THE PRESUMPTION OF PARENTAL INVOLVEMENT IN S1(2)(A) OF THE CHILDREN ACT 1989… REINFORCES THE PRO-CONTACT CULTURE AND DETRACTS FROM THE COURT’S FOCUS ON THE CHILD’S INDIVIDUAL WELFARE AND SAFETY.’ (THE HARM REPORT, 2020, P 174).
May 2022
The Children’s Act 1989 was introduced with the aim of protecting children. A child’s welfare should be a court’s paramount consideration, taking precedence over all other considerations when a decision is being made concerning a child. In 2014, the presumption of parental involvement was inserted into the Act and states that “unless the contrary is shown… involvement of a parent in the life of the child concerned will further the child’s welfare.”[1] This essay will argue that this presumption reinforces pro-contact culture, and by doing so, detracts from the focus on a child’s welfare and safety.
Parental involvement is seen as fundamental to a child’s family life and as almost always being in their best interest - to terminate contact, there must be exceptional circumstances and a detriment to the child’s welfare, with no alternative solution. Looking at this, it is quite clear that the presumption in favour of parental involvement seems to almost overtake the principle of the paramountcy of a child’s welfare. Assuming that the presence of both parents is almost always the best solution disregards the fact that many cases brought to court involve complex issues, such as domestic abuse, violence towards the child, or a parent preventing contact with the other parent. Therefore, modelling arrangements around the presumptions that parental involvement is almost always the best solution, assuming that both parents are capable of ‘good parenting,’ does not work to promote a child’s welfare and safety. It simply enforces pro-contact culture. Parental involvement was also largely implemented in response to fathers’ movements accusing the justice system of being biased towards mothers, and as a result also promotes of heteronormativity – that a child needs two parents, preferably a mother and father figure who they spend time with equally.
The presumption’s strong emphasis on both parents’ involvement results in a strong focus on achieving ‘fairness’ between parents in an arrangement, such as with the amount of time spent with a child. More attention is paid to quantity than the quality of this time, detracting from the focus on the child’s welfare and their best interest.
Another way s.2(1)(a) detracts from the focus on children’s welfare is seen through the dismissal of children’s wishes not to maintain contact. S.1(3)(a) states that a child’s wishes and feelings should be expressly considered, aligning with the paramountcy principle. However, courts and professionals do not seem to truly adhere to this. Children’s wishes are represented through professional reports, under s.7 of the act. Unfortunately, if these do not fall in line with the professional’s opinion, the child’s voice can be diluted, which is often justified by the child being ‘too young’, ‘immature’ or ‘manipulated by the other parent’ - dismissing their experiences. The Ministry of Justice[2] called this ‘selective listening’ - many children wanting contact with their non-resident parents are listened to, whilst those who do not are ignored. This completely clashes with the paramountcy of children’s welfare. Children can have opinions they have thought about deeply and are more capable of making decisions than courts seem to recognize. As mentioned in the Nuffield study of Child’s Experiences in Private Law Proceedings [2021], children are actively involved in their parents’ separation and are not simply passive observers. They expressed wishes and opinions for a reason and dismissing their wish of no contact by claiming that parental involvement is in their best interest can be more patronizing than protective.
Of course, it must be acknowledged that a child’s wishes can be influenced by a parent, and the presumption of parental contact can prevent the alienation of the non-resident parent. Therefore, there is a difficult balance to be struck between listening to a child and considering the possibility of outside influences on their wish, or the possibility of them changing their mind. What is sure is that children’s wishes must be valued, instead of being written off due to their age or different opinion.
The presumption of parent involvement clearly detracts from the paramountcy of children’s welfare and safety in domestic abuse cases. Re L, V, M, H [2001], the Court of Appeal issued guidelines regarding how courts should deal with domestic abuse allegations, suggesting fact-finding hearings to inquire into whether an allegation is true or not before coming to a decision regarding a child’s welfare. This was developed into Practice Direction 12J. Unfortunately, the guidance issued by the Court has been largely ignored, with judges often avoiding fact-finding hearings and placing too much focus on individual incidents – failing to consider different types of domestic abuse and patterns of behaviour. The prioritization of parental contact in these cases can have the unfortunate consequence of allowing a potentially violent parent to maintain contact with their child, which would not only be incredibly distressing for said child but also pose a risk to their safety. Placing a shared-parenting arrangement on parents where abuse has taken place can create a tense, unhappy atmosphere for a child to live in. In these cases, it is clear that the presumption of parental involvement reinforces pro-contact culture and detracts from the focus on a child’s welfare and safety.
Most people would agree that growing up in a nurturing environment with two loving parents is ideal for a child’s development. However, many cases brought to family courts are complex, and prioritizing parental contact can be detrimental. It is important to work to maintain parent and child relationships - primary custody arrangements can cause a loss of relationship with the non-resident parent. Therefore, the presumption has its merits, but shows room for improvement. A possible solution would be a Safety Pathway, where the child’s safety would be of “primary importance,”[3] overtaking any presumption of parental contact. In cases involving domestic abuse and any possible threat to a child’s safety, this pathway would ensure that their welfare is prioritized. Children should be listened to, and the value of parental involvement should not surpass the consideration of a child's welfare.
[1] S.1(2)(a)
[2] Report, Assessing Risk of Harm to Children and Parents in Private Law Children Act Cases (2020)
[3] FAMILY SOLUTIONS GROUP, '“What About Me?” Reframing Support For Families Following Parental Separation' (2020).