Repealing the Parental Involvement Presumption: Reform or Redundancy?
October 2025 — Legal Commentary
The Government’s proposal to repeal Section 1(2A) of the Children Act 1989, which presumes that a child’s welfare is best served by the involvement of both parents, has been framed as a progressive step toward safeguarding children in private law proceedings. However, for many practitioners, the question remains: what practical difference will this make, given the existing framework under Practice Direction 12J (PD12J) and the chronic delays in court listings?
The Delay Dilemma
Section 1(2) of the Children Act is unequivocal:“delay is likely to prejudice the welfare of the child.” Yet, in cases where domestic abuse is alleged, the procedural necessity of fact-finding hearings if considered necessary -often delayed for months due to listing pressures—can result in prolonged uncertainty and disrupted contact. This delay, ironically, may cause more harm than the alleged risk itself, especially where interim contact is suspended pending findings.
In practice, the mere raising of domestic abuse allegations can stall proceedings, leaving children in limbo. While safeguarding is paramount, the current system lacks the agility to balance risk assessment with timely resolution. The repeal of the presumption does not address this structural issue.
PD12J: Already the Safeguard
PD12J already provides a robust framework for addressing domestic abuse in child arrangements proceedings. It mandates:
Judicial consideration of Section 7 welfare reports where risk is raised; though this is delayed if allegations are made and disputed.
Fact-finding hearings where allegations are disputed.
A requirement that any child arrangements order must not expose the child or resident parent to further harm.
The courts are already empowered to override the presumption of contact where abuse is proven or risk is substantiated. The repeal of Section 1(2A) may therefore be symbolic rather than substantive, given PD12J’s existing authority.
Judicial Discretion and the Welfare Checklist
Recent case law, including Re H-N [2021] EWCA Civ 448 and M (Children: Contact in Prison) [2024] EWCA Civ 1104, underscores the importance of judicial discretion and the welfare checklist in navigating complex contact disputes involving abuse. Courts are increasingly attuned to coercive control and emotional harm, even in the absence of physical violence.
Removing the presumption may clarify that contact is not a right, but a consideration subject to the child’s best interests. However, it does not alter the evidentiary burden or procedural steps required to establish risk.
Conclusion: Reform Needs More Than Repeal
While the repeal of the parental involvement presumption may signal a cultural shift, it does not resolve the practical challenges faced by family courts:
Delays in listing fact-finding hearings.
Inconsistent application of PD12J.
Limited judicial continuity and resources.
For legal professionals, the focus must remain on early case management, rigorous risk assessment, and timely resolution. Without systemic reform, the repeal risks being a legislative gesture with limited impact on the ground.
Jeremy Ford
Partner, Mediator and Arbitrator
Office:
Email:
Office: