Presumption Of Parental Involvement

When parents separate, one of the most significant questions the family justice system must answer is how children maintain relationships with both parents safely. In England & Wales, parental involvement and parental contact refer to the different ways a parent can stay part of a child’s life, from overnight stays to phone calls. These arrangements are formalised through child arrangements orders, which replaced the old “residence” and “contact” orders over a decade ago.

Since October 2014, the presumption of parental involvement has been central to how family courts approach these decisions. It tells judges to start from the position that involvement of each parent furthers the child’s welfare, unless evidence shows otherwise. But this presumption is now set to be removed, after the UK Government responded to growing evidence about harm and domestic abuse in the family courts. This article covers what the presumption is, why it is changing, what will replace it, and what parents should do if they are affected.

The presumption of parental involvement is a rule written into statute that shapes how judges in England & Wales approach private family law disputes about children. Here is what it means in practice:

• The presumption is contained in section 1(2A) and 1(2B) of the Children Act 1989, inserted by the Children and Families Act 2014 and brought into force in October 2014. The presumption of parental involvement was added in 2014 specifically to signal that both parents should normally remain active in their child’s life after separation.
• The presumption applies in private law children cases, including applications for making child arrangements orders about where a child lives (“live with” orders) and how much time they spend with the other parent (“spend time with” orders).
• The law tells the family court to presume that a parent’s involvement in the child’s life will further the child’s welfare, unless the contrary is shown. The presumption of parental involvement can be rebutted with evidence against it, particularly evidence of harm or risk.
• The law defines parental involvement as being either direct or indirect. Direct contact means in-person time (supervised or unsupervised), while indirect contact includes letters, calls, or video chats. The presumption does not guarantee equal time with both parents, nor does it require shared care.
• The presumption applies unless evidence shows risk of harm to the child concerned. If the court is satisfied that such involvement would put the child at risk, it can disapply the presumption entirely.
• Case law has reinforced a positive duty on judges to consider maintaining contact where it is safe, but this duty has always sat alongside the overriding welfare principle.

In a typical dispute about child arrangements, the family court currently starts from the assumption that contact with both parents should be promoted if consistent with the child’s welfare. The child’s welfare is the paramount consideration in parental involvement cases, as set out in section 1(1) of the Children Act 1989.

Cafcass (the Children and Family Court Advisory and Support Service) plays a key role. Officers carry out safeguarding checks, prepare welfare reports, and advise the court on risks and the child’s wishes and feelings. Children’s voices are increasingly heard through these reports, especially for young people old enough to express clear views.

Under the presumption, courts deciding children arrangements might order:

• Regular overnight stays or weekend contact
• Daytime-only contact for younger children
• Gradually increasing time with a parent who has been absent
• Indirect contact through calls, video chats, or letters
• Supervised contact at a contact centre where there are concerns

Judges use a welfare checklist to guide their decisions, looking at factors such as harm suffered or risk of harm, the child’s age, the likely effect of any change in circumstances, and each parent’s capabilities. The welfare principle requires courts to assess each case individually, weighing all the circumstances before making an order.

In straightforward, non-abusive cases, the presumption often aligns with what already works well for the child and can encourage cooperative parenting. However, in more complex cases, such as those involving allegations of domestic abuse, coercive control, or substance misuse, the presumption can create tension between promoting parental involvement and protecting the child and resident parent.

The presumption has faced sustained criticism for contributing to a pro contact culture in the family justice system, where maintaining contact with both parents is sometimes prioritised over child safety. Here is the policy background:

• In 2019, the Ministry of Justice launched a call for evidence on risk of harm in private law children cases. Over 1,200 responses were received during the public call for evidence, painting a detailed picture of how the system was failing some families.
• The call for evidence led to the establishment of the Harm Panel, which published its report in 2020. Key findings included that survivors of domestic abuse often felt unheard, clear indicators of harm were minimised, and orders for direct unsupervised contact with abusive parents were sometimes made despite serious concerns.
• The Harm Panel concluded that the statutory presumption could add to the pressure on courts to pursue contact, even where this might leave children in dangerous situations. Research indicated the presumption could lead to inappropriate contact orders in domestic abuse cases.
• The review found courts often ordered contact despite domestic abuse risks. Forms of abuse beyond recent serious physical violence, such as coercive control, economic abuse, or historic abuse, were frequently dismissed as less relevant.
• The presumption was criticised for prioritising contact over child safety, with evidence that the presumption may increase risks of harm from domestic abuse. Fact-finding hearings and risk assessments were underused.
• The Ministry of Justice’s review concluded the presumption needed urgent review, and the Government’s final report confirmed that it was not always applied consistently and could obscure focus on the individual child’s welfare.
• In response, the government announced an intention to repeal the statutory presumption in England & Wales so that safety and welfare are the only starting points in contested child arrangements.

The Government announced plans to remove section 1(2A) and related provisions from the Children Act 1989, so family courts will no longer be required to presume that a parent’s involvement benefits welfare. The government plans to repeal the presumption when parliamentary time allows, using the Courts and Tribunals Bill as the legislative vehicle.

The anticipated change will apply to private law children proceedings in England & Wales, where parents or others ask the family court to decide child arrangements. After the change, judges will still consider whether involvement of one or both parents is right for the child concerned, but without a legal presumption steering them towards contact.

The Government has linked these reforms to improving family justice outcomes, particularly in cases involving domestic abuse and controlling or coercive behaviour, and to its broader aim to halve violence against women and girls. Until the legislation is actually amended and in force, the current law and the presumption of parental involvement still applies. Parents need up-to-date legal assistance on the position at the time they bring a case.

There is no new automatic “reverse presumption” against contact. Instead, the court’s focus returns fully to existing welfare principles applied case by case:

• The family court will continue to apply the welfare principle in section 1(1) of the Children Act 1989 as the paramount consideration in every case.
• Judges will still use the statutory welfare checklist, looking at factors such as the child’s needs, the child’s wishes, the likely effect of any change of circumstances, any harm suffered or risk of harm, and each parent’s capabilities.
• There will be no presumption either for or against parental contact. The court will weigh evidence about each child’s situation individually, considering all the circumstances.
• In many families, the outcome will still be ongoing involvement of both parents, because this will remain in the child’s best interests where it is safe and beneficial. In many cases, cooperative parents will notice little practical difference.
• In cases with serious concerns about abusive parents, the removal of the presumption is designed to make it easier for the court to restrict or refuse contact where necessary to protect children and the non-abusive parent.

Parents currently involved in, or considering, child arrangements applications should expect a shift: more focus on evidence about risk, the child’s wishes, and practical parenting, and less emphasis on a starting point of contact. This is a turning point for how evidence is weighed in family courts.

For victims of domestic abuse, the reform is intended to ensure children are not placed in unsafe outcomes. Victims may feel more able to raise safety concerns without being told that contact must always be promoted. The court will assess risk on its own terms, without the presumption steering towards contact with an abusive father or other parent.

Key practical points:

• Existing child arrangements orders will not automatically change when the law changes. To vary an order, a parent must show a material change of circumstances.
• Parents who have taken on the majority of day-to-day care may see the court place greater weight on stability and continuity in the child’s life, especially where there have been historic safeguarding concerns.
• Courts will still expect both parents to promote the child’s relationship with the other parent where safe. Deliberate obstruction of contact without good reason can still count against a parent.

The law now recognises children as child victims in their own right where they see, hear, or experience the effects of domestic abuse between adults in their household, under the Domestic Abuse Act 2021. 

Even under current law, the court should already consider Practice Direction 12J and assess allegations of abuse before deciding whether parental involvement is safe. Removing the statutory presumption is intended to support judges in prioritising child safety, making it clearer that the court is not required to pursue parental contact with an abusive parent at all costs.

Recent and proposed reforms also aim to further limit the decision-making power of certain convicted offenders over a child’s life, such as restrictions on the exercise of parental responsibility for those convicted of serious offences. Parents facing abuse should seek specialist legal assistance and support from domestic abuse services before agreeing to, or opposing, any form of contact.

Parental responsibility is the legal status allowing a parent to make important decisions about a child’s life, such as education, medical treatment, and religion. It is separate from day-to-day contact arrangements. The removal of the presumption of parental involvement does not automatically remove parental responsibility from any parent; separate legal steps are required to limit or remove that status in extreme cases.

In practice, courts may increasingly be asked to consider whether and how an abusive parent with parental responsibility should be allowed to participate in decisions about the child. The chief executive of Women’s Aid and other campaigners have long argued for stronger protections, and the Government has linked the package of reforms to broader aims of strengthening family justice and reducing violence.

There may be more guidance and case law over time clarifying how judges should approach parental involvement in complex, high-conflict cases after the statutory presumption is removed. Parents should also expect that parental rights and responsibilities will continue to be scrutinised closely where there are concerns about harm.

Disputes about child arrangements, especially where abuse or safeguarding issues are raised, are highly fact-specific and can be emotionally overwhelming for parents. A family lawyer can help you understand the current law on the presumption of parental involvement and how any forthcoming changes might affect your case strategy.

Early advice can help parents gather relevant evidence about the child’s needs, any history of harm, and practical proposals for safe, workable contact or, where appropriate, no contact.

If you are unsure how the changing law on parental involvement may affect your family court dispute, seek tailored advice from a family law specialist as soon as possible. Don’t wait until proceedings are underway to get the guidance you need. Call us today on 0330 094 5880 to arrange your free, no‑obligation consultation or book a time that suits you using our online appointment system.   Our family lawyers in Coventry as well across Nottingham, Newcastle, Cardiff, Oxford, Manchester, Northampton, York & London can advise you on any family law issues.

Does the presumption of parental involvement still apply right now?

Until Parliament actually passes and brings into force the relevant amendments to the Children Act 1989, the existing presumption in favour of parental involvement technically still applies in England & Wales. However, courts are increasingly alert to the need to avoid unsafe outcomes and must always treat the child’s welfare and safety as paramount. Check the up-to-date legal position with a family law specialist at the time you start or respond to proceedings.

Will removing the presumption mean my child will not see their other parent?

Removing the statutory presumption does not create an automatic barrier to contact. It simply removes the legal starting assumption that such involvement of both parents benefits the child. In many families, especially where there is no abuse and both parents are safe and caring, the court is still likely to order regular parental contact because this will often best promote the child’s welfare. Each case will turn on its own facts, so parents should focus on evidence about their child’s needs rather than assuming any particular outcome.

How will this affect grandparents and other family members?

The presumption of parental involvement is specifically about parents, so the reform does not create new automatic rights for grandparents or other relatives. Grandparents and extended family can still apply for permission to bring child arrangements applications where appropriate, and the court will consider the child’s welfare and existing relationships. Relatives concerned about a child’s safety or loss of contact should seek legal assistance to understand their options.

Can existing child arrangements orders be changed because the law is changing?

The removal of the presumption by itself does not automatically change existing orders made by the family court. Parents can apply to vary an order if there has been a material change of circumstances, which could include new evidence about risk or significant shifts in the legal framework. Obtain advice on prospects of success and the impact on the child before issuing a new application.

What evidence will the court look at when deciding parental involvement after the change?

The court will continue to look at a wide range of evidence: Cafcass reports, police and medical records, school information, witness statements, and the child’s wishes and feelings where appropriate. Evidence about patterns of abuse, controlling behaviour, or neglect will be especially important in deciding whether and how a parent should be involved in the child’s life. Work with your family lawyer to present clear, focused evidence linked to the welfare checklist and to ensure children are at the centre of every decision.