The presumption of parental involvement is moving. Here's what that means, and what it doesn't.

Few parts of family law have been debated as hard as the presumption of parental involvement. Some people see it as protecting children's relationships with both parents. Others see it as a barrier to seeing the risks in a case. The law has not changed yet. But the Courts and Tribunals Bill would remove the presumption, and it's worth understanding what that would involve before the headlines get ahead of the facts.

What the presumption is

Since 2014, section 1 of the Children Act 1989 has said that, unless the contrary is shown, a court should presume that a parent's involvement in a child's life will further the child's welfare. It applies in child arrangements proceedings, and it shapes how courts approach contact.

Where the Bill is now

The Courts and Tribunals Bill includes a measure to repeal the presumption. On the version brought from the Commons, it has passed the House of Commons and moved to the House of Lords. It has not received Royal Assent, so it is not law.

Even if the Bill receives Royal Assent, the repeal will not take effect that day. The repeal comes into force only when regulations made by the Lord Chancellor bring it into force. Until then, the presumption continues to apply in full, and judges must apply it.

The Bill also does not set out, in its own words, how cases that start under the presumption and are still running afterwards should be handled. Those questions will be answered by any transitional or saving regulations.

The case for change

The Ministry of Justice has argued that the presumption has contributed to a "pro-contact culture" in private law cases. Its review said the presumption sometimes led courts to overlook or minimise safeguarding risks, including where there was a history of domestic abuse. The Government's view is that removing it allows courts to start from an open-minded inquiry, with the child's welfare and safety at the centre of each decision.

Many family lawyers and campaigners welcome that aim. For them, a presumption that has been applied inconsistently should not sit at the start of cases where there are safety concerns.

The case against

Others are concerned that removing the presumption could have the opposite effect. Some argue that children generally benefit from a meaningful relationship with both parents, and that the presumption helped keep that in view. There are also concerns that a parent who does not live with the child could be seen as a less valuable parental figure, and that a child could lose contact that would have been good for them.

Practitioners have also raised resources. A change of this size could mean more legal advice, different hearing practices, and more pressure on a family justice system and legal aid system that already face long waits.

Both sides want children to be safe, and both can point to real cases. The disagreement is over where the starting point should sit.

Four examples

These examples are hypothetical and anonymised. They don't predict how any court would decide a case.

1. A parent seeking regular contact today. A parent applies for a child arrangements order for regular contact. Under the current law, the court starts from the presumption that their involvement will further the child's welfare. The other parent has to show the contrary, for example with evidence of risk to the child.

2. The same application after a repeal. Suppose the repeal has come into force by regulations. The court no longer starts from that presumption. It looks at the child's welfare and safety with no assumption either way, and considers the evidence on each side.

3. A case that spans the change. A case issued before commencement is still going when the repeal takes effect. The Bill does not decide how that case is treated. Any transitional regulations will, so the position has to be checked against those regulations at the time, not assumed in advance.

4. A first hearing. A parent is preparing for a first hearing and wants to know what the court expects. Today, the presumption still applies, so their position statement and evidence should address it directly. That is a question for a solicitor or an independent McKenzie Friend, using the case papers.

What to do now

If you have a case in court, nothing has changed. The presumption still applies, and a judge must apply it as the law stands. Follow the Bill's progress through the Lords, and watch for any commencement and transitional regulations. Check what the law says on the date you are relying on it, not what you have read about it online.

General information only, not legal advice. If you are dealing with a family court case, speak to a solicitor, or an independent McKenzie Friend, about your own circumstances.