When parents separate, the law starts from the belief that a child’s relationship with both parents matters. But what happens when one parent says that contact is not safe? In these situations, the family justice system faces one of its most difficult tasks: protecting a child from harm while making fair decisions about their relationship with each parent.
The Government's decision to repeal the presumption of parental involvement has been welcomed by many domestic abuse campaigners as a long-overdue reform. The objective is clear: to ensure that a child's safety and welfare take precedence over contact with a parent who poses a risk. The more difficult question is whether removing the presumption will lead to meaningful change in practice or simply alter the language of the law.
For years, critics of the family justice system have argued that a "pro-contact culture" places too much emphasis on maintaining a child's relationship with both parents, even where allegations of domestic abuse are present. The repeal is intended to send a powerful message that contact is not an entitlement and that a child's welfare must always come first.
There is, however, an important reality that should not be overlooked. The welfare of the child has always been the paramount consideration under the Children Act 1989. Family courts already possess extensive powers to restrict, supervise or, in appropriate cases, prohibit contact altogether. Judges do not require new powers to protect children from harm. What the Government is proposing is a change in emphasis rather than a fundamental change in legal principle.
When abuse allegations enter the Family Courts
The announcement follows growing concern about how allegations of domestic abuse are dealt with in private law children proceedings. Recent research commissioned by the Domestic Abuse Commissioner paints a troubling picture. The study found evidence or allegations of domestic abuse in a substantial majority of child arrangements cases and concluded that domestic abuse has become, in effect, the everyday business of the family courts.
Perhaps more concerning was the finding that abuse was frequently not treated as an active issue when decisions about children's arrangements were made. Survivors reported feeling discouraged from raising allegations because they believed the allegations would make little difference to the outcome. In a significant number of cases, unsupervised overnight contact was ordered despite concerns regarding abusive behaviour.
Those findings understandably strengthen the argument for reform. No child should be exposed to avoidable harm, and no parent should feel that legitimate safeguarding concerns will be ignored. The challenge, however, lies not in identifying the problem but in determining how the courts should respond to it.
More hearings are not always the answer
Many cases involve allegations that are disputed. Before a court can make decisions about a child's future relationship with a parent, it must often determine whether the alleged behaviour occurred. This may require a fact-finding hearing. Practice Direction 12J provides guidance on how domestic abuse allegations should be considered, but the practical reality is that fact-finding hearings require additional court time, judicial resources and legal representation in a system that is already under significant pressure.
Most family practitioners will recognise that tension. Thorough investigation of serious allegations is essential. Equally, the courts face increasing workloads, limited resources and lengthy delays. Expanding fact-finding hearings in every case where abuse is alleged is simply not a realistic solution. The effectiveness of the repeal may therefore depend far more on resources, training and judicial consistency than on legislative reform.
The case that changed the conversation
The political momentum behind the change owes much to the campaigning of Claire Throssell MBE, whose two sons were killed by their father during court-ordered contact. Her case stands as a tragic reminder of what can happen when risks are underestimated and safeguarding measures fail. Few would dispute that the family justice system must learn lessons from such cases.
The repeal undoubtedly carries symbolic importance. It signals that the Government wishes children's safety to take precedence over assumptions about parental involvement. Symbolism, however, is not the same as reform.
Conclusion: what will change in practice?
In our view, the real test will be whether the culture of decision-making changes. If practitioners, judges and agencies are better equipped to identify and respond to abuse, the repeal may become a genuinely significant milestone. If resources remain stretched and practice remains inconsistent, little may change beyond the wording of the legislation.
Children do not benefit from slogans, presumptions or political announcements. They benefit from careful assessment, robust safeguarding and decisions tailored to their individual circumstances. The danger is not the existence of a legal presumption. The danger is any system that loses sight of its primary purpose.
Removing the presumption may send a powerful message. Ensuring that message is reflected in day-to-day decisions is the far greater challenge, and ultimately the measure by which this reform should be judged.
