Presuming the Status Quo? The Impact of the Statutory Presumption of Parental Involvement

The courts’ treatment of domestic abuse within private law child arrangements disputes has attracted significant concern for many years, most recently culminating in the call for major reform by the Ministry of Justice’s expert review into the courts’ practice. The Ministry of Justice has since committed to a follow-up review into the operation of the statutory presumption of parental involvement (Children Act 1989, section 1(2A)). This paper provides timely insight into the impact of this presumption in cases involving domestic abuse, presenting the findings from the first empirical study to explore its impact on the lower courts. Forty-one semi-structured interviews were conducted with judges, barristers, solicitors, Cafcass practitioners and representatives from domestic abuse organisations. It also explores perceptions of whether the statutory presumption ought to be reversed to introduce a presumption against contact in domestic abuse cases. It is argued that whilst the statutory presumption does not appear to be changing the courts’ practice, its harm lies in the reinforcement of a dominant narrative that children ‘need’ contact. Whilst a presumption against contact might not hold the answer to changing this narrative, there remains an urgent need to reappraise the approach taken to the resolution of cases involving domestic abuse.