For years, English family law has operated with the starting point that children generally benefit from having both parents involved in their lives following a relationship breakdown, under Section 1(2A) Children Act 1989. This presumption was established to ensure children maintain meaningful involvement with each parent following separation.
However, a seismic shift is underway. Under proposed new laws set out in the Courts and Tribunal Bill, this pro-contact presumption is being removed and will be replaced with the courts focusing exclusively on the child’s welfare as the most important consideration. Each case will be assessed on its own facts, without the scales being tipped in either direction.
The reason for this change is to ensure that a child’s safety and stability are the main priorities from the start.
What this Change means for you.
The ramification of this shift means that a parent is no longer required to disprove a legal assumption. Instead, the court will examine the parents’ conduct, and their ability to put the child first and any specific risk factors.
While the presumption is disappearing, the “Welfare Checklist” (Section 1(3) Children Act 1989) remains the central tool. It ensures the court considers the child’s physical, emotional and educational needs, their wishes and feelings balanced against their age and maturity, any harm the child has suffered or is at risk of suffering, the impact of changing their current living arrangements and how capable the parents are in meeting their children’s needs.
When contact has been stopped – What should you do?
Stopping contact unilaterally without good reason can be viewed negatively by judges. If there is an immediate risk of harm, documenting everything can be helpful. Seek legal advice early to obtain details of the type of orders which could assist in the circumstances prevailing at the time. In cases of domestic abuse contact the police who will alert Child Services.
If your contact to your child has been stopped, the impact of delay can be profound and potentially damaging.
Where appropriate:
- Attempt direct calm communication with your ex-partner, or through a solicitor’s letter.
- Keep a record of missed contact, messages, and any reasons given for the refusal.
- Consider whether mediation or another form of dispute resolution such as Arbitration (like a private judge – faster and more flexible than the public court), or Collaborative Law (where both parents and their solicitors sit in a room to try and agree a resolution) is appropriate.
- Apply to the court for an order under section 8 Children Act 1989 on form C100. if an agreement cannot be reached. If there is an existing court order in place and the other parent is breaching it, you can apply to enforce the order.
The court system is inundated and making an application could take several months and sometimes over a year for the matter to be fully determined. This does not mean that the court cannot make orders to allow for contact before the case is finished provided it is safe to do so and initial safeguarding checks have been carried out.
Disputed Allegations – How will they be addressed
When allegations of domestic abuse, substance misuse, or sexual abuse are raised, they sit at the heart of why the presumption was repealed. Under Practice Direction 12J of the Family Procedure Rules, the court must identify these issues early to avoid cases drifting.
The court is likely to direct the parties to file a structured document (called a “Scott Schedule”) in which the alleging parent sets out the specific allegations which are disputed. The other parent will be directed to reply. If both parties make counter claims each must prepare and respond to this document.
If the allegations are serious enough to impact the final welfare decision, a “Fact-Finding” hearing will be held. This is where a judge after hearing all the evidence, decides on the balance of probabilities (is it more likely than not) whether the events occurred. Those findings then inform all subsequent welfare decisions.
Professional Accountability: Re E (A Child) (2025) EWCA Civ 1563
As the court moves away from automatic presumption, it has also raised the bar for the quality of evidence. There is now a stronger focus on respecting family life (Article 8: Right to Family Life) and to ensure the court process is open and transparent.
The sad case of Re E is an example of the problems that can occur when the steps taken aren’t quite right and expert evidence isn’t reliable. It highlights how the legal system must remain fair even in high stress situations.
This case involved claims that the mother was turning the children against the father (alienating behaviour) alongside various allegations of abuse. After a delayed hearing where the judge considered all the facts and heard from the parties in respect of the disputed allegations (‘a Fact-Finding Hearing’), the court found no evidence to support the claims of abuse against the father, although sadly the children had already been impacted severely by the mother’s actions.
Furthermore, a last-minute court order that was obtained to stop the father from holding a pre agreed funeral service for his daughter, was found to have breached his human rights to a fair trial because he was not provided with reasonable notice in advance of the application being made, preventing him from having sufficient opportunity to present his case.
The evidence of a private therapist was found to be unsound, she wanted to remain anonymous in the published judgement to protect her reputation, but the court did not give permission.
This case sets important new standards to protect parents.
- Transparency and Public Accountability:The Court of Appeal ruled that the public has a right to know how decisions about children are made. This means professionals like social workers, therapists, and psychologists cannot hide behind anonymity to protect their reputation if their work is flawed. You have a right to know exactly why a decision about your child was made.
- Fairness in the Legal Process: Every parent has the right to a fair trial. Procedures must be followed correctly, regardless of who is involved. Serious allegations must be handled properly, ensuring there is no bias or reliance on stereotypes regarding who is a victim or a perpetrator.
- Speedy Decisions on Facts: When serious allegations are made, they must be decided quickly. Evidence needs to be tested in a “fact-finding hearing” without unnecessary delays to ensure the right decisions are made for the child.
A New Chapter – But the Child Remains Central
The end of the presumption of parental involvement is not the end of one parent’s rights in a child’s life, nor is it a green light for the other parent to unilaterally stop or reduce contact. It is something more nuanced. Ultimately it is an instruction to the court to look at the child and not base a decision on assumptions, to ensure any order made is safe with the child’s welfare always being paramount.
Whatever side of the contact divide you find yourself on, get advice early and keep the focus where it belongs on your child and their wellbeing.
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