In October 2025, the government announced its intention to repeal the presumption of parental involvement that currently applies when the court considers applications for child arrangements orders in private law cases.
The genesis of this review was Claire Throssell’s ‘selfless campaign’ to bring about a change in the statutory legislation. Her sons Jack, 12, and Paul, nine, were killed by their father in 2014 after the court ordered there be five hours of unsupervised contact a week.
The Ministry of Justice had published its 2020 report assessing the risk of harm to children and parents in private law cases recommending a repeal. The repeal of the presumption has since been granted parliamentary time within the Courts and Tribunals Bill, which is awaiting scrutiny at the report stage having been reintroduced in May 2026.
The current position
Practitioners will be very familiar with the concept of parental responsibility established in sections 2 to 3 of the Children Act 1989: the welfare checklist under section 1(3) to which the court shall have regard when considering whether to exercise its powers to make a child arrangements order under section 8 of the act; and the overriding welfare and non-intervention principles arising under sections 1(1) and 1(5) respectively.
Practitioners will also be familiar with section 11 of the Children and Families Act 2014 which amended section 1 of the Children Act to provide that the court is to presume – unless the contrary is shown – that the involvement of a parent in a child’s life will further the child’s welfare.
While section 11 was not intended to fetter the exercise of the court’s powers under section 8 in accordance with each of the principles above, its purpose was to establish a presumption that the involvement of both parents would further a child’s welfare, except where that presumption was rebutted by evidence to the contrary.
In addition to providing reforms to improve services for vulnerable children and their families, the intention of the government at the time of the introduction of the 2014 act was to reinforce the importance of children
having an ongoing relationship with both parents after family separation, and to encourage separated parents to adopt less rigid and confrontational positions with regard to the arrangements for their children.
Why is it happening?
The 2025 review considered 32 academic papers, analysed 245 unpublished court judgments, and investigated the experiences of parents from ethnic minorities within Children Act proceedings, and parents in proceedings involving allegations of serious sexual abuse.
The review identified that, where there was no risk of harm, the involvement of both parents generally had a positive impact on child welfare. Moreover, lower levels of father-child involvement were associated with worse child welfare outcomes. However, there was little or no evidence available to identify the impact on child welfare where no or substantially limited involvement was ordered with a parent.
The report also found that the high incidence of orders for direct contact, and evidence that direct involvement was sometimes ordered in cases with indicators of high risk, suggested that orders were being made for direct contact between children and parents who posed a risk of harm to their children.
The review concluded that the current ‘no stone unturned approach’ was capable of furthering a child’s welfare, but that the ‘apparent high incidence of orders where there were indicators of risk’ could leave children at ‘ongoing risk of harm’.
The review attributed this to the statutory presumption of parental involvement and also to a ‘positive duty’ placed upon judges to promote contact arising from the European Convention on Human Rights. This required the court to consider all alternatives before ordering no involvement.
What will it mean for separated parents and children?
The government has been consistent in articulating its commitment to strengthen protection for children and survivors of domestic abuse, for which it should be applauded. The Victims and Courts Act, which received royal assent on 29 April, enables the court to restrict the exercise of parental responsibility by a parent convicted of a serious sexual offence against a child or in connection with a child conceived as a result of rape.
Critics of the proposed repeal have raised concerns that it undermines the principle acknowledged in the review that the involvement of both parents has a positive impact on child welfare; that the court has the ability to rebut the presumption where there is evidence to support doing so; and that the court can, and frequently does, build in safeguards and incremental arrangements.
Furthermore, critics have warned that repeal will lead to more rigid and confrontational positions, making it harder to resolve disputes in non-court dispute resolution. They further contend that repeal undermines the right of the child to family life under Article 8 of the ECHR and to a relationship with both separated parents under the UN Convention on the Rights of the Child. Above all, critics remain concerned that the non-resident parent will be perceived as a less valuable parental figure.
What is common ground, however, is that far greater resources for the court, CAFCASS, legal aid and other agencies identified at section 11.9 of the Ministry of Justice’s own 2020 report are essential in protecting children and survivors of domestic abuse. They also enhance the voice of the child in proceedings, which child-focused courts have only just begun to address.
Neil Graham is partner and co-founder of G&G Law, London
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