The presumption in favour of children having contact with both parents will be repealed to safeguard children from abuse
The government have recently announced that it will repeal the current presumption that it is in the best interests of a child to have contact with both parents. This change follows a new study conducted by the Domestic Abuse Commissioner, in partnership with Loughborough University, which has revealed that domestic abuse is a feature in the vast majority of private law children cases. The findings come from a pilot of a new Family Court Review and Reporting Mechanism, designed to assess how effectively family courts are identifying and responding to abuse.
The pilot revealed that domestic abuse is not an exceptional issue in private law children cases, but rather, it pervades it. The report found that the family courts are not adept, or consistent at identifying domestic abuse adequately, especially where the abuse is not physical, and coercive or controlling behaviour can be more difficult to evidence and define. In 76% of cases involving domestic abuse psychological or emotional abuse was raised, therefore it is pertinent that the courts can consider how this abuse shall be dealt with in children matters.
Pictured: Melissa Jarvis
Pro-contact culture
The study found that many professionals had an underlying assumption that contact should proceed despite abuse being present. The abuse was frequently not recognised as an “active issue” or taken seriously with regard to the type of contact children would go on to have with the abusive parent. In more than half of the cases reviewed, unsupervised overnight contact was ordered. Nicole Jacobs, the Domestic Abuse Commissioner stated that “No child should be compelled to spend time with an abusive parent if it is unsafe.”
The study expresses concern that children’s perspectives are rarely heard in a meaningful way during the proceedings, and their voices are often lost in the process. It also notes concern that the parent who has suffered abuse may not raise any objection to unsupervised contact to avoid being labelled as alienating or hostile. The study concludes that the minimisation of coercive and controlling behaviour, and emotional abuse on a child is dangerous and the courts need to reframe the starting point in children’s proceedings to ensure safety is at the forefront of their mind.
A recent report by Women’s Aid revealed that over the past nine years, 19 children have been killed by adults who had contact with them despite a documented history of violence.
Responding, Justice Minister Alison Levitt KC said:
“The horrors that domestic abuse can bring on children are unspeakable … that’s why we’re reforming the family courts.”
Conclusion
The decision to repeal the presumption is a welcome reform and should lead to better outcomes for children in cases where domestic abuse of any form is an issue. However, to implement the new law successfully there needs to be ongoing awareness of domestic abuse amongst judges and legal professionals to ensure that all forms of abuse can be tested effectively.
The issue of delay in family proceedings also needs to be urgently addressed so that important decisions for children can be made as quickly as possible.
A further issue that needs to be reviewed is the availability of legal aid in private law children proceedings. It is very concerning that the Domestic Abuse Commissioner found evidence of survivors of abuse being forced to navigate proceedings without legal representation. Although legal aid is available for cases involving domestic abuse, survivors are often prevented from accessing this support due to legal aid being means tested. A review of the current allocation of legal aid is necessary to enable survivors to effectively engage in the legal process.
By Melissa Jarvis, paralegal at Hopkin Murray Beskine solicitors.
How can we help?
The family team at Hopkin Murray Beskine solicitors is experienced in dealing with a wide range of cases where domestic abuse has been raised as a concern. We can provide support and specialist advice in respect of children matters, separation, and finances upon divorce, and we can also advise you in relation to any protective orders that might be needed such as non-molestation orders and occupation orders.
If you need advice in respect to matters involving domestic abuse, then contact our family law team on 020 7272 1234 or email the team directly at: FamilyPrivate@hmbsolicitors.co.uk.
Sources
To access the full report by the Domestic Abuse Commissioner: Everyday-Business-full-report-web.pdf
To access the full report by Women’s Aid: Child-Homicides-2025-Web-Final.pdf.
