Child protection at heart of courts review

A review launching today (9 November 2020) will consider how the current approach to decisions on parental access made in the family courts is impacting child safety, in the next step forward for government’s wider plans to reform family courts and bring in greater protections for domestic abuse victims.

This follows a package of reforms earlier in the year to overhaul how family courts deal with domestic abuse cases – providing extra protections in courtrooms for victims, stronger powers to block abusers repeatedly dragging victims back to court and a new investigative court process to reduce conflict.

The review builds on this action and will assess whether the right balance is being struck in private law cases between the risk of harm to a child and their right to have a relationship with both parents.

Currently, the presumption of ‘parental involvement’ which the courts are required to follow in their judgements encourages a child’s relationship with both parents, unless the involvement would put the child at risk of harm.

A recent review into harm in the family courts system found this presumption ‘detracted from the focus on a child’s welfare and safety – causing harm to children in some cases’. It recommended further analysis of how the courts were applying this presumption of parental involvement so that the impact could be properly assessed before determining whether a change in legislation or other reforms are needed

The review will be guided by an Advisory Group, made up of diverse representatives who will be able to draw upon their expertise of working across the family justice system with victims, children and charities.

Justice Minister Alex Chalk said:

We are determined to strike the right balance between making sure children are safe while ensuring they have the best possible family life.

This is a complex area and any action we take following this review must be rooted in solid evidence. That is why it’s so important we take the time to look at this thoroughly.

The review is expected to report back next year and forms part of the government’s long-term plan, announced in June, to better protect victims in the family courts. This included commitments to:

• Trial a more investigative approach in private family law proceedings as part of an upcoming pilot of Integrated Domestic Abuse Courts. This could see judges decide what evidence to investigate, rather than both parties presenting their cases against each other.
• Give automatic eligibility for special measures in the courtroom for victims of domestic abuse going through the family courts – such as separate waiting rooms, entrances and screens – via a further amendment to the Domestic Abuse Bill.
• Clarify the law on ‘barring orders’, to ensure that these can be used to prevent abusers repeatedly dragging ex-partners back to court over child arrangements. Ministers are currently reviewing whether this is best done through legislative or non-legislative means.
• Invite the Domestic Abuse Commissioner and Victims’ Commissioner to monitor and report on private family law proceedings involving victims of domestic abuse.

Notes to editors

• The Advisory Group to the review includes representatives from across the family justice system. The members are:
  • Rachel Thomas, Welsh Children’s Commissioner’s Office
  • Nicole Jacobs, the Domestic Abuse Commissioner
  • Peter Jackson LJ
  • HHJ Michelle Corbett
  • Jacky Tiotto, CEO Cafcass
  • Matthew Pinnell, Cafcass Cymru
  • Tammy Knox, Resolution
  • Michael Lewkowicz, Families Need Fathers
• The Review will focus both on the courts’ application of the presumption, as well as on the impact on children’s welfare of the courts’ application of these provisions. In particular, the Review will examine:
  • how courts are applying sections 1(2A), (2B) and (6) of the Children Act 1989, which together require courts to presume, in child arrangements and certain other private law children proceedings, that involvement of a parent in the child’s life will further the child’s welfare, unless there is evidence to suggest that involvement of that parent would put the child at risk of suffering harm, and to define involvement as ‘involvement of some kind, either direct or indirect, but not any particular division of a child’s time’; and the impacts on children’s welfare of the courts’ application of these provisions

• The evidence that this Review will gather will include a case file review, input from those working in the family courts and an academic literature review of how the presumption is currently applied and the impact of parental involvement on the wellbeing of the child.

• The Ministry of Justice will follow a competitive tender process to identify the most appropriate individuals to conduct the evidence review to ensure a sound and independent evidence base.