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Parental involvement: a discretionary presumption

Published online by Cambridge University Press:  22 August 2018

Felicity Kaganas Open the ORCID record for Felicity Kaganas [Opens in a new window]
Felicity Kaganas*
Affiliation:
The Brunel Law School, Brunel University, Uxbridge, UK
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*Author email: [email protected]
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Abstract

Section 1(2A) of the Children Act 1989 establishes a statutory presumption that ‘involvement’ of both parents in their children's lives after divorce or separation is in children's best interests. This paper sets out to examine what effect this had had. The aim of the legislation was to improve the transparency and clarity of judges’ reasoning. This would help to reduce the numbers of parents litigating and would placate fathers’ rights groups who were damaging confidence in the family justice system. Drawing on a sample of reported cases, this paper concludes that, at the higher levels, courts are not implementing the presumption. Nor has the presumption succeeded in placating fathers’ rights groups or significantly reducing the number of cases coming to court. It appears that the presumption has had little impact and the government's aims have not been realised. However, where it is having some impact, the presumption may be putting mothers and children at risk.

Keywords

presumptionparental involvementChildren Actchild arrangements order
Type
Research Article
Information
Legal Studies , Volume 38 , Issue 4 , December 2018 , pp. 549 - 570
Copyright
Copyright © The Society of Legal Scholars 2018 

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Footnotes

†

My thanks to Alison Diduck, Christine Piper and the anonymous reviewers for their comments.

References

1 Children and Families Act 2014 (Commencement No 5 and Transitional Provision) Order 2014, SI 2014/2749.

2 Kaganas, F ‘A presumption that “involvement” of both parents is best: deciphering law's messages’ (2013) CFLQ 270Google Scholar at 271.

3 See J v C [1970] AC 688 at 710, interpreting the earlier incarnation of the welfare principle contained in the Guardianship of Minors Act 1971, s 1.

4 E Timpson HC Public Bill Committee, Hansard HC Deb, at p 297, 14 March 2013.

5 Report: Pre-Legislative Scrutiny of the Children and Families Bill (TSO, 2012) para 140, available at https://publications.parliament.uk/pa/cm201213/cmselect/cmjust/739/739.pdf (last accessed 10 July 2018).

6 The Office for National Statistics reported that 93% of resident parents were female, whereas 89% of non-resident parents were male: Blackwell, A and Dawe, F Non-resident Parental Contact (London: ONS, 2003)Google Scholar para 1.3.

7 The Advisory Board on Family Law: Children Act sub-committee Making Contact Work. A Report to the Lord Chancellor on the Facilitation of Arrangements for Contact Between Children and their Non-residential Parents and the Enforcement of Court Orders for Contact. Preface (2002) para 8; see also para 6 and Appendix 3, available at http://webarchive.nationalarchives.gov.uk/+/http://:/www.dca.gov.uk/family/abfla/mcwrep.pdf (last accessed 8 July 2018).

8 [2004] EWHC 1215 (Fam) para 4. See also Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam) para 4.

9 Department for Education Children and Families Bill 2013: Contextual Information and Responses to Pre-Legislative Scrutiny Cm 8540, 2013, para 63, Annex 1 of Annex B.

10 Justice Committee Fourth Report. Pre-Legislative Scrutiny of the Children and Families Bill (2012) https://publications.parliament.uk/pa/cm201213/cmselect/cmjust/739/739.pdf (last accessed 10 July 2018).

11 Children and Families Bill 2013: Contextual Information, above n 9, para 63, Annex 1 of Annex B, available at https://www.education.gov.uk/publications/eOrderingDownload/Children%20and%20Families%20Bill%202013.pdf (last accessed 10 July 2018). See also DfE and MoJ Consultation Co-operative Parenting Following Family Separation: Proposed Legislation on the Involvement of Both Parents in a Child's Life (TSO, 2012) paras 2.1, 4.3. See also J Djanogly Hansard HC Deb Col 165WH (24 May 2012) http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm120524/halltext/120524h0001.htm (last accessed 9 November 2017).

12 Hansard Col 289 14 March 2013. See the Pepper v Hart Note provided in Westlaw.

13 The way in which this calculation was done has been criticised. See Bainham, A and Gilmore, S ‘The English Children and Families Act 2014’ (2015) 46 Victoria U Wellington L Rev 627Google Scholar at 636. The Justice Committee pointed out that a significant number of the responses came from men. In addition, the analysis did not distinguish between the responses of individuals and those of organisations and charities: Justice Committee Fourth Report: Pre-Legislative Scrutiny of the Children and Families Bill (TSO, 2012) at paras 142–143, available at http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/pre-leg-sub/ (last accessed 15 July 2018).

14 For a review of cases and literature, see Kaganas, F ‘When it comes to contact disputes, what are family courts for?’ (2010) 63 CLP 234Google Scholar; Kaganas, F ‘Managing emotion: judging contact disputes’ (2011) CFLQ 63Google Scholar.

15 M v M (Child: Access) [1973] 2 All ER 81 at 85.

16 Re M (Contact: Welfare Test) [1995] 1 FLR 274 at 281.

17 [1992] 1 FLR 148 at 152.

18 [1995] 2 FLR 124 at 128.

19 Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence) [2002] 2 FLR 334 at 364.

20 Smart, C ‘The legal and moral ordering of child custody’ (1991) J of Law and Society 485CrossRefGoogle Scholar at 486.

21 Ibid, 485–486.

22 Ibid, 486.

23 See Re D (A Minor) (Contact: Mother's Hostility) [1993] 2 FLR 1.

24 Re S (Transfer of Residence) [2011] 1 FLR 1789.

25 There were no instances of a change in residence in Hunt and Macleod's sample of 308 cases and they suggested such a measure remained unusual (Hunt, J and Macleod, A Outcomes of Applications to Court for Contact Orders after Parental Separation or Divorce (London: Ministry of Justice, 2008) p 196Google Scholar). This is also apparent from the tone of Ward LJ's judgment in Re C (Residence Order) [2007] EWCA Civ 866 at [26]. However these orders are becoming less unusual. See, eg, S (A Child) [2010] EWCA Civ 219; D (Children) [2010] EWCA Civ 496; Re A (A Child)(Residence Order) [2007] EWCA Civ 899. Compare Re B (Residence Order: Status Quo) [1998] 1 FLR 368.

26 No judge in Hunt and Macleod's sample had ever sent a resident parent to prison (above n 25 p 196) but see the more recent case of Re L-W, sub nom CPL v CH-W, ML-W, EL-W (by their guardian ad litem) [2010] EWCA Civ 1253 at [94]. The court was of the opinion that this measure should be used more often.

27 A Hill ‘Divorcing parents could lose children if they try to turn them against partner’ (The Guardian, 17 November 2017). This is welcomed by Families Need Fathers: ‘Cafcass taking parental alienation seriously at last’, https://fnf.org.uk/news-events-2/press-releases/150-press-releases-2017-archive/437-cafcass-taking-parental-alienation-seriously-at-last (last accessed 15 July 2018).

28 See also Re J-M (A Child) [2014] EWCA Civ 434 at [25].

29 [2017] EWFC B28 (Fam).

30 See eg Hunt and Macleod, above n 25.

31 See Harris-Short, S ‘Resisting the march towards 50/50 shared residence: rights, welfare and equality in post-separation families’ (2010) Jnl of Social Welfare and Family Law 257CrossRefGoogle Scholar for a review of the cases.

32 See Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124 at 128.

33 See eg Hunt and Macleod, above n 25; Kaganas (2011), above n 14; A Barnett ‘Contact at all costs? Domestic violence and children's welfare’ (2014) CFLQ 439.

34 See eg Diduck, A and Kaganas, F Family Law, Gender and the State (Oxford: Hart Publishing, 2012)Google Scholar pp 318ff; Fortin, J, Hunt, J and Scanlan, L Taking a Longer View of Contact (Sussex: University of Sussex, 2012)Google Scholar; Fehlberg, B et al. ‘Legislating for shared time. Parenting after separation: a research review’ (2011) Int'l J of Law Policy and the Family 318CrossRefGoogle Scholar; Kaspiew, R et al. Evaluation of the 2006 Family Law Reforms (Melbourne: Australian Institute of Family Studies, 2009)Google Scholar.

35 See Department for Education, above n 9.

36 Above n 25.

37 Above n 25, Summary p 241.

38 Bainham and Gilmore, above n 13, at 633.

39 Re F (Relocation) [2012] EWCA Civ 1364 at [37].

40 See also Re L, M, V and H (Contact: Domestic Violence) [2000] 2 FLR 334 at 364.

41 See eg Woodley, M (ed) Osborn's Concise Law Dictionary (London: Sweet & Maxwell, 2005)Google Scholar which defines a rebuttable presumption as a ‘conclusion or inference’ which is ‘conclusive until disproved by evidence to the contrary’.

42 Justice Committee Fourth Report. Pre-legislative Scrutiny of the Children and Families Bill (2012) para 170 https://publications.parliament.uk/pa/cm201213/cmselect/cmjust/739/73907.htm (last accessed 15 July 2018).

43 Ibid, para 173.

44 Memorandum submitted by Jane Fortin and Joan Hunt (CF14). Submission of views to the House of Commons Public Bills Committee on Clause 11 of the Children and Families Bill Session 2012–13 (March 2013) at para 8 http://www.publications.parliament.uk/pa/cm201213/cmpublic/childrenandfamilies/memo/cf14.htm (last accessed 15 July 2018).

45 Memorandum Submitted by Professor Hamilton (CF 17) Opening Statement of Professor Hamilton. Children and Families Bill Public Bill Committee Oral Evidence Session. Session 2012–13 (March 2013) http://www.publications.parliament.uk/pa/cm201213/cmpublic/childrenandfamilies/memo/cf17.htm (last accessed 15 July 2018).

46 Women's Aid Nineteen Child Homicides (Bristol: Women's Aid 2016) p 12.

47 See Barnett, above n 33.

48 See also Kaganas, F and Piper, C ‘Michael Freeman and the rights and wrongs of resolving private law disputes’ in Diduck, A, Peleg, N and Reece, H Law in Society: Reflections on Children, Family, Culture and Philosophy (Leiden: Brill Nijhoff, 2015) p 375Google Scholar.

49 See Women's Aid, above n 46, p 13. See also Thiara, R and Harrison, C Safe Not Sorry: Supporting the Campaign for Safer Child Contact (Bristol: Women's Aid, 2016)Google Scholar.

50 Para 4.

51 Women's Aid, above n 46, p 11.

52 See Barnett, above n 33.

53 Women's Aid, above n 46, p 23.

54 Ibid.

55 McCurley, C ‘Domestic violence and the impact on contact re-examined’ (2017) 41 Family Law Week 42Google Scholar.

56 The Hon Mr Justice S Cobb ‘Review of practice direction 12J. Child arrangement and contact orders: domestic violence and harm’ (2016) para 12(a), https://www.judiciary.gov.uk/wp-content/uploads/2017/01/PD12J-child-arrangement-domestic-violence-and-harm-report-and-revision.pdf (last accessed 15 July 2018).

57 Re: F (Children; contact, name, parental responsibility) [2014] EWFC 42; Re K (Children) [2016] EWCA Civ 99; Re K (Children) (Contact: Interim Care Order) [2014] EWCA Civ 1195; Re A (A Child) [2014] EWHC 4836 (Fam); Re S (A Child) 2014 WL 7255719; P v D, X, Y, Z [2014] EWHC 2355 (Fam). In the last case the judge remarked, incorrectly, that the amendment had come into force [86].

58 Re R (A Child) 2015 WL 5437235; Re X 2015 WL 6510810; F v M 2014 WL 12546 262.

59 Q v Q [2016] EWFC 5 at para 39.

60 Re T (A Child) (Suspension of Contact) (Section 91(14) CA 1989) [2015] EWCA Civ 719; Re M (A Child) [2014] EWCA Civ 1775; Re H-B (Contact) [2015] EWCA Civ 389; Re R (A Child) [2014] EWCA Civ 1664; Re Q (A Child) [2015] EWCA Civ 991; Re A (A Child) [2015] EWCA Civ 910; In the Matter of V (A Child) [2015] EWCA Civ 274; A-M (Children) [2014] EWCA Civ 1489; Re M (Children) [2015] EWCA Civ 280. In the final case, the court referred to the order under an appeal as a child arrangements order, but the order was made in May 2014.

61 Re S-B (Children) [2015] EWCA Civ 705; L and B (Children: Specific Issue; Temporary Leave to Remove from the Jurisdiction: Circumcision) [2016] EWHC 849 (Fam).

62 Re K (Children) [2016] EWCA Civ 99; Re B (a 14 year old boy) [2017] EWFC B28 (Fam).

63 Re S (A Child) [2015] EWCA 689.

64 Re C-W (A Child) [2015] EWCA Civ 1272.

65 MS v MN [2017] EWHC 324 (Fam) at para 14.

66 Re D (Children) [2015] EWFC 85; M (Children) no 3 [2016] EWHC 1998 (Fam); Re K (Children) 2016 WL 5202322; JK v HS, KS, X By Her Children's Guardian 2015 WL 6966239; Q v R and S and T (through their guardian JO) 2017 WL 02844309; NA v ZA, A, K, Q, H (By Their Children's Guardian) v The London Borough of Croydon [2015] EWHC 2188 (Fam); Re P (A Child) [2015] EWHC B9 (Fam); NH v JH, SH, AH, HH [2015] EWFC 43; E v M, Y (A Child by her Guardian) [2015] EWCA Civ 1313; Re F (Children) [2015] EWCA Civ 1315; B v C [2016] EHWC 1586 (Fam); Re P (A Child) [2015] EWCA Civ 1428; Re H-W (A Child) [2017] EWCA Civ 154.

67 DH v CL, A Local Authority ML, ET LL (by his Children's Guardian) [2014] EWHC 1836 (Fam); In the Matter of P (Children) [2014] EWCA Civ 852; Re C (Children) [2014] EWCA Civ 705; M v B [2014] EWHC 2686 (Fam); In the Matter of: Y (Children) [2014] EWCA Civ 1287.

68 NJ v OV [2014] EWHC 4130 (Fam); S v G [2015] EWFC 4; Re G (A Child) 2015 WL 5437261; Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882; Re B (Child) (Relocation: Sweden) [2015] EWCA Civ 286.

69 Re R (A Child – Relocation) [2015] EWHC 456 (Fam).

70 Re C (Children) [2014] EWCA Civ 705; NJ v OV [2014] EWHC 4130 (Fam); Re B (Child) (Relocation: Sweden) [2015] EWCA Civ 286; Re N-A (Children) [2017] EWCA Civ 230; Re M (Children) [2016] EWCA Civ 1059.

71 DH v CL, A Local Authority ML, ET LL (by his Children's Guardian) [2014] EWHC 1836 (Fam); In the Matter of P (Children) [2014] EWCA Civ 852; In the Matter of Y (Children) [2014] EWCA Civ 1287; S v G [2015] EWFC 4; Re G (A Child) 2015 WL 5437261; Re R (A Child – Relocation) [2015] EWHC 456 (Fam); F v M [2015] WL 10382711; M v F [2016] EWHC 3194 (Fam); Re E (Female Genital Mutilation and Permission to Remove) [2016] EWHC 1052 (Fam); SK v TKB [2015] EWFC 86; Mother M v Father F [2015] WL 8131824; RC (mother) v AB (father) [2015] EWHC 1693 (Fam); J (Mother) v P (Father) [2015] EWFC 29; K (A Child) [2016] EWCA Civ 931; SNM v TNM WL 00219580; OY v AY [2015] EWHC 3434 (Fam).

72 DH v CL, A Local Authority ML, ET LL (by his Children's Guardian) [2014] EWHC 1836 (Fam); In the Matter of P (Children) [2014] EWCA Civ 852; In the Matter of Y (Children) [2014] EWCA Civ 1287; S v G [2015] EWFC 4; Re: G (A Child) 2015 WL 5437261. Another case may fall into this category: Re R (A Child – Relocation) [2015] EWHC 456 (Fam).

73 Re K (Children) (Contact: Interim Care Order) [2014] EWCA Civ 1195 at [6].

74 Re A (A Child) [2014] EWHC 4836 (Fam) at [108].

75 Re A (A Child), above n 60.

76 FY v MY, KL and M (Children)(by their guardian) [2016] EWFC 16.

77 J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4 [38].

78 This decision was subsequently reversed on appeal to the Court of Appeal: In the matter of M (Children) [2017] EWCA Civ 2164. The appeal court's judgment made no reference to the presumption and focused on the standard by which the child's welfare should be judged: ‘reasonable men and women in 2017’ (para 44). The court below, it said, had failed to show why indirect contact was appropriate rather than direct contact and trial judge was criticised for failing to try to implement direct contact. Reference was also made to the Equality Act 2010 and to the European Convention on Human Rights. No reference was made to the presumption.

79 In the Matter of H (Children) [2015] EWCA Civ 1216 at [20]; Re K (Children) WL 5202322 at [6]; H, B v S,M (A Child) (by her Children's Guardian) [2015] EWFC 36 at [6]; Re B (A Child by her Guardian) [2017] EWHC 488 (Fam) at [40]; Re A (Private law proceedings – Litigant in person and protracted litigation) [2015] WL 7259045 at [6].

80 Re A (A Child), above n 74, at [108].

81 Re P (Children) [2015] EWCA Civ 466 at [30].

82 F v M, A, B (Children by their guardian) [2016] EWFC 40.

83 In the Matter of M (A Child) [2014] EWCA Civ 1755.

84 F v L [2017] EWHC 1377 (Fam).

85 Re F (A Child) (International Relocation Cases), above n 68.

86 Ibid,, at [28].

87 Re R (Child) [2016] EWCA Civ 1016.

88 Ibid, at [19].

89 Ibid, at [31]–[32].

90 See Re C (Internal Relocation) [2015] EWCA Civ 1305 at [25]; Re AB (A Child) [2016] EWHC 3115 (Fam) at [94]; H (Mother) v C (Father), E (A child through his solicitor Anne-Marie Hutchinson) [2015] EWCA Civ 1298 at [48].

91 J Djanogly, Hansard HC Deb, Vol 545, Col 165WH 24 May 2012, http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm120524/halltext/120524h0001.htm (last accessed 16 July 2018).

92 Cafcass ‘Private Law Demand’ https://www.cafcass.gov.uk/leaflets-resources/organisational-material/care-and-private-law-demand-statistics/private-law-demand-statistics.aspx (last accessed 9 November 2017).

93 Cafcass ‘Private Law Case Demand – Latest figures for September 2017’, ibid.

94 Ibid.

95 See further Mant, J and Wallbank, J ‘The post-LASPO landscape: challenges for family law’ (2017) 39(2) Journal of Social Welfare and Family Law 149CrossRefGoogle Scholar.

96 Cafcass, above n 93.

97 See further on such groups Kaganas, F ‘Domestic violence, men's groups and the equivalence argument’ in Diduck, A and O'Donovan, K (eds) Feminist Perspectives on Family Law (Glasshouse: Cavendish, 2006)Google Scholar.

98 http://www.fathers-4-justice.org (last accessed 16 July 2018).

99 http://www.fathers-4-justice.org/our-campaign/our-10-point-blueprint-for-family-law/ (last accessed 16 July 2018). See also the Manifesto for Men and Boys at http://www.fathers-4-justice.org/wp-content/uploads/2015/06/F4J-MANIFESTO-FOR-MEN-BOYS-2015.pdf (last accessed 16 July 2018).

100 http://www.fathers-4-justice.org/about-f4j/fact-sheet/ (last accessed 16 July 2018).

101 M O'Connor ‘It's time we recognised that a father's love is just as important as a mother's’ http://www.fathers-4-justice.org/2016/03/the-telegraph-its-time-we-recognised-that-a-fathers-love-is-just-as-important-as-a-mothers/ (last accessed 16 July 2018).

102 http://www.fathers-4-justice.org/2017/03/nazis-ruled-britain-invented-anything-unspeakable-secret-family-courts/ (last accessed 16 July 2018).

103 ‘Fathers4Justice issues warning to dads over new dv measures’ http://www.fathers-4-justice.org/2017/10/fathers4justice-issues-warning-dads-new-dv-measures/ (last accessed 16 July 2018).

104 It seems to have been active in persuading Cafcass to act against ‘alienation’. See FNF, above n 27.

105 ‘Families Need Fathers. What We Believe’, https://fnf.org.uk/component/phocadownload/file/120-briefing-doc-final (last accessed 16 July 2018).

106 ‘FNF McKenzie Briefing’ (2014) https://fnf.org.uk/phocadownload/law-and-information/the-law/children-and-families-act-2014/briefing%20number%201.pdf (last accessed 16 July 2018).

107 ‘Sir James Munby Speaks Out Again’ (2017) https://fnf.org.uk/news-events-2/press-releases/150-press-releases-2017-archive/430-press-release-pfd-aug-2017 (last accessed 16 July 2018). See also ‘Families Need Fathers Charter’ 2015, accessed from a link at https://fnf.org.uk/component/phocadownload/file/195-families-need-fathers-charter-2015 (last accessed 16 July 2018).

108 ‘More Fathers Protest by Climbing Buckingham Palace’ (2015) https://fnf.org.uk/news-events-2/press-releases/98-press-releases-2015-archive?start=1 (last accessed 16 July 2018).

109 ‘Statement on “How do County Courts share the care of children between parents?” report – bias in the family courts’ https://fnf.org.uk/news-events-2/press-releases/98-press-releases-2015-archive/360-statement-on-how-do-county-courts-share-the-care-of-children-between-parents-report-bias-in-the-family-courts (last accessed 16 July 2018).

110 ‘Cafcass Betrays the Trust of Father's’ (2017) https://fnf.org.uk/news-events-2/press-releases/150-press-releases-2017-archive/428-press-release-cafcass-betrays-trust-of-fathers (last accessed 16 July 2018).

111 On the symbolic functions of the law, see eg Gusfield, R Symbolic Crusade: Status Politics and the American Temperance Movement (University of Illinois Press, 1986)Google Scholar; Gusfield, JR ‘On legislating morals: the symbolic process of designating deviance’ (1968) California Law Review 54CrossRefGoogle Scholar.

112 Kaganas and Piper, above n 48, p 377.

113 Ibid, p 378.

114 Kaspiew et al, above n 34, Summary at p 12.

115 https://www.sortingoutseparation.org.uk/children-parenting/parenting-arrangements-children/ (last accessed 16 July 2018).

116 Barnett, above n 33 at p 459.

117 Families Need Fathers (2014) ‘McKenzie Briefing 2014 No 1’ https://fnf.org.uk/phocadownload/law-and-information/the-law/children-and-families-act-2014/briefing%20number%201.pdf (last accessed 16 July 2018).

118 [2017] EWHC 1377 (Fam).

119 See n 9 above.