Repeal of Presumption of Parental Involvemnent

[Music] Hello and welcome back to the Pumpkourt Chamber's Family Law Podcast. If you are thinking that my voice does not sound familiar, then you'd be right. My name is Rebecca Bant and this is my debut episode as host of the podcast. To begin my tenure as host, today's episode will deal with what could potentially be one of the most significant shifts in family law in decades. This is the recent news that the government intends to repeal the presumption of parental involvement which is contained within the Children Act 1989 and relevant to private children proceedings. Joining me on the podcast today are two individuals who can only be described as heavyweights of the family law world and really need no introduction at all. But what sort of host would I be if I didn't at least attempt to do them some justice? First I am joined by Penny Howe Casey of Pumpkourt Chambers. Penny is a leading silk in all areas of children's law, both the public and private sphere, and is ranked in legal 500 as a leading silk and also in Chambers and Partners. She is described as a powerful advocate who takes command of the room as well as being able to baggile opponents and judges with her skillful advocacy. Penny has particular expertise in cases which involve death and non-accentral injuries. Then I am also joined by Sarah Williams, who is a partner and head of children at Forsters. Sarah is also ranked in Chambers and Partners and the legal 500, and the Spires Family Law Index recognizes Sarah as being top recommended. She is known for her encyclopedic knowledge of the law which will certainly be useful today, as well as her phenomenal client care. In addition to representing clients, Sarah is a qualified children arbitrator and regularly speaks at major family law conferences and contributes to articles in both the mainstream press and leading family law journals. Welcome to you both and thank you for joining me. Rebecca, thank you so much for a lovely introduction. Very pleased to be here. Unlike us, thank you very much. So we're here today to talk about the news that the government intends to repeal the presumption of parental involvement. For listeners who aren't familiar with the Children Act, that is section 1 subsection 2a of the Children Act which says that the court is to presume unless the country has shown the involvement of a parent in the life of the child concerned will further the child's welfare. So Penny, if I can start with you, that subsection in the Children Act has not always been in the Children Act. It was introduced in 2014 and I wondered from your point of view whether it was felt that there was a change on the ground in terms of how cases were decided when that presumption was introduced. I don't remember the presumption in itself making a critical difference. I do remember that there was a surgeon thinking about shared care and I remember a phase where there was a sort of trend if you like towards establishing whether there should be a 50/50 share of care or something approaching that. That trend sort of came to an end I think over a period of years but the presumption itself was not what I felt drove that and I would suggest that the presumption didn't make waves particularly when it was first introduced. I remember at that time there was very much the move in sort of in relocation cases for example where historically if the mother wanted to move and she was a primary career she would move with the children and I remember there being a sort of shift towards equal shared care and the conversations around that happening. So I'm the rise of fathers for justice. I think we all remember that so I think it was probably a response to be seen to be fair. Yes, when I came in to think about this I went back over some of the old copies of Hanzar to see what was happening around the time that this was instituted and Sarah's right it was in the great of that cultural conversation about equality of parenting, about fathers feeling that they needed to be put on to an equal footing and as I understand it there was a non-going conversation in Parliament as to whether the amendment should in fact indicate that there should be shared care and what happened in fact was that this presumption was enacted as a sort of watered down sense of recognition that both parents should be on a footing to be involved with their children. So Sarah's absolutely right it was in the midst of a wider cultural conversation at that time. So would it be fair to say then that really the only impact felt were in cases where there wouldn't have been those safeguarding concerns that would have prevented contact necessarily it was just about placing parents on a level playing field. I would have said so bearing in mind that the case law that was already in place when this presumption was enacted largely in my view supported both parents remaining involved in one sense or another in their children's lives. The enactment I don't think shifted that needle very much but perhaps it codified what we expected to happen in private law cases in any event. I would agree with that I think it's another one of those sort of checklists isn't it for the judge as they're going through the welfare checklist and to sort of just remind themselves that they are looking at both parents in the room. I see and in terms of the the government's announcement I'm right I think Sarah in saying that the announcement is just that when they have time they intend to repeal this presumption and there hasn't been any talk of any replacement or any other amendments in the children act. That's right that's my understanding. So coming on then to why it might be thought necessary there have been lots of articles and responses to this news from domestic abuse charities. Sarah what are those charities saying about why this presumption is a good thing or necessary change in private children proceedings? Now those charities are very much obviously looking at it through the lens of the victims of domestic abuse and understandably so and they're referring to the cases where there's been the judges determined that contact and the child should spend time for example with a father who's the abuser because there has been this presumption that there should be parental involvement from both parents but this is a very limited amount of cases and I think the result on the ground actually will be very limited because judges are already doing their safeguarding and welfare checks as they lead as they come to their determination. In fact I think the report from the government suggests that the presumption is very rarely referenced in judgments would that be with that align with your experience Sarah in judgments? Yes I think it's it is very rarely mentioned I think judges may mention it more now just a throwaway line to indicate that they've considered it but I still think on the ground it will make very little difference to the judgments because judges are already in the forefront of their mind is the paramount consideration of the child and part of that and is going through the welfare checklist and the risk assessment is part of that. And Penny turning to you as well the court has to consider in risk assessing practice direction 12J so in that context do you consider that this repeal will have much influence on outcomes in cases involving risk of harm? It's quite difficult to draw a line between the presumption in repealed and the outcomes of cases change to draw that direct line I think is really quite difficult if if what's required is a better and more concerted effort to apply practice direction 12J, which requires the court to take into account, for example, the harm that might be done to a child by parental involvement in a case where there have been findings of domestic abuse and the harm that may be done to the victim parent in those cases. If what we're talking about is a better, more comprehensive application PD12J, that I think is what might change the outcomes in these cases. That's where the focus needs to be. I think coupled with properly resourced, well-informed risk assessment. Now, for me, those are the sorts of things that might make a difference and might protect children and parents who have been the victims of domestic abuse in a way that is more effective and might guide the court to the right decision about the involvement of the parent who has been found to have been the abuser. But those things are not about the presumption. They're things that require much more resource and a much more care focus by the court on its duties under PD12J. So for me, it's not about the presumption. It's about other aspects of the court doing its job. So again, I'm afraid I'm on the fence as to what the repul will do in this steer. I totally agree with that. And if you look at the cases where there has been serious harm to a child as a result of spending time with an abusing parent, it is because there has been a failure in relation to the safeguarding assessment. And that's an interesting point, Sarah, because we know that for the majority of cases, it's Caffe Cass who are tasked with the risk assessment to undertake. And it's not an easy process to do a comprehensive professional risk assessment. And I think there are questions about how well resourced Caffe Cass officers are to do that, whether there is sufficient resource in the system, and whether there is sufficient professional expertise. Given where we are in terms of the family court and the lack of resources that we have as an area, as a part of the judicial system, it's difficult to see how we're going to affect improvement in the way in which risk assessments are conducted without some kind of injection of resource. And I don't know where that's going to come from. Knowing that combined with the threat to the FDAC courts as well, with that specialist expertise. And I mean London has been in special measures for Caffe Cass. So they are under enormous pressure. And some of these decisions actually fall with, for example, a forensic psychiatrist as to the risk of harm to the child. So it is very hard in our pressed system for the Caffe Cass officers who are operating as very best they can under tight constraints to carry out these very challenging assessments, which it's not always obvious where the abuse lies, it can be very insidious, and not immediately obvious. You may have a very vulnerable victim who is not forthcoming, is not able to be forthcoming, is fearful for her safety. So they're very challenging cases. But that all forms part of the risk assessment and the need for it to be really comprehensive and putting the children at the forefront and whether the removal of this presumption will make any difference. I'm not so sure. So it is interesting to look at the material that has gone into the debate about making this change, because there seem to be two main sources of data that are being brought into play. There was a report done by the Domestic Abuse Commissioner that's just recently been published in October, called Everyday Business, and that's a report where there has been a review of cases in the family court. And it's interesting how it's phrased. A part of the headline note of the report is that there was overwhelming evidence of domestic abuse in most cases that were reviewed by the study. The figures that they quote are 73% of hearings involved evidence of domestic abuse, and 87% of the case files they reviewed had evidence of domestic abuse. And their conclusion was that the study found evidence of how a pro-contact culture and a failure to recognize abuse contributed to decisions that may have put children in harm's way. And immediately when I read those figures, I thought, well, for us as lawyers, the point is how many of those cases resulted in established findings of domestic abuse. Because we, of course, are stuck in the binary system. That's how our system operates. And whilst there may have been evidence of domestic abuse and 87% of case files that were reviewed, I just was left wondering how many of those have gone to a fact find? How many of those have resulted in findings? And what the upshot of those cases would have been, as opposed to all the other cases where there wasn't a fact finding process. And it seemed to me that that report didn't really get below the surface of the system in which we are working to help us to understand how courts are then going about risk assessing cases where there are findings. The two seem to have been merged in the thinking, which is, you know, understandable, given that this is a report by the Domestic Abuse Commissioner seeking to highlight and understand the very difficult position that victims are in in the family court. But somewhat undermines the ability that we have to understand how the system is working at the moment without a better deeper dive into the cases. They're quite alarming figures. They are alarming figures. Now, of course, we don't have a breakdown of the varieties of domestic abuse that are being alleged. One can understand that there may be more than one form of abuse alleged in any given case. But you're right. They are very alarming figures. It is an ever-present feature in the cases that are coming to the to the family court. But I think that introduces the another aspect of the dilemma, which again touches on resource, which is to make sense of the recommendations that are being made in this report and in the report that reviewed the presumption of parental involvement. One would need to understand the plan going forward for the management of these cases to the point of making findings. Because it's only on the basis of findings that we can then risk assess. Without more resource, where we're being told not to hold fact findings, how is this going to result in greater protection of children? That's right. We've really come full circle with the fact findings. Haven't we from going from the Scotch Edgijoles now to more narrative-driven fact finds. Now it's driven to a hybrid fact finding and welfare hearing. So the whole nature of sort of the forensic analysis of the courts, the court has changed completely because of resources. And I wonder if actually how I wonder how this repeal or potential repeal will sit with the recent raft of case law and guidance that we've had that says actually we should be holding fact finds more rarely. More often than not are these allegations going to be relevant. So on the one hand we have the judiciary case law saying you need to really interrogate these allegations and see if they will impact the final outcome for children. And then on the other hand, from what we're talking about actually what's needed to ensure safe results, safe outcomes for children and parents is better risk assessment and therefore better analysis and exploration of those allegations. Yeah there is that total dichotomy. On the one hand we have that duty as you say to explore and then the other hand we're told actually you're not going to get a fact-finding listing for another year. I think this is where there is going to be a division obviously because the public law cases are being prioritised in the listing now. Maybe it will be easier to get fact-findings in the public law sphere than it is in the private children's law sphere. The other thing that struck me, Penny, was how this repeal of this presumption may result in some sort of imbalance in how contact with parents who are accused or have been found to have placed their children at harm in private and public law cases would be different. So for example, my understanding is that when a child is taken into local authority care, for example, the local authority has a duty to allow reasonable contact with parents or there has to be an application not to do that. That would then be completely at odds with how the private law system would work if this presumption is repealed. So I think it depends where you think the repeal is going to land. It if one thinks that the repeal is a gateway to relations between one parent and a child being severed completely, then that would sit very much at odds with the philosophy that applies in public law cases and particularly in recent times when there has been an increasing focus on the harm that is occasioned to children by having no involvement with their birth parents, adopted children who are severed from their birth families and have a real loss of identity and understanding of their roots, which is regarded as being significantly harmful for their development. And there are moves of food to address that by there being more direct contact for adopted children in safe circumstances with their birth families. So it depends if one were again following a bright line from the point of this repealing of the presumption to the point where it might mean an outcome where there is no contact at all with one parent. That would sit very oddly with what happens in the public law sphere where in interim proceedings there is usually fairly extensive direct contact with parents supervised of course by local authorities. And then on the making of a final order there is careful consideration as to whether contact can be sustained. If for example a special guardianship order is made then it's very usual for there to be a level of direct contact often supervised by the special guardians for children who have manifestly experienced significant harm often in the care of the parent they then continue to see. So it's quite difficult to square that circle as it were. And again that leads one to question whether there is going to be a development in private law that means parents are entirely cut off from any relationship with their children. Bearing in mind that the current presumption only requires consideration of indirect contact. And if that's too much it's difficult to know what findings the court will be making that base the decision for no contact. It's hard to match isn't it? The findings that are made in public law proceedings are often so very serious and yet still there is consideration of an element of contact being maintained whether that's letter box contact or a direct contact. And yet there is at least going to be a perception that repeal of the presumption might result in a complete severance of all relations between adult and child. And that's a very odd juxtaposition. I mean you're talking about all the life story work with the children which is really really important now and it's where you know everybody recognises in 2025 that that's really significant for the children in developing their sense of identity and understanding their biological, genetic and social roots and having some contact. It can be helpful for children but obviously it needs to be tempered with the risk and it affects the status quo as well doesn't it? If you're relying on, if you're cutting off that contact at a very early stage you're almost at what stage are you doing that? Is it immediately after the fact finding? Well I wonder if we've a comfortable circle again and if it's a question of resources again in that in public law cases whilst I'm not for a moment going to suggest that they're wildly well-resourced. There is the local authority involvement parties will generally have legal aid which is not always true in private law proceedings and there is somebody there to assist in supervising contact without an extra cost to the parties. So again is this a question of resource Sarah? It might well be, I mean in private children law if you're lucky enough to have resources you can easily get an independent social worker so that you know the parents can be reassured that the children are going to be kept safe and maintain that degree of contact in the right circumstances but for those that can't afford that resource it's extremely challenging because the local authority is not going to provide that so it sometimes very stark decision. And I suppose the other thing that crossed my mind when I read about this is we've also had recent guidance about how we are to deal with cases which involve alienating behaviours and one of the key tenets of that guidance is to avoid delay in reestablishing contact between a child and a potentially alienated parent. Sarah do you think this repeal will fly in the face of that guidance or again is it more symbolic than it is practical? I do think it is more symbolic. I think judges are already doing their safeguarding on welfare assessments anyway before making decisions around the right level of parental involvement. I think looking at some of the media reporting this has sort of been seized on as a great solution really to where there has been domestic violence that there should be no contact and the presumption will lead to there being no contact but it's a very very delicate line that the judge must tread in these cases between assessing the risk to the child of having contact with that abusive parent and sort of enabling parental alienation which would be obviously to the detriment of the child. But we're talking penny about we've been having these conversations for years haven't we? The narrative hasn't changed. The narrative hasn't changed and it was interesting to read the report that contributed well that was written in relation to the review of the presumption of parental involvement because when they conducted a literature review and undertook a screening of judgments in the family court they found it very very difficult to get proper evidence of the impact of the presumption and so they say in their report it wasn't possible to statistically quantify the proportion of cases in which the presumption or the exception to it were discussed in judgments or written facts. They couldn't explore statistically how harm related to the application of the presumption. They couldn't really get a solid handle it seems from the data as to how the presumption is operating and therefore it must then be very difficult to understand how the what the effect the repeal of it will have and they explain in detail why there is such limited data and they call for better data to be obtained in future but they say that this is very much qualitative research driven so a lot of this is drawn from the experiences of parents of the court system talking about how they found their their court process and and that of course is important but it's not empirical so I think there is room to think that This is a, if not symbolic, it is a reflection of a demand for change that came out of the harm report back in 2020. The harm report suggested that a review of the presumption should be undertaken. This is the outcome of that review five years later. But when you look at the evidence base, it's actually quite thin, and they haven't really been able to crystallize the impact that the presumption has had. But the qualitative outcome of the review is that on the ground it is felt to support a pro-contact culture. And therefore, in recognition of the harm report's recommendation, it is to be done away with. That's how it feels to me, not sure that the middle bit of the research that they did, of the judgement and of the literature actually brought forward much solid evidence in support of the repeal. I think it was actually really interesting to read one part of the report, which said evidence reviewed was clear that where there is no risk of harm to the child, involvement of both parents following separation generally had a positive impact on child welfare. And it struck me that that was exactly what the presumption suggested. So actually, there's evidence that there is a positive impact on involvement for both parents where there's no risk of harm. And there's very limited evidence that the presumption has been involved in judgments where children may have then come to harm. Agreed. No, totally agree. I think it comes back to the quality of that risk assessment that the judge is undertaking. So coming to the findings, I mean, it's really important and interesting, Rebecca, that you make that point. And I'm looking at the part of the literature review, which has exactly the point that you're making in it about parental involvement, generally supporting child welfare, with the involvement of both parents increasing positive outcomes for children post-separation. Well, that's entirely the philosophy that we've all been working to for decades. And then the next bullet point in the element of the report that deals with this says, however, parental involvement is maintained in the context of domestic abuse. Children and abused parents can continue to be victimised by abuse of parents. In those cases, involvement with a parent who perpetrates domestic abuse was generally harmful for the child. And again, one thinks, well, that's not novel. That's kind of a stand out finding, I would suggest, from the literature review. Because PDF12J already recognises that point, which is a point well made, but one that we've been aware of. Yeah. And so the next bullet point says, low levels of parental conflict do not vary risk to child welfare, where there's parental involvement from both parents. But harmful effects can occur in situations of severe parental conflict. Well, again, one wonders, isn't that something that we've known for a very long time? And if it's parental conflict, where does one look in terms of it being one parent's responsibility as opposed to another? So I'm not sure where one goes with that. So I suppose the point I'm making is that many of the findings that are spelled out from the literature review don't really bring to the table anything that we haven't already, I think, been trying to cater for in the outcomes of the family court from the beginning. And I suppose that brings me back to the point that I'm not sure that the evidence gathering process in the course of this review really brought to bear anything that taught us something new. I suppose that's what I would suggest. I suppose it has to be true that it's a laudable aim for the government to attempt to firstly improve outcomes for children and victims of domestic abuse, but also improve the experience of the court process for victims of domestic abuse. I wonder Sarah, in your view, is there something that's more straightforward that could have been implemented by the government instead of this repeal? I think it comes back to resources and the quality of resources. And if there are allegations of domestic abuse, they need to be examined as to their veracity and the impact of those findings upon the children. If you're looking at parental hostility, I mean, we've all had cases with parental hostility and violence within those relationships, but if the relationship is then ended and you can navigate the children going to and from the parents in a safe manner, then that's the sort of thing that we've been doing for years and years and years. So I think if there's anything that could be done, it's really supporting the structure of the structures in looking at the allegations and the impact upon the children. And completely agree, there are these, there are these contradictions that you've identified Rebecca between the absolute rightness of the aim to improve the experience of the court process and to do what we need to do to make decisions that are safe for children and are safe for the adults who have been the victims of abuse. These things are absolutely critical that we achieve. And yet I don't think the repeal is the way we're going to achieve it. What it requires is resource, as Sarah has said, resource in terms of court time, in terms of allowing for more litigation, if that is the gateway to safe decision making, which means more judicial time, it means more, it means more resource in calf cast, it means better risk assessment, it means facilities for maintaining safe contact in ways that aren't achievable at the moment in the private law sphere. And there are so many ends of this that need to be tackled, but this is, if you like, something the government can do without having to spend money that it doesn't have. That's how, that in a nutshell I think is how I would see it. And I would add that the FDAC courts are some of the best place courts to deal with domestic abuse because it's very intervention-led and resource-led and it's, it's very depressing that those courts, which rely on their funding from the local authority, are being threatened with closure. I think we will end on that very important call, Sarah, there. Thank you both very much for joining me to discuss this important issue. I started the podcast by saying it might be one of the most significant shifts in family law and decades. I think perhaps we've concluded that it might not be the shift that it's thought to be by some and we end with a rallying call that actually what's needed is more resources in the family court generally. So on that note, thank you for listening to my first episode as podcast host and I hope to join you soon.