The government has announced that it is to legislate to remove the presumption in law that contact between a child and both parents is usually in their best interests.
The relevant law is at section 1(2A) of the Children Act 1989:
A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) 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 government has announced that it will repeal this law in order to “send a clear signal that the government is placing the wellbeing and safety of children at the forefront of decision making.”
Justice Minister Baroness Levitt KC said “‘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. Our priority must always be children’s welfare.’
The presumption was introduced in 2014. In truth, it changed little in practice. It did nothing more than reflect the existing approach of the court. Before the law was introduced, when an application for a contact order (the old name for a child arrangements order) was made, the court would normally make an order that a non-resident parent, usually (but not always) the father, should have contact with the children, unless there was a good reason why that should not happen. You had to be a dreadful father to fail in an application for contact with your children, although that did not mean that bad fathers had unrestricted contact with their children; it would often be subject to conditions, such as requiring it to be supervised or limited to indirect contact over the phone or by letter.
Since the presumption was introduced, domestic abuse campaigners have argued that it should be repealed as they believe that it helps to perpetuate abuse. One of the most prominent of these campaigners is Claire Throssell, whose children were murdered by their father in 2014. The court had made an order that the father should have contact with the children, despite him having made threats to kill them in the past.
Claire Throssell’s case is truly appalling. The system could not have failed more badly. I suspect that the judge, the Cafcass Family Courts Adviser and the lawyers in that case will be haunted by the court’s decision for the remainder of their lives. The order in that case was made very shortly after the introduction of the presumption in 2014. I would not expect the court to make a similar order nowadays.
The planned change has been widely welcomed by Resolution, the Bar Council and many leading family law practitioners. Regrettably, I am not convinced that this change is needed.
Critics of the current law tend to gloss over the fact that the law currently says that the involvement of both parents in a child’s life will further the child’s welfare “unless the contrary is shown”. The law already contains safeguards designed to ensure that in cases where the father poses a risk to the children, then contact should not be ordered by the court.
The court has become more and more aware of the problems of domestic violence and abuse over the years. When I began practising family law in 1996, it was relatively rare for a father who was abusive to the mother to not get to see his children, unless he also posed a risk towards the children. It isn’t like that now; domestic abuse is taken extremely seriously by the court when it considers whether it should make a child arrangements order.
Family Procedure Rules 2010, Practice Direction 12J contains detailed provisions for how allegations of domestic abuse should be considered by the court before it decides whether to make a child arrangements order.
In my experience, domestic abuse allegations are commonplace in children disputes. That does not mean that the allegations are automatically believed by the court, but it is fair to say that a depressingly large number of those allegations are probably true or mostly true. A smaller number of those allegations are probably exaggerated or downright false.
The court does not ignore these allegations, but it does not conduct a fact finding hearing in every case where allegations are made. If it were to do so, the system would grind to a halt. It therefore only undertakes fact finding hearings to decide the truth or otherwise of the allegations in the more serious cases.
The Domestic Abuse Commissioner has recently produced a report, citing research by Loughborough University which found that within 73% of family hearings it observed and in 87% of the case files it reviewed, there was domestic abuse. It reviewed nearly 300 child arrangement case files, live observations of nearly 100 case hearings, as well as focus groups with domestic abuse survivors and interviews with judges, magistrates and Cafcass/Cafcass Cymru officers.
Despite this horrifically high figure, the researchers found that domestic abuse was frequently not recognised as an active issue or taken seriously. In more than half of cases, unsupervised overnight contact was ordered.
Nevertheless, the law strikes me as being correct in its current form. Both parents should be involved in their children’s lives, unless there is a good reason why they should not. If the court makes an order that an abusive father has contact when he poses a risk towards the children, then the court is failing to apply the existing law properly.
The government has also announced that the law will be changed so that parental responsibility can be removed from fathers who are convicted of sexual offences towards children. Parental responsibility is defined as the rights and responsibilities of a parent towards a child. Most parents share parental responsibility for their children. This means that they should both be involved in significant decisions, such as health or education. It also means that certain things cannot happen without the consent of both parents or a court order, e.g. changing a child’s name, taking a child under 18 outside the jurisdiction of England and Wales (where it would be unlawful, albeit not illegal, to do so without the other parent’s consent) or taking a child under 16 outside the UK (which is a criminal offence if both parents don’t consent).
There have been cases where abusive fathers, convicted of a sexual offence against a child, have sought to control the mother from prison, by refusing to provide the necessary consents, so that the mother has to seek an order from the court giving her permission.
The government says that when the new legislation come into force, the Crown Court shall “make a prohibited steps order restricting the exercise of an offender’s parental responsibility where they have committed a serious child sexual abuse offence (this includes crimes such as rape, assault by penetration and sexual assault) against a child for whom they hold parental responsibility and have been sentenced to four our more years in prison. The restriction will apply in respect of any child for whom the offender holds it.”
The effect of this clause means that parental responsibility can be restricted where the offence was committed against a child who isn’t a child of the offender, not just in cases where the offender committed a sexual offence against a child of his or her own.
This change in the law makes absolute sense. Clearly those fathers should not be able to continue to engage in such controlling behaviour. They have sacrificed their right to require consent when they committed their crimes.
22 November 2025
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