As a family solicitor working daily within the Children Act 1989 framework, I have seen both the strengths and shortcomings of the current presumption of contact. The government’s proposal to repeal this presumption in private law children cases is framed as a step forward for the protection of victims of domestic abuse. Yet, as those of us in practice know, reforms made in haste can often have unintended and far-reaching consequences.
The current legal framework of the act establishes that, unless there is evidence to the contrary, a child’s welfare is generally served by having a relationship with both parents. It is not an absolute right – the child’s welfare remains the court’s paramount consideration. But it provides an important starting point for judicial reasoning and parental expectations alike.
The proposed repeal seeks to remove even that starting assumption. It stems from concerns that the presumption can sometimes be misapplied, leading courts to give contact priority over safety where abuse is alleged. Those concerns are valid and serious. Yet, in seeking to protect some, we risk eroding the rights of many others and, crucially, the best interests of children who benefit from stable, meaningful relationships with both parents.
In practice, the repeal could make it easier for one parent to marginalise the other through conflict, hostility or alienation, long before any factual findings are made. The balance of power in already-fractured families could shift decisively towards whichever parent controls the narrative first. For many of the parents I represent, the damage is done not by the final order, but by the months or years of reduced contact while allegations remain untested.
We have to ask – are we improving the system, or simply changing the lens of bias? Removing the presumption will not automatically create safer outcomes. If anything, it risks encouraging a culture of pre-emptive restriction, ‘better safe than sorry’, where cautious courts may err towards limiting contact even in the absence of proven harm.
The real issue is not the existence of the presumption. It is the inconsistency in how the courts apply it. There is a world of difference between a well-reasoned judgment that weighs contact against risk, and one that treats the presumption as a tick-box exercise. Better judicial training, early case screening and robust fact-finding are far more effective tools than legislative deletion.
We should also not ignore the impact of the Pathfinder model currently being rolled out in several courts, including Birmingham. Designed to fast-track cases and reduce delay, it often shortens opportunities for fact-finding and cross-examination. In that context, removing the presumption of contact may create a perfect storm – less scrutiny, less guidance and more room for subjective interpretation.
This is not about preserving outdated ideals of ‘shared parenting’. It is about recognising that, in most cases, children thrive when they have access to both parents who love them, even if those parents are no longer in a relationship. A presumption of contact does not mean a presumption of safety, nor should it. But neither should safety concerns become a pretext for exclusion where no risk has been established.
The debate should not be framed as safety versus contact. It should be safety and stability. Both are essential to a child’s welfare and both deserve legislative protection.
It is right that we continue to strengthen protections for those who experience abuse. But reform must also recognise the diversity of family circumstances and the evidence that, for most children, safe and consistent involvement of both parents supports emotional wellbeing and identity development. The Ministry of Justice’s 2023 review of the presumption of parental involvement found that it was being implemented inconsistently and only rarely disapplied. While the government has announced an intention to repeal it, the statutory alternative framework has not yet been clearly defined – a gap that risks uncertainty for both parents and practitioners.
If we truly want to reform the family courts, we need nuanced, evidence-based reform, not reactionary measures that swing the pendulum too far in the other direction. Removing the presumption may silence one problem, but it will amplify others, such as parental alienation, protracted litigation and children growing up with fractured identities.
The law must protect the vulnerable, but it must also uphold fairness. We can and should do both.
Sana Saddique is managing director of Collective Law Solicitors, The Family Law Strategist, and a board director of Birmingham Law Society
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