Finding a presumption where there may be none: Part 1
Repeal of a domestic abuse ‘statutory presumption’
This morning Joshua Rosenberg at
and The Guardian both reported that the government is said to be proposing to repeal the statutory presumption that both parents should remain involved in their children’s upbringing following a separation. Courts will no longer work on ‘the presumption that having contact with both parents is in the best interests of a child’ said The Guardian.
But what ‘presumption’ I wondered? Or is this perhaps what the Ministry of Justice Review – or its press release – says? I looked back to the Children Act 1989 (CA 1989), the present originating statute to deal with children and any question of ‘harm’ to them. What is the existing law? What amendments have there been to CA 1989 s 1 which has given rise to the ‘presumption’ assertion. To what extent do terms such as ‘harm’, as applied to children and to family breakdown, echo throughout the existing law?
In these notes on the law and its application to the subject of harm to children by parents, alongside domestic abuse to children and parents (almost invariably their mother), I seek to show:
(1) That the authors of the Review (full reference later) are seeing an issue where none, in legislative terms, exists.
(2) I plan to show, very much in outline and secondly, how the existing law works, and what a disgraceful muddle it is.
(3) Finally I propose to show how the present law can operate already to help children who have been abused by their parents. As I see it, if the current law is properly organised, it can serve the needs of children and parents in family proceedings.
Presumption as to a presumption
An immediate issue with the report being considered here – namely Review of the Presumption of Parental Involvement Final Report, Ministry of Justice, October 2025 https://assets.publishing.service.gov.uk/media/68f5f5c206e6515f7914c7e3/Review_of_the_Presumption_of_Parental_Involvement_Final_Report_.pdf – is that its authors see a problem, but suggest a time consuming response, namely legislation when time permits. However, as I shall seek to show in Part 2 of this short series the law already exists. It just needs to be better organised and not set out in such a muddled way. The law is provided for already.
First what do the authors of the Review regard as ‘the presumption of parental involvement’ as they call it. The Glossary at ix describes the ‘presumption’ as:
Presumption of parental involvement (also referred to in this report as ‘the presumption’): refers to Sections 1(2A), (2B) and (6) of the Children Act 1989 which requires courts, in certain cases, to presume that, unless the contrary is shown, the involvement of a parent (to whom section 1(6) applies) in a child’s life will further that child’s welfare. The legal basis of the presumption is laid out in more detail in Section 1.1 and the flowchart that follows it.
This presumption as to a presumption is emphasised by para 1.1 of the report:
When a court in England or Wales is considering whether to make a child arrangements order, it must consider what is known as ‘the presumption of parental involvement’, which is referred to in this report as ‘the presumption’.
Amendment to Children Act 1989 s 1
CA 1989 s 1 (entitled ‘Welfare of the child’) as originally drafted was elegance and drafting simplicity itself. It aimed to create a small number of statutory assumptions on which family courts (magistrates, county courts, High Court judges and higher) would make orders as set out in CA 1989 Part 2. At s 1(1) CA 1989 says that ‘the child’s welfare shall be the court’s paramount consideration’ where a court is considering a child’s upbringing and in doing so must take account of the factors in s 1(3). (I’ll come back to the s 1(3) factors and the question of ‘harm’ in a later post.)
Section 1(4) said – still says, as the law now stands – that the court must take account of these factors where:
(a) the court is considering whether to make, vary or discharge [ie an order as to where the child is to live etc], and the making, variation or discharge of the order is opposed by any party to the proceedings; or
(b)the court is considering whether to make, vary or discharge an order under CA 1989 Part 4 (ie care proceedings etc).
Risk of suffering harm already there in Children Act 1989
Into this statutory simplicity the cumbersome Children and Families Act 2014 (CFA 2014) s 1 added a variety of provisions, none of which I can see as incorporating a statutory requirement – nor as far as I can see can the authors of the Review. What I can see is that at every statutory turn the authors of the ponderous s 1(6) make it clear that any requirement of the new provisions define a ‘parent’ as (CA 1989 s 1(6)) within the terms of contested proceedings under CA 1989 Part 2 where that parent is –
(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.
If a statutory presumption is looked for CA 1989 s 1(2A) was added by CFA 2014 and says when it considers making a CA 1989 Part 2 (eg a child arrangements order):
(2A) A court [must] presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.
And it is in that ‘unless the contrary is shown’ and the harm provisions of s 1(6) that evidence of domestic abuse (as variously defined in various statutory provisions) lies.
The Review’s conclusions of the court’s reference to CA 1989 s the court is point s 1(2A) and (6) was:
3.6 … When it was referenced, it appeared that the presumption was highlighted as only one of a number of factors the court considered when making a child arrangements orders, and that child welfare remained the central consideration. The Children Act 1989 is clear that child welfare should be the court’s paramount consideration. From the Review evidence, it did appear that the decision-making steps inherent in section 1(2A) and (6)) of the Children Act 1989 were not expressly referred to by courts when they made final decisions, though it may have factored into earlier decisions made by the court (or the parties) that were not referenced in written or oral justifications.
This surely misunderstands the judicial job. The job is to take account of the law, eg as instanced in CA 1989 s 1(6)).
David Burrows
22 October 2025