The reform follows a review of the measure, which found that the courts' "no stone unturned" approach towards fostering children's involvement with both parents in private law cases appeared to be leaving some at risk of harm.
The decision was hailed by domestic abuse organisations, who have long campaigned for the presumption to be removed from the Children Act 1989, in order to protect both children and adult survivors.
The Ministry of Justice (MoJ) said it would legislate to repeal the presumption when parliamentary time allowed.
What is the presumption of parental involvement?
The presumption was introduced into section 1 of the Children Act, which relates to child welfare, by the Children and Families Act 2014.It states that a court should presume that involvement of a parent in the life of a child, whether through direct or indirect contact, will further the child's welfare so long as it can be done in a way that does not put the child at risk of suffering harm.
This pertains specifically to cases where courts are considering whether to make an order regarding parental responsibility for a child or whether to make, vary or discharge an order under section 8 of the 1989 act. These include child arrangements orders, which govern contact arrangements or residence.
The provision further stipulates that a parent is not to be treated as a risk unless there is some evidence before the court to suggest that this is the case.
A practice direction (12J) on the consideration of domestic abuse and harm in relation to child arrangements and contact states that the courts should "consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm".
Provision 'detracts from focus on child's safety'
A 2020 review for the MoJ on how the family justice system responded to harm in private law cases found that the presumption was "implemented inconsistently...and rarely disapplied". It said that it reinforced a "pro-contact culture" and "[detracted] from the court’s focus on the child’s individual welfare and safety".The report, by a panel of experts, concluded that it could not remain in its current form and needed to be reviewed urgently to address its detrimental effects.
The then Conservative government ordered a review later that year but, though it concluded in 2024, its results were not published before that year's election.
It has now been published by the Labour administration.
'No stone unturned' approach to contact
The MoJ report, which was based on a literature review, research with families and an analysis of 245 cases, found that the presumption was not routinely referred to by judges and magistrates when making decisions about contested child arrangements orders.When it was, it was flagged up as one of several factors that the courts must consider, with child welfare remaining the central consideration.
However, echoing the findings of the harm panel, the review found that the courts took a "no stone unturned" approach to fostering a child's involvement with both parents after separation, and said that the statutory presumption played a role in this, alongside court practice, culture and case law.
Direct contact ordered by courts where there indicators of risk
This approach meant that most cases ended with an order for some sort of involvement of both parents with the child, most often involving direct unsupervised contact.While the evidence gathered by the review found that involvement with both parents could further the child's welfare in a lot of cases, it found an "apparent high incidence of orders [for direct contact] where there were indicators of risk".
This echoed findings from a recent review by the Domestic Abuse Commissioner, which found that, while domestic abuse was cited in 87% of case files from 2023 that were analysed, 44% of those that ended with contact orders provided for direct unsupervised overnight contact with parents.
The MoJ review said its evidence "suggested that courts were ordering direct contact between children and parents who caused or posed a risk of harm".
Repeal of presumption 'important step'
It concluded that the repeal of the presumption was an "important step in addressing the pro-contact culture", with the paramountcy of the child's welfare, as implemented through the "the welfare checklist" in section 1 of the Children Act, continuing to be the "central pillar" in court decision making.The checklist requires the courts to have regard to the child's ascertainable wishes and feelings, their physical, emotional and educational needs, the likely effects of a change in circumstances, their age, sex or background, parents' capability in meeting the child's needs and any harm which the child has suffered or is at risk of suffering.
Commenting on the policy shift, justice minister Baroness Levitt said: “The horrors of domestic abuse can scar a child for life. It is apparent from our research that the presumption of parental involvement can, in some cases, lead to contact being ordered even in cases where there has been domestic abuse.
'The only right which matters is a child's right to safety'
"Our priority must always be children’s welfare. Being a parent is a privilege not a right: the only right which matters is a child’s right to safety and this government is determined to ensure that that is at the heart of every decision made about each and every child.“Repealing the presumption is a key part of our package of family court reforms which will protect children."
Claire Throssell, who has campaigned, alongside charity Women's Aid, for the change in the law after her sons, Jake and Paul, were killed by their father in a house fire during an unsupervised contact visit, welcomed the news.
“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."
'Contact with an abuser is deeply harmful to children'
For Women's Aid, chief executive Farah Nazeer said the news was "an important first step" in tackling the family courts' "pro-contact culture" and that it needed to be implemented urgently.“Contact with an abuser is deeply harmful to children, with it not only risking their physical and mental wellbeing, behaviour, and development, but also their lives, in the most extreme of cases.
"Decision makers need to recognise that abuse is a pattern of behaviours, and that the potential for escalation and risk of harm is there even after the parent’s relationship has ended."
However, she said further changes were needed, adding: "We are also calling for specialist domestic and sexual abuse training to be mandated for judges, in recognition of the fact that years of pro-contact culture will take time and education to reverse, and to ensure that preventable mistakes are avoided and both women and child survivors are kept safe.”
'A pivotal moment in improving response to domestic abuse'
Domestic Abuse Commissioner Nicole Jacobs described the change as a "pivotal moment that will improve how domestic abuse is responded to within the family court and ensure children are properly heard, protected and supported".Like Nazeer, she called for the repeal of the presumption to take place as soon as possible.
"For too long, the presumption of parental involvement has distracted from the need to respond to domestic abuse and when vulnerable children are involved, there is no place for blanket approaches," she added.
