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.