Abstract
ABSTRACT 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.
Highlights
Law has always had an uneasy relationship with presumptions, not least because they go against the grain of the established knowledge that each child is different, and that each case needs to be determined on its own merits
Presumptions have particular limitations in contested family proceedings, in which the experiences and needs of the children involved are likely to be more complex than those of children within the population more broadly (Herring and Powell 2013). In part this accounted for the resistance to the introduction of the statutory presumption of parental involvement into the Children Act 1989 through the Children and Families Act 2014
Drawing on the findings from 41 interviews conducted with judges, barristers, solicitors, Cafcass practitioners and representatives from domestic abuse organisations, this paper provides empirical insight into two key questions: first, whether the statutory presumption is changing the practice of the lower courts; and second, whether the statutory presump tion should be reversed to become a presumption against contact in domestic abuse cases
Summary
Law has always had an uneasy relationship with presumptions, not least because they go against the grain of the established knowledge that each child is different, and that each case needs to be determined on its own merits. Presumptions have particular limitations in contested family proceedings, in which the experiences and needs of the children involved are likely to be more complex than those of children within the population more broadly (Herring and Powell 2013). This paper responds to this gap by presenting the findings from the first empirical study (‘the study’) to explore the impact of the statutory presumption on the practice of the lower courts. Drawing on the findings from 41 interviews conducted with judges, barristers, solicitors, Cafcass practitioners and representatives from domestic abuse organisations, this paper provides empirical insight into two key questions: first, whether the statutory presumption is changing the practice of the lower courts; and second, whether the statutory presump tion should be reversed to become a presumption against contact in domestic abuse cases. Whilst a presumption against contact might not be the most appropriate means to change this dominant narrative, there is, a pressing need to re-evaluate the approach taken by the courts to the resolution of contact disputes involving domestic abuse and the statutory presumption, in its current form, represents a barrier to progress moving forward
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