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Presumption of Parental Involvement - A new provision by Kathryn Peat

05/11/14

Section 11 of the Children and Families Act 2014 came into effect on the 22nd October 2014.  It amends section 1 of the Children Act 1989 to include a provision relating to “parental involvement” in the assessment of a child’s welfare.

This provision generated a great deal of discussion and controversy when the Bill was passing through Parliament.  The 2011 Family Justice Review had considered the issue of whether the family courts should approach cases with a view to ensuring “co-parenting”, “shared parenting” or an ongoing role of both parents in a child’s life after separation.  The interim report proposed the amendment of primary legislation to include an amendment to the Children Act 1989 to reinforce the importance of a child continuing to have a “meaningful relationship” with both parents after separation, together with the need to protect a child from harm.  Following consultation, the final Review recommendations did not include such an amendment.  Its’ conclusions, when it came to the prospect of introducing a presumption of shared care were firm:

“Having thoroughly considered the evidence, we remain firm in our view that any legislation that might risk creating an impression of a parental “right” to any particular amount of time with a child would undermine the central principle of the Children Act 1989 that the welfare of the child is paramount”.

The Review’s final recommendations were that there should be no amendment of the Children Act to introduce a presumption of ongoing parental involvement (as opposed to shared care).

On the 6th February 2012 the Government published its response to the recommendations of the Family Justice Review.  It said that notwithstanding the recommendations of the Review “many people continue to have concerns about the proper recognition of the role of both parents by the courts”. 

The Government made it clear that it would include an amendment to the Children Act in the Bill to encourage what it called “co-operative parenting following family separation”.  The Review had been influenced by evidence received from Australia where a provision for “meaningful relationship” was included in their 2006 Family Law reforms.  Subsequent evidence showed increased litigation as a result and that their change contributed to damage to children because the term “meaningful” had come to be measured in terms of the quantity of time spent with each parent rather than the quality of the relationship for the child.  The Government here said that it was mindful of the lessons to be learnt from the Australian experience of legislating in this area and which had led the Review to urge caution.  Our Government said that it would consider very carefully how legislation could be framed to avoid the pitfalls of the Australian experience, “in particular that a meaningful relationship is not about equal division of time but the quality of parenting received by the child”.

The result was section 11 of the Children and Families Act 2014.

This new section (2A) provides that in the relevant sub-sections a court is “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”.

Sub-section (2B) states “In sub-section (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time”.

Sub-section 6 states that in sub-section (2A) “parent” means parent of the child concerned.  That parent

a)         is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and

b)         is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

It certainly seems that the wording of this new provision creates a new presumption, namely that the involvement of a parent in a child’s life will further the child’s welfare.  However, that presumption will only apply if the parent’s involvement in the child’s life will not put the child at risk of suffering harm.

The wording in (6b) “unless there is some evidence .. to suggest” that a parent’s involvement would put the child at risk of harm would seem to indicate that the presumption could be overridden relatively easily.  However, that evidence must suggest that the risk would exist “whatever the form of the involvement” and we take that to mean that where an identified risk could be dealt with and overcome by a more limited form of involvement, such as supervised contact or indirect contact, then the parent will be brought back within the relevant sub-section.  There are not many cases where the facts are so compelling as to suggest that any form of contact with a child will lead to a risk of harm.  This should mean that most parents will fall within the sub-section and will therefore benefit from the presumption of involvement.

The new provisions apply when the court is deciding whether to make an order for parental responsibility in favour of a father or a second female parent (but not in favour of a step-parent) or when the court is deciding whether to make, vary or discharge a section 8 order.

The new provisions apply only to parents.  This means that residence order holders, step-parents with and without parental responsibility and other individuals who may have played a full parental role in the child’s life will be excluded from the presumption.

It is important to remember that the welfare of the child remains paramount and that this legislative change does not endow any parent with a right to either an equal division of a child’s time or to any other fixed period or proportion of time.

If you have any queries about this or any other family or children related matters please contact Kathryn Peat, Roger Cobden-Ramsay, Beth Mason or Georgia Day.

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