It has long been accepted by Judges that it is in a child’s best interests to have a relationship with both their parents. In 2014, this principle was formalised through the introduction of a statutory presumption into the Children Act 1989, providing that parental involvement will further a child’s welfare unless the contrary is shown.
While intended to help ensure children maintain a relationship with both parents following separation, growing evidence suggests that, in practice, the presumption may leave children at risk of harm. A review by the Ministry of Justice found that the presumption often led to Courts facilitating contact with abusive parents, causing further harm. In response, the Government has proposed abolishing the presumption through the forthcoming Courts and Tribunals Bill, a landmark piece of legislation. However, rather than repeal, a more effective solution may lie in targeted reform.
What is the Presumption of Parental Involvement?
Section 1(2A) of the Children Act 1989 provides that “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.”
The presumption applies in private law children cases, when parents, for example, ask the Court to make decisions about who a child lives with or what contact they have with a parent.
It was designed to:
- Prevent the unjustified exclusion of the non-resident parent;
- Promote ongoing relationships with both parents;
- Encourage co-parenting; and
- Emphasise that both parents have equal status and both play an important role in a child’s life.
The presumption is rebuttable where there is evidence that involvement would place the child at risk of harm.
The Criticisms of the Presumption
Despite its intentions, the presumption has been widely criticised for its unintended consequences, such as:
- It can expose children and abused parents (mostly mothers) to ongoing harm. It risks perpetrators of domestic abuse exploiting the court system and weaponizing the presumption to maintain contact and exercise control over victims.
- The presumption can be applied to maintain contact with a parent who poses a risk to the child. Continued contact with an abusive parent can cause emotional and psychological harm to a child.
- The presumption risks turning the question of a child’s safety and welfare into a parental rights debate, moving the focus away from a child’s needs, wishes and feelings and toward the parents’ feeling of entitlement.
- The presumption may discourage rigorous judicial scrutiny in complex cases.
In reality, every family is different, and in some cases, limited, supervised, or no contact with a parent is in the child’s best interests.
What the Courts and Tribunals Bill proposes and Why
The Government’s proposal to repeal the presumption reflects a desire to place child safety unequivocally at the centre of decision-making.
Removing the presumption would mean that Courts no longer begin with an assumption in favour of parental involvement, instead adopting a neutral, fact-specific inquiry into the child’s best interests.
This approach sends a strong signal that welfare, not parental entitlement, is paramount. Where a parent poses a risk, their involvement can and should be restricted.
Risks of Abolishing the Presumption
However, repeal is not without risk. The effects could be regressive and significant. Eliminating the presumption entirely may lead to:
- Children losing beneficial relationships with a non-resident parent without justification;
- Discouraging cooperative co-parenting, which is not in the best interests of a child; and
- Increased judicial discretion, potentially resulting in inconsistency and uncertainty in outcomes.
A Better Alternative: Reform, Not Repeal
While repeal could help protect children in rare but serious cases where parental involvement is harmful, a more balanced approach might be retaining the (rebuttable) presumption but refining its application.
This could include:
- Disapplying the presumption where there is credible evidence of domestic abuse or risk of harm;
- Strengthening judicial guidance to ensure that welfare, not parental entitlement, remains the central focus;
- Requiring more robust fact-finding in contested cases; and
- Emphasising that “involvement” does not mean equal or unsupervised contact.
Such reforms would preserve the benefits of the presumption while addressing its flaws.
We should not have to choose between protecting children and promoting parental involvement, both are important. It is about designing a framework that properly delivers both.
At Seddons GSC, we have a dedicated team of family law experts who will be able to assist you. Please get in touch.
This article was written by Marianne Harris, Associate in the Family Team.