The Children and Families Act 2014 amended s1 Children Act 1989 to include a presumption that the involvement of a parent in a child’s life will further the child’s welfare unless there is evidence to the contrary. It is a rebuttable presumption well known to all. The operation of the presumption is broad; it confers no absolute principle that children should live with both parents, and it creates no starting point as to the type of contact or the division of time. Since the introduction of the presumption, non-resident parents applying for contact or shared care have benefited from the presumption from the very earliest stage of the process and indeed, often, to its conclusion.

It is a story well known to all practitioners in the private law discipline. The C100 is issued, the wheels of safeguarding turn and Cafcass produce their letter to the court in advance of the FHDRA. The parents wait with bated breath. The applicant draws comfort from the knowledge that they begin their climb equipped with the presumption at their side.

Sometimes the letter makes for happy reading with no PNC trace, no local authority involvement, no allegations of domestic abuse; in short, no identifiable risks. The applicant reads with delight that the initial recommendation to the court is the introduction, gradual or otherwise, of contact with the child. The presumption has ridden to their rescue.

All too often, the letter makes for dismal reading. The resident parent has raised allegations of abuse. The local authority knows the family well. The Richardson Gang would blush to see the PNC entries. The initial recommendation is that there should be no contact pending a s7 report or a finding of fact hearing. The presumption has been rebutted.

Even when a case involving allegations of abuse finds its path via safety planning in a s7 report or exploration and determination through finding facts, the presumption continues to exist, albeit partially eclipsed or fully rebutted in the event of findings. Applicants can rely, provided the notion of their being a safe parent is not holed below the waterline, at least on the presumption continuing to assist them in some form of indirect or supervised contact.

After lengthy campaigning from, among others, Women’s Aid, the Ministry of Justice published the final report in its Review of the Presumption of Parental Involvement. It focuses chiefly on private law and devotes only a little commentary to public law.

The report’s evidential basis admits of some question. Page 12 of the report is frank in its assessment of the limitations of the ‘availability, access and quality of data’. It is a document with more frequent recourse to ‘could be’ than ‘is’. Much appears to be based on self-reporting and ‘stakeholder workshops’. There is reliance on ‘qualitative evidence’ regarding perceived differences in treatment of men versus women as well as other protected characteristics. The MoJ’s Harm Panel accuses the Family Court of ‘systematic minimisation’ of domestic abuse, a grave charge somewhat at odds with the present trajectory of case law so familiar to both private and public law practitioners.

The report features commentary at p26 that should be of interest to all practitioners:

Where findings were not made, or not pursued by the victim, the Harm Panel found that this could leave children and victim parents at risk (MoJ, 2020a). The Panel stated that while the court proceeded on the basis that the alleged abuse had not occurred, the absence of findings did not necessarily mean the absence of risk. This concern was also raised by frontline professionals who attended the Review’s stakeholder workshops, as they felt it could leave the court without a full understanding of the child’s circumstances and could result in practitioners and the court being closed off to new risks.

How the presumption interacts with the burden of proof and the effect of a nil finding is a question for another day. The more pressing question (to the extent that the government’s airy reference to ‘when parliamentary time allows’ carries any particular feeling of urgency), is what this means for practitioners and parties.

The first issue is likely to be the effect of the lapse of time. Even in cases in which applicants have filed their C100 without delay, months could pass before their FHDRA alone. With s7 reports from an overburdened Cafcass running in some areas to sixteen weeks or more and waits for court time for fact finds running into months, applicants may find that without a presumption of involvement tipping finely balanced scales on some form of interim contact, the damaging effects of time passing in the form of relationship decay become more acute.

The second will be the effect on directions at the earliest phase of a case’s lifespan. As things stand, the court will at the FHDRA query why there should not be contact rather than assessing from a neutral starting point which way welfare militates. If this starting point is removed, the court will stand at a crossroads with no signpost indicating which way to go if all other things are equal. If the resident parent opposes contact for reasons which would presently be insufficient to rebut the presumption, there will no longer be any factor on the other side of the equation on which the applicant can rely. The applicant will say they believe the introduction of contact to be in the child’s best interests; the respondent will disagree. With no statutory nudge, things will stand on the edge of a knife.

So once the presumption is repealed, what will happen at your FHDRA? The court will be obliged to conduct a holistic analysis with the application of the welfare checklist. It will take into account the risk of harm to the child or the resident parent if interim arrangements are put in place. It will consider all of the factors including, for example, the extent to which there was a developed relationship between child and applicant before the cessation of contact.

How will this be different to the present system? The judge, no longer assisted by the yardstick of the presumption, will be obliged to start not by assuming that contact will be beneficial until something says it isn’t, but instead by asking whether it might or might not and whether the court is equipped to make the decision there and then. There will be more reports and more assessments to answer the question that would once have been answered by the presumption absent reasons to the contrary. In all probability, there will be more delay. We can perhaps expect to see wishes and feelings attract more weight, possibly including those a party says have been expressed to them, as courts search for decisive factors to reference when progressing cases.

Can the heartbreaking fate of the children of Claire Throssell be laid at the door of the presumption? It is difficult to say. In any case of the type, the court is faced with a choice

between ordering some form of contact or ordering nothing at all. Nemo mortalium omnibus horis sapit. How exactly the presumption came to outweigh the factors pointing away from contact will only ever be known fully to the judge. Only if the presumption was the factor leading to the decision to permit contact can it be blamed for the tragic outcome.

The government starts from the position that this measure will contribute to the reduction of violence and harm to women and girls. This can be so only if too much weight is presently being given to the presumption to the exclusion of other considerations. It is, therefore, perhaps a case in which training on the appropriate weight to be given to allegations of harm is of greater importance, and more likely to achieve the objective, then repealing the statutory presumption.

The question may well be academic. Many are the demands on parliamentary time. There is no timetable attached. Practitioners are unlikely to see a sea change in the near future as the government addresses itself to other issues.

When, or perhaps if, we see the legislative change, what is certain is that advising both applicants and respondents will become more difficult. The anxious client wanting to know whether the FHDRA will result in some form of interim contact will find the advice they can be given less confident. Gone, or mostly gone, will be the days when findings of abuse after a fact finding hearing do not necessarily preclude interim contact where the findings can still be the subject of adequate safety planning.

In short, practitioners may find that little changes at the coalface. Judges will continue to weigh all the factors in making a decision. The effect of the change will be a slanting of the balance of power in favour of respondents; this may, however, scarcely be felt in those cases in which allegations or findings are made which would rebut the presumption anyway.

Whether it will happen remains to be seen; whether it will make any practical difference will not be seen for some time longer.

What is certain is that repealing the law will prove a quicker and easier process than dislodging what for many will be a well-established and ingrained instinct in favour of contact.