John Bolch asks: whatever happened to the presumption of parental involvement?

Family|April 28th 2014

Section 11 of the Children and Families Act  2014 contains the ‘presumption of parental involvement’. The presumption means that when a court is considering whether to make an order relating to a child (in particular a child arrangements order) it is to presume, unless the contrary is shown, that involvement of both parents in the life of the child concerned will further the child’s welfare.

I had been labouring under the misapprehension that section 11 came into effect on the 22nd of April. I think I had just assumed that because other sections in the same part of the Act came into force on that day, in particular section 10 (the requirement that anyone wishing to make an application to a family court must first attend a family mediation information and assessment meeting (‘MIAM’)) and section 12 (replacing residence and contact orders with child arrangements orders).

But section 11 was not brought into force on the 22nd of April. In fact, it does not, as far as I know, have a commencement date. Provisions of the Act have commencement dates as far away as the 1st of September, but there is no mention of section 11.

Section 11 does, of course, have something of a tortuous history. It had its origins in the demand by fathers’ rights groups and others that there should be a statutory presumption that children should spend equal time with each parent – the ‘shared parenting’ presumption.

The demand was considered by the Family Justice Review. The Review concluded that there should not be such a presumption, as it could create an impression of a parental ‘right’ to a particular amount of time with a child, which would undermine the central principle of the Children Act 1989 that the welfare of the child is paramount.

Despite this, the Government bowed to the loud voices in favour of the presumption and decided to proceed with it, albeit in the watered-down form of the presumption of parental involvement.

So, what has happened to the presumption? Why hasn’t it been brought in yet? When will it be brought in, and will it make much difference when it is?

I can’t answer the first two of those questions. Perhaps it was thought that it was too much for the courts to consider, along with all of the other changes. Maybe someone in the Ministry of Justice or the Department for Education has a future commencement date in mind.

Or maybe they don’t. There are those in the fathers’ rights community who doubt that it will ever be brought in, and even that it was never intended to be brought in. It was all just a sop to those loud voices, and a cynical attempt by the Government to gain popularity. I couldn’t possibly comment.

I could, however, comment upon the last of the above questions: will (or perhaps it should be ‘would’) the presumption make much difference?

I don’t think I am alone amongst family lawyers in believing that the presumption will not make much if any difference to the decisions that the family courts make, or the matters that they consider when coming to those decisions. It has long been accepted that a child’s welfare is best served by having as full as possible a relationship with both parents, unless there is a good reason why this should not be so. Stopping to consider section 11 will not, therefore, alter anything.

We will have to wait and see what happens to section 11, but it may be that it will matter little whether or not it is introduced.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Paul says:

    John, it always helps to have the principle hammered down in writing as a statutory principle. Police, for example, have always had the power under common law to make domestic violence disclosures in the interests of a person’s safety. Clare’s Law as such wasn’t required. The power to disclose already existed. However, police and women’s groups said the common law principle needed statutory backing and so Clare’s Law came into effect. It is just the same with the principle of both parents bringing up a child. This one, far more than Clare’s Law, certainly needs statutory backing; too many fathers have been shafted with minimal awards of contact in the past and children have lost out accordingly. The law ought to reinforce the principle that both parents matter and it needs to be brought into effect pronto if it hasn’t already. I shall write to my MP and ask him the question you raise.

  2. Kip Miller says:

    John Bolch, I do not know if this post will answer your question. Shared Parenting legislation in the Children & Families Act was the subject of a boxing match. ROUND ONE saw the Justice Review (Norgrove Report) decide that Shared Parenting was not in the interests of children. ROUND TWO saw the intervention of the UK public. They did not think this was fair! ROUND THREE saw the government respond to the feeling in society with a consultation document. ROUND FOUR saw the government include Shared Parenting legislation in the Children & Families Bill. ROUND FIVE saw the rise of Baroness Butler-Sloss and the ‘(anti) Shared Parenting Consortium’. ROUND SIX was the debate held in the House of Lords which could also be seen online. Lord McNally did a sterling job in proposing the motion on Shared Parenting but was ‘ambushed’ by female opponents. (I have corresponded with him by e-mail to thank him for his efforts). ROUND SEVEN saw the KNOCK-OUT BLOW! Baroness Butler-Sloss has a view of child development based on Dr John Bowlby’s theory of ‘maternal deprivation’ from the 1950’s which saw the father play ‘second fiddle’. The Baroness does not think fathers are entitled to ‘any’ relationship with their children and has succeeded in removing both the terms ‘contact’ and ‘residence’ to be replaced by ‘involvement’ which can mean anything. Just to make sure her opponent stays down she is in the process of introducing the so-called Cinderella Law. If anybody thinks this is intended to deal with ‘wicked step-mothers’ they have got another think coming. It is already described in the media as encouraging children to ‘denounce’ their own parents and will be a charter for ‘parental alienation’. I hope this goes some way to explaining my own answer to your question and I look forward to reading further comments on this blog. Kingsley Miller

  3. Paul says:

    The presumption as drafted is a squalid bit of law anyway as well as an insult to fathers. What is required in statute goes well beyond that minimalist construction. A few more Tottenham riots plus the odd stabbing, might concentrate the mind.

  4. Father’s Day is not fun for every father - Marilyn Stowe Blog says:

    […] is in their best interests, unless such involvement would present a risk. Sadly however, this ‘presumption of parental involvement’ has not yet been brought into force but at least it represents official recognition of a kind […]

  5. William says:

    What presumption? It’s just a lottery.

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