In the world of Family Law within England and Wales, child arrangements are governed by the Children Act 1989. A pivotal feature of the Children Act is that it provides a starting point for the Court when deciding issues about contact and welfare.
The Act provides that, unless there’s evidence to the contrary (such as a risk of harm), it is generally in children’s best interests to have both parents involved in their life on a regular basis. This has been the guiding principle for practitioners advising troubled parents, for a significant span of time.
This principle is known widely as the ‘presumption of parental involvement’. This was reinforced in 2014 to ensure that when faced with a dispute, the Family Court must start from the idea that the children should be spending time with both parents if safe and practical.
However, the government has now proposed (and appears set) to remove this presumption altogether, a reform that has divided practitioners across social media.
The primary reason is to strengthen protection for children and parents who have experienced domestic abuse or coercive control. By removing the presumption, there is no default starting point for a parent who has had contact withheld, or disputed, to pursue this entitlement in law.
The aim is honourable. The Family Court has always relied on judicial discretion to perform a balancing act where ‘risk of harm’ is not black and white, against the importance of a child not having a relationship with a parent.
The proposal follows the trajectory of the Family Court’s attitude towards the ‘voice of the child’ and placing their version of events at the forefront of contact disputes.
However, the implications of removing the presumption are far from simple.
Practitioners in support of the reform, understandably consider that existing legislation can place pressure on victims of abuse to maintain unsafe arrangements. It can lead to situations where the Family Court prioritises the idea of joint involvement over the child’s safety and wellbeing, especially in cases where direct impact on the child is not proven. At this point, victims of domestic abuse (such as parents) are often left with the burden of managing and facilitating this time through a child’s growing years. This can fail to recognise the passive impact of a child witnessing, managing and compartmentalising parental conflict as they grow up, or the risk of abuse being extended to children if they are left without a safeguarding factor.
Arguably, the reform simplifies the Child Arrangements process down to the bare bones of what it already is – discretionary guidance that Judges must have regard to, whilst still considering what is most appropriate on a case-by-case basis.
Each set of circumstances will have its own evidence and welfare concerns. Without a presumption, this could simply alleviate the (typically) non-resident parent from formally asserting their rights without insight as to risk management or their behaviours. This would expect to positively target children living in high-risk households and to improve the confidence of parents who have concerns, to exercise their Parental Responsibility unilaterally.
Of course, there are serious practical concerns that come with such a drastic change in guidance. Primarily, there are legitimate anxieties about how such a change could be abused within the current Family Court system, which is already under immense strain.
Procedural manipulation is not uncommon, and the majority of practitioners who assist with contact disputes are unfortunately likely to agree. We regularly encounter unfounded allegations, escalating hostility, and retaliatory restrictions on contact due to disputes in respect of financial issues, general separation or personal problems.
Children can, sadly and often, be utilised as weapons in this conflict. There is a concern that the Family Court do not have the resources available to separate these cases correctly all the time, leading to drastic impacts on contact as a result of short-lived acrimony.
When a case enters a system plagued by delays, overcrowding and underfunding, these tactics can take hold on a stronger level. For example:
- some families are waiting 4-5 months just for a First Hearing Dispute Resolution Appointment (FHDRA). There is no early intervention decision before the FHDRA. CAFCASS or the Local Authority very often shy away from making contact recommendations.
- The function of a Safeguarding Enquiries Report (often commissioned at the outset of the proceedings) is generally to propose directions and make observations about the key issues. The Family Court at the FHDRA, does not have enough information to finalise cases.
- This is in conjunction with other problems, such as cases appearing last minute before a Legal Adviser only – who are unable to make decisions unless agreed between the parents. In the interim, unless there is an urgent application made (noting that the threshold is a safeguarding risk, and having no contact with your child is not a safeguarding risk), matters stay in abeyance.
- Non-resident parents are waiting months for the Family Court to reinstate contact. The police are unable to assist in civil matters, the Local Authority have a limited remit where there is no palpable risk, and the Family Court do not often get to considering final recommendations for some six months at a minimum.
Taking the above process into context, a child could settle into a routine of not seeing their other parent for over half a year until formal intervention takes place.
It is not lost on the Family Court that one of the welfare considerations under the Children Act, is the impact on any change in circumstances. When the Family Court are able to dedicate time and judicial input to begin making formal decisions, any unilateral change in circumstances is already historic.
The child is now relatively settled in a new status quo, sometimes entirely of one parent’s own making, and the Court have a duty to consider whether unsettling them further would be troublesome.
The economic picture in England and Wales, and especially the ongoing cuts to funding of our public resources, ties directly into the ability for the government to guarantee justice to families in need. Intervention takes place far too late.
Wales has almost fully integrated the Pathfinder process to govern Child Arrangements, which does obviate the anxieties about delays given that Pathfinder streamlines the process and aims to finalise cases entirely within 3-6 months. This early intervention is helpful, but comes coupled with other flaws.
Pathfinder’s emphasis on streamlining cases assumes a ‘one size fits all’ approach, which can overlook the reality that some cases may actually need the time to fully assess complex issues (such as entrenched hostility, drastic alienation or the need for psychiatric evidence). It is a significant, costly, and time-consuming burden to evidence these underlying behaviours in a resident parent.
The Family Court can be wary of opening this avenue where cross-allegations are flying through the Courtroom, leaving a child with no obvious safe parent. When considered alongside a prospective change of residence and the drastic change in circumstances this would result in, it is very rare to see such a decision save for the few cases that have been conspicuous enough to power through to the Senior Courts.
The lack of presumption in favour of the non-resident parent, tips this burden against them further. By unilaterally making decisions on contact until a Court application is made, the Court are still introduced to the case with a notion of the child having a primary resident parent.
The biggest question may not be whether the principle of parental involvement is correct in itself, but whether the Family Court has the resources to delicately implement a change of this magnitude correctly.
We are already overwhelmed. Family Judges are managing record numbers of cases. The amount of parents entering into formal litigation is not declining (per Family Court Statistics Quarterly).
CAFCASS and the Local Authority are stretched without enough professionals to service the case demand. Complex cases are being oversimplified, even if unintentionally, to try and finalise an Order and move along to the next one. There is not enough time or money for families to individually receive the attention they deserve. Endorsing residence with the primary carer, when allegations of harm arise and co-parenting seems impossible, is an easy Order to make.
A divisive decision?
A divisive decision made this week in family law indeed, particularly for practitioners who have concerns that funding and resources are tacitly favouring hostile parents.
Of course, this reform is not due to be implemented immediately and the government will need to have regard to family law feedback across the board. Whether this will exacerbate existing inequalities, or simply empower the parents that need a genuine boost of confidence, remains to be seen in the real case outcomes.
The solicitors and barristers at the heart of each file, need to be reassured that they can instil confidence in non-resident parents who are at the mercy of the Family Court to make a thorough decision.
This must include cases where ‘doing the right thing’ results in greater demands of Court time, heavier burdens on third party professionals, and years of litigation.
Child arrangement disputes do not come to the Court to ‘fit in’ effectively with what resources we have allocated, they are there to seek justice as a last and hopeful resort, when all other avenues have failed. We must make sure we are able to service that as a collective, and there is a significant way to go before we should be revisiting the fundamentals.