‘Now is the time to reassess presumption of parental involvement’, writes Lea Levine in the April issue of the journal[1].

That’s what the Harm report said in 2020[2], and the Government agreed before commissioning an ‘urgent’ review of the legislative provisions in s1(2A) Children Act. That review has still to be published some four years later[3]. I assumed when I read the title that the article would relate to the review and its strangely slow paced ‘urgency’.

This is a picture of a flower to lighten things up. If it doesn’t load properly you aren’t missing anything crucial. Carry on reading…

But my assumption was incorrect. Levine’s piece isn’t about the history of the statutory presumption, or its impact, nor about the extraordinarily protracted process of its review after less than a decade on the statute books. Instead, the article talks at length about the pro-contact culture, the threshold of ‘cogency’ or ‘compelling reasons’ that is said to apply to ‘no contact’ decisions, and the failure to properly balance the ongoing impact of domestic abuse when making decisions about contact between perpetrators and their children. In doing so, it locates s1(2A)[4] as the source of problematic attitudes and decisions, identifying reform of the statutory presumption as the solution to that problem. All the more surprising then that the 2020 recommendation for its review and the review’s perpetually pending status is not mentioned at all by Levine. (Those who are interested in its progress of the Review can read a series of posts by The Transparency Project site, based upon FOI requests and responses to those requests – given that at the time of writing Parliament has just been dissolved and an election looms it seems unlikely the review report will see the light of day any time soon, if at all[5])

Whether the family courts consistently protect victims and children from the wider harmful effects of domestic abuse is contentious. Many would say not.  The harm that children suffer from seeing, hearing, being exposed or subjected to domestic abuse and coercive and controlling behaviour is now well established. The rippling after-effects and the potential for continuing subtle, abusive behaviour to find its way back into the lives of children and their carers through contact is also, I think, beginning to be better understood by family court judges, lawyers and social workers. But whether one’s view is that more work is to be done or that the pendulum has swung too far, it is useful to consider: how significant a role does the statutory presumption actually play when we are thinking about making sound, safe, welfare based decisions for children?

To answer that question, it is necessary to go back and understand how the statutory presumption actually came about, to think about what it does and does not do, and to analyse what is really going on when courts are making decisions about contact against a backdrop of proven domestic abuse. That history is not covered in the Family Law piece, so I want to recap on it here for those who have forgotten or who are comparative newcomers to the long running debate around how best to approach contact post-separation. I want to suggest that the current focus on the statutory presumption is the wrong target.

The statutory presumption followed on from the 2011 Norgrove Review[6], and was introduced through the Children and Families Act 2014. Rather than changing the law (for example by creating a presumption of shared care as father’s rights groups had argued Norgrove should recommend), the new provision effectively codified the longstanding approach of the family courts that contact between a child and both of her parents was generally a welfare benefit to the child – a prior de facto presumption underpinned by and expounded in years of appellate authority and human rights law (i.e. Article 8, no contact as an interference in the child’s right to family life with her other parent). For those who do not know this history, it is easy to assume the statutory presumption is the source of the attitude of the family court to contact with non-resident parents. It is not.

The new statutory presumption didn’t say how much contact should happen, in fact it didn’t even mention ‘contact’, preferring instead the very flexible concept of ‘involvement’, which could embrace direct or indirect contact or even potentially involvement in decision making without any contact at all (i.e. the grant or exercise of PR). From the fathers’ rights lobby’s point of view this was all a very damp squib and did not advance their cause one iota, because it just said what had already been happening. The wording is cumbersome and worth reminding ourselves of, since it is often inaccurately summarised or paraphrased:

‘A court…is…to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare’.

That is the bare bones in s1(2A). But one also needs to cross refer to other subsections that were introduced and which define the parameters and operation of this provision. The presumption applies only to certain applications / decisions (essentially s8 decisions (including contact) and decisions about the grant of PR), and only applies where the ‘parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm’.

A parent is deemed as being able to be involved without putting the child at risk of harm i.e. they can rely on the presumption, ‘unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement’.

Let’s work that back: If there is there is some evidence that suggests that any form of involvement would put the child at risk of harm then the parent is not a qualifying parent and the presumption doesn’t apply. End of. So, this ‘unless’ provision isn’t triggered in cases where direct contact would be inappropriate but where indirect contact or non-contact involvement would be safe.

But then the statutory presumption itself says only that this ‘involvement’ (however meagre) is presumptively beneficial. It does not require the court to prefer one form of involvement over another (direct over indirect for example), or to prefer more contact over less, frequent over infrequent contact. Like any presumption, it can be rebutted or disapplied by the evidence and the facts. And in domestic abuse cases, post fact-find, that evidence is largely before the court and uncontestable. Where contact – or involvement, or a particular type of contact – is not in the child’s best interests (because of domestic abuse or any other factor) the paramountcy principle bites and the presumption can be disapplied.

In fact, when the (overcomplicated) text of the section is closely read, the presumption is only actively engaged where there is a live contention that there should be no involvement at all (put another way – where the dispute is around what sort of involvement the presumption is uncontroversial and adds nothing).

Cases where a party argues for no involvement at all (no indirect contact, no grant of PR / termination of it) are still few and far between – although I wonder if in recent years more parents observing a shift in attitudes towards domestic abuse have been emboldened to argue for no contact to abusive parents and removal or restriction of their PR[7]?

Boiled down, all the statutory presumption says is that some (unspecified) involvement is in a child’s best interests (unless it’s not). And nothing about it impinges upon the paramountcy principle – welfare trumps all. Objectively read then, it is an inconsequential provision with very little range and bite. And yet it appears it hold great symbolic power (just as the longed for presumption of shared care or equal contact held great symbolic power for the fathers’ rights lobby). This is because it has become a proxy for the underlying issue, which is the so-called ‘pro-contact culture’, which it is suggested by Levine and others (including the Harm panel) that the presumption somehow reinforces. That pro-contact culture is articulated and repeated in both pre-and post-2014 caselaw: essentially that contact is almost always a good thing and will almost always be ordered in some shape or form[8] – a far broader proposition than the statutory presumption.

It’s easy to dismiss complaints about a pro-contact culture by saying ‘well, it’s just the law’. But such retorts demonstrate a failure in understanding of what the pro-contact culture is and how it operates (in fact they are a failure to see that it actually exists). A compelling explanation of the pro-contact culture is given by Olive Craig of Rights of Women:

‘The pro-contact culture … is a description of the assumptions professionals in the system make, whether consciously or not, that contact is going to happen anyway, so ‘let’s just get on with it’. It is the way in which we assume the law will be applied. It leads to a minimisation of the harm caused by domestic abuse and therefore hinders the proper application of the welfare principle. It also leads lawyers to focus very heavily on the rights of the parents to see their child and of the child to see their parents while ignoring the other parts of the United Nations Convention on the Rights of the Child that make clear a child also has a right to be protected from all forms of violence. It leads to a system that overlooks the resident parent’s right to a private life, free from violence and abuse and the state’s role in protecting individuals, both adults and children, from violence and abuse.’[9]

Thus, the pro-contact culture leads to a distortion of the law and a shift in litigation behaviour in response of that distortion. Reading the post that Olive’s quote is taken from made me really reflect on my own practice, and the role I had played in years gone by in decisions by women not to pursue allegations that had profoundly impacted them and their children but where, having received frank advice, they felt it was pointless or too difficult or dangerous to pursue their allegations to proof. We all know what happens to those women in the longer run: ‘it’s not proved ergo it didn’t happen ergo there must be contact’ and we all know what happens when that contact doesn’t work (relentless litigation, criticism of emotional abuse or alienation, transfer of residence). THAT is the pro-contact culture in action.

Whilst the statutory presumption may be an attractive focal point for the energies of campaigners, and whilst abolishing or reforming it would remove any validation effect that it may have, my own view is that its amendment or repeal is highly unlikely to bring about cultural change without more. Moreover, the slow but steady shift in attitudes that is evident from an increasing number of published judgments concerning domestic abuse and consequential s8 orders over the last few years is evidence that research, campaigning, awareness raising, training, and the publication of judgments showing how it can be done are having (and hopefully will continue to have) a far more meaningful impact than tinkering with these few lines in the Act ever will. Change is like a rolling stone and it feels like it is now well and truly rolling, though I dare say there is a distance still to travel.

A thoroughly unscientific search on BAILII (still the repository of the greatest number of first instance family judgments, including those at Family Court level) for cases referencing the presumption provides a high number of results, and it is clear that certain judges routinely incorporate reference in their judgment to the presumption, as they summarise the law[10].

However, a large proportion of the hits across all judges recite the presumption in bare terms and never return to it to or engage with it at all. Many refer briefly to the statutory presumption alongside a summary (of varying degrees of detail) of familiar pre-2014 (and often pre-Human Rights Act) case law, and paragraphs 35-37 of PD12J.

Typically, references are to Re O (contact: imposition of conditions) [1995] 2 FLR 124 at 128 where Sir Thomas Bingham said:

‘…it is always in the interest of a child that he or she should have contact with the other parent…the separation of parents involves a loss to the child, and it is desirable that this loss should so far as possible be made good by contact with the non-custodial parent.’

and often cases such as Re J (a minor) [1994] 1 FLR 729 (‘contact with the parent with whom the child is not resident is the right of the child, and very cogent reasons are required for terminating such contact’) and Re M (a minor)(contact: conditions) [1994] 1 FLR 272 (‘no Court should deprive a child of contact to a natural parent, unless wholly satisfied that it is in the interest of the child that contact should cease, and it is a conclusion at which the Court should be extremely slow to arrive.’)

By and large, it is this caselaw (and PD12J) which judges do engage with (where relevant) explaining how they have applied it and why in this particular case they are making an order for contact or – increasingly, but still infrequently – why they are not making a direct contact order, are imposing a s91(14) order or are restricting or removing PR. Whilst the welfare checklist and paramountcy principle are a useful set of tools and guiding structures for judicial analysis and evaluation and presentation of a judgment, the presumption it seems is not. Other judgments base decision making in light of domestic abuse findings upon the exhortations in paragraphs 35-37 of PD12J to consider the harm suffered and risk of future harm as a result of domestic abuse by parent and child, and (para 37) to make an order for contact only of the court is satisfied that ‘the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact’ and ‘ that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent’. These paragraphs are in materially different terms (and territory) than the statutory presumption. A court can quite properly follow PD12J and decline to order direct contact, without trespassing on (or rebutting) the presumption of ‘involvement’ at all.

Rarely, if ever, does a judgment deal at all with a) whether the presumption applies in light of the issues in the case or b) whether it has been rebutted as a result of the evidence, and his is likely to be at least in part because in reality in most cases it doesn’t add anything to the mix. Even in the Fragile X case (MacDougall v SW & Ors (sperm donor : parental responsibility or contact) [2022] EWFC 50) where the facts were extreme and unusual, the presumption does not appear to substantially impact on the evaluative exercise or the ‘no involvement’ outcome. Lieven J explicitly took into account ‘the overall presumption in s.1(2A)’ (and in the case of one child a history of some contact), but concluded that ‘these factors do not outweigh the level of harm that would be caused’ by the grant of PR and contact. For the other children who had never had contact to the F, making either order would be ‘highly detrimental’ to them and indirect contact was specifically considered but ruled out because the benefits did not outweigh the disbenefits.

In G (Children : Intractable Dispute) [2019] EWCA Civ 548 the Court of Appeal describe the presumption of parental involvement as ‘very strong’, they also confirm that ‘it is not absolute. As in all matters relating to the upbringing of children welfare prevails’.

In Griffiths v Kniveton & Anor [2024] EWHC 199 (Fam) Lieven J stated that the presumption ‘is only a presumption, and necessarily will involve considering the facts of the particular case justify departing from the presumption, or the degree of restriction on any parental involvement.’ before concluding that ‘I think it is in XX’s best interests not to have a direct relationship with the F’. By way of (important) aside, it is of course the mother in this case, MP Kate Kniveton, who is now campaigning for the presumption to be reversed, in part as a result of her lengthy and painful experience of domestic abuse and the family court process – it took her many years to get to the position described in the judgment referenced here, an illustration of how hard one has to work to rebut the presumptive benefits and importance of direct contact even after serious abuse has been evidenced[11].

What recent published first instance judgments demonstrate to me is that neither the statutory presumption nor the caselaw presumption prevent judges from being quite able to disapply it, or from refusing contact (or PR) when the facts and welfare require it.

One further illustrative example – in R (no order for contact after findings of domestic abuse) [2020] EWFC B57, HHJ Vincent cites Lady Butler-Sloss in Re L (A child)(Contact:  Domestic Violence) & Ors [2001] FLR 260, (now a markedly less frequent feature of submissions and judgments than pre- H-N And Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, [2021] 2 FLR 1116) that there is no presumption against contact as a result of domestic violence (as it was then labelled), but that ‘the facts of a specific case … the degree of violence and the seriousness of the impact on the child and on the resident parent have to be taken into account’ and that  ‘the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors (if any), of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of a need to change, and make genuine efforts to do so, will be likely to be an important consideration.’ I think this case is less often cited post Re H-N, and perhaps it is sometimes overshadowed by H-N. It is nonetheless good law. Whilst some contend for a presumption or even a bar against contact in cases involving domestic abuse, Re L in light of Re H-N is a powerful tool for encouraging judges to properly consider the benefits and risks of contact in domestic abuse cases rather than falling back on generic pro-contact propositions.

I’m not arguing here that we should not strive for better and more consistent application of PD12J, and for welfare decisions that take proper account of harm and risk of harm arising from domestic abuse. Without arguing that every case involving domestic abuse should result in a no contact order, or the forfeiting of all parental rights (as some do), and without adopting the mantra of ‘contact at all costs’ as an accurate description of the judicial approach, I do suggest that it is incumbent on us all to think hard about what is meant by a ‘pro contact culture’, whether it is in play, and whether or not our practice is contributing to it.

Even ignoring the presumption, Court of Appeal guidance, based upon the core provisions of the Children Act and human rights principles, must and should be followed. Contact is generally beneficial to children. But neither caselaw nor human rights law requires a court to order contact where it is not possible to do so safely or in a way which is not consistent with a child’s best interests. And as attitudes to and understanding of domestic abuse and its effects on adults and children evolves, so must the circumstances in which courts decide to depart from the ‘norm’ of an active involvement with both parents. That may still not involve many ‘no contact’ outcomes, but lawyers must be prepared to argue for, social workers to recommend and judges to order such outcomes where the facts and the risks support that. By assuming and advising that ‘judges almost always order some contact’ we perpetuate and precipitate that outcome.

I would suggest there are more effective ways to tackle the so-called ‘pro-contact culture’ than by expending energy on the statutory presumption (and in any event, I would not recommend holding one’s breath for the Review or any action to then follow on from it). Instead, we can focus on our own roles as legal advisers, as advocates and as judges and how we can develop our approach so as to avoid inadvertently perpetuating a ‘pro-contact culture’ that sometimes disempowers survivors and produces self-fulfilling prophecies.

We can read, disseminate, and learn from those judgments where the judicial analysis demonstrates a depth of understanding of the enduring harms of domestic abuse and of the potential court process to perpetuate or exacerbate that harm when not properly controlled by the court. They may not all be citeable authority, and most are fact-specific, but they are instructive nonetheless. Why did the court accede to an argument against direct contact in this case, but reject a similar argument in another? How was the result achieved? What about the facts and evidence and the framing of the case made the difference in that particular case?

We can use our self-reflection and learning to call out and challenge professionals whose welfare recommendations or decisions are not rooted in the evidence and findings, or which lack a proper acknowledgment or assessment of risk and of welfare in light of domestic abuse.

Since I never thought it made much difference to anything, I’m actually pretty agnostic abuse the presumption being reversed (though we will have to wait and see what it is to be replaced with, if anything). I don’t think that it is the solution that campaigners are looking for and nor is it a prerequisite for achieving their goals of safer contact, even if it would somehow ‘send a signal’. We do not need to eradicate the presumption (statutory or otherwise) that contact with both parents is generally a good thing. We need to persuade judges (or as judges be open to the idea) that proven domestic abuse, harm suffered and ongoing risk of harm are good reasons to restrict or even preclude contact (or involvement) perhaps in more cases than has hitherto been the case, and that the process of persuading the court that this is so can be a difficult burden for victims to bear. We need to use our enhanced understanding and skills in relation to domestic abuse to rebut the presumption, where it applies, and where it is justified, and to argue for truly welfare based outcomes which properly take into account the harm caused by domestic abuse itself and sometimes by the family court process itself. I think that fundamentally is a task for the family court community not the statute books.

A post script

I initially embarked upon writing a response to the article because it wrongly attributed remarks about parental alienation to me, which I wanted to correct. Whilst I was correctly quoted in the source article by the BBC, making a few remarks about the increasing use of jargon and terminology around ‘parental alienation’, comments about a ‘national scandal’ were not mine, but were made by the author of the study the article relates to (Dr Elizabeth Dalgarno), as the BBC article makes clear (that’s here by the way, if you care to read it https://www.bbc.co.uk/news/uk-66531409 ). I have asked Family Law to make a correction, which they have kindly agreed to do. UPDATE 9 Jun: Neither the BBC piece nor the Family Law article reference the research study by Elizabeth Dalgarno, who is an academic at Manchester. You can read it here (not noted in the article is the fact that participants weren’t asked about parental alienation). I couldn’t locate the link yesterday but have now dug it out, for those interested.

Footnotes

[1] Now is the time to reassess presumption of parental involvement in cases involving domestic abuse, Family Law [2024] Fam Law 393, Lea Levine.

[2] The report said that the presumption ‘detracted from the focus on a child’s welfare and safety – causing harm to children in some cases’, and that an urgent review was required. https://assets.publishing.service.gov.uk/media/5ef3dcade90e075c4e144bfd/assessing-risk-harm-children-parents-pl-childrens-cases-report_.pdf

[3] In an implementation update in May 2023 the government promised publication by the end of the year. https://assets.publishing.service.gov.uk/media/646e0e577dd6e7000ca9b2f8/harm-panel-delivery-update.pdf. Some report suggest publication is imminent, but it is unclear if the election will affect that e.g. https://www.tortoisemedia.com/2024/05/13/children-at-risk-of-enduring-harm-from-abusive-parents-if-family-courts-dont-reform-say-campaigners/ .

[4] along with related amendments to s1, namely s1(2B), s1(6) and s1(7).

[5] See this post from Feb 2024, https://transparencyproject.org.uk/the-moj-review-of-the-presumption-of-parental-involvement/, which links back to earlier posts.

[6] https://assets.publishing.service.gov.uk/media/5a7c4b3ae5274a1b00422c9e/family-justice-review-final-report.pdf. In fact, Norgrove recommended in the interim report that ‘a statement should be inserted into legislation to reinforce the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm.’ but by the time of the final report was recommending no presumption at all, stating instead that ‘the core principle of the paramountcy of the welfare of the child is sufficient and that to insert any additional statements brings with it unnecessary risk for little gain. As a result, we withdraw the recommendation that a statement of ‘meaningful relationship’ be inserted in legislation.’ Nonetheless, in due course something not dissimilar to Norgrove’s interim recommendation was implemented, albeit the can of worms relating to ‘meaningful involvement’ which had caused much difficulty in Australia as a result of similar legislation, was deliberately sidestepped.

[7] It has to be acknowledged this is an unevidenced suggestion on my part, based on my own anecdotal experience, given the paucity of granular statistics about family court applications and outcomes.

[8] Though often in the context of resistance by a parent or child where the court has concluded that contact is otherwise safe and beneficial, typically where allegations aren’t proved.

[9] https://transparencyproject.org.uk/the-domestic-abuse-appeals-a-missed-opportunity-for-cultural-change/

[10] Lieven J, Russell J, HHJ Vincent for instance, although these judges are regular publishers and it is not possible to compare their output with those who publish less frequently or never.

[11] https://www.tortoisemedia.com/2024/05/13/children-at-risk-of-enduring-harm-from-abusive-parents-if-family-courts-dont-reform-say-campaigners/ (and note inaccurate reference by Tortoise to the presumption of contact).