GOODBYE TO SECTION 1(2A) OF THE CHILDREN ACT… YOU WILL NOT BE MISSED
On 22 October 2025, the Ministry of Justice announced that ‘when Parliamentary time allows’, the presumption of parental involvement, inserted into the Children Act 1989 as s1(2A) by s11 of the Children and Families Act 2014, will be repealed. It was an unloved and largely ignored piece of legislation — a gesture, or signpost, that, in reality, changed nothing. The government’s press release says that this action will ‘protect children from abusive parents’. In just the same way that the 2014 legislation did not change the fate of a single child, I will confidently wager that the gesture of its repeal, for it is little more, will not protect a single child from harm. The government has enough lawyers to know that. Its claims are disingenuous and raise false hopes for people who are currently being abused and intimidated.
Section 1(2A) of the Children Act says that when the court is considering making, discharging or varying a section 8 order, making, varying or discharging a special guardianship order, the court is to presume, ‘unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare’. Involvement, in section 1(2B), is defined as ‘involvement of some kind, either direct or indirect, but not any particular division of the child’s time’. Section 1(6) then informs us that, in essence, the presumption does not apply if there is some evidence to suggest that the involvement of that parent in the child’s life would put the child at risk of suffering significant harm, whatever the form of involvement.
Paragraph 105 of the Explanatory Notes for the 2014 Act says:
‘The purpose of this amendment to section 1 of the Children Act 1989 is to reinforce the importance of children having an ongoing relationship with both parents after family separation, where that is safe and in the child's best interests. The new subsection (2B) of section 1 is explicit that it is not the purpose of this amendment to promote the equal division of a child’s time between separated parents. The effect is to require the court, in making decisions on contested section 8 orders, the contested variation or discharge of such orders or the award or removal of parental responsibility, to presume that a child’s welfare will be furthered by the involvement of each of the child’s parents in his or her life, unless it can be shown that such involvement would not in fact further the child’s welfare. Involvement means any kind of direct or indirect involvement but not any particular division of the child’s time’.
Most family lawyers in 2014 looked at this provision and thought, ‘How is that any different to the law I have already been applying, certainly since the Children Act 1989 was brought into force?’ Reading the Hansard debates from 2013 and 2014, as the Bill made its way through the Commons and the Lords, shows that a change in the substantive law was never the intention. Edward Timpson, the then Children’s Minister, explained to the House of Commons on 25 February 2013, that, so far as private law cases are concerned:
‘Just over 56,000 children were subject to new contact and residence cases in 2011-12. For many families involved, the process can be drawn out and emotionally draining. As someone who spent the best part of 10 years practising as a family law barrister, I can testify that this is rarely the best way to resolve family disputes. Taken together, the Bill’s private law provisions keep the needs of children firmly at the centre of the system, while explicitly acknowledging the important role that both parents should play in a child’s life post-separation’.
In that debate, Sir Alan Beith MP questioned the Minister, saying:
‘My Hon. Friend has made it clear on many occasions that the Bill is not intended or likely to lead to different court decisions. Why is he so optimistic that it will lead many parents to take a different view of the need to come to a sensible settlement and not get to court?’
Edward Timpson replied:
‘…that the intention of these changes to the law is to remove the adversarial, winner-takes-all nature of many of these proceedings and the perception among many parents that they are entering an arena that is about their personal battles, rather than what is in the best interests of the child. The changes will do that not in isolation, but as part of a wider package of measures including MIAMs and the enforcement of the orders.’
The legislation must be seen in context. The Legal Aid, Sentencing and Punishment of Offenders Act had just removed legal aid for most private law children's cases. The hope was that parents would resolve their issues through mediation and would be steered towards a sensible and child-focused solution without the need for lawyers and courts. Let us be charitable to Mr Timpson and say that his hopes, in this respect, do not appear to have been fulfilled.
Certainly, the courts seem to have been very quick to realise that this section did not change the law. I was going to search through reported cases to see if there were any instances where s1(2A) of the Children Act had been an important factor in the court’s decision. I wondered if there were any cases at all where a judge had based his decision on this section. Fortunately, the Ministry of Justice has saved me the task. In October 2025, the Ministry published the Final Report of its Review of the Presumption of Parental Involvement. It found that:
‘The evidence gathered for the Review suggested that the presumption and its exception were not routinely referenced by judges and magistrates when making decisions about contested child arrangements orders. When it was referenced, the presumption was highlighted as one of several factors the court must consider, and child welfare remained the central consideration’.
Studies investigating the experiences of professionals ‘consistently reported a perception from participants that the presumption was rarely mentioned and had little material impact on the outcomes of final hearings’. Professionals did, however, suggest that the presumption ‘acted as a helpful reminder to parents and the court of the importance of both parents’ involvement in a child’s life’.
Given that the statute books are littered with redundant or little-used pieces of legislation, why should this receive special attention? For the answer, we must go back to Assessing Risk of Harm to Children in Private Law Children Cases (‘the Harm Report’), published by the Ministry of Justice in June 2020. Although the panel was ‘not sufficiently persuaded’ by any of the options for amending s1(2A), it did recommend that the presumption of parental involvement should be ‘reviewed urgently’. Five years is not a use of the word ‘urgently’ I have previously encountered, but let that be. The panel said that it based its recommendation on its view that ‘the presumption further reinforces the pro-contact culture and detracts from the court’s focus on the child’s individual welfare and safety’.
The Harm Report found that, on one level, the presumption added little to the existing case law, which has a starting point of continuing involvement of both parents in their children’s lives after separation. The panel, however, found that ‘on another level it gave it a statutory foundation which limited the possibility for further, more nuanced development of case law, and reinforced the notion that any exceptions to the norm of contact should be read narrowly’. Some witnesses, particularly mothers, felt that the presumption caused the voice of the individual child to be lost. The panel concluded:
‘Overall, the evidence received by the panel suggests that the presumption is implemented inconsistently and is rarely disapplied. To the extent that the courts’ pro-contact culture operates as a barrier to addressing domestic abuse, it serves to reinforce that culture’.
Given that s1(2A) was never intended to change the substantive law on child arrangements orders, its repeal, whenever this occurs, will not fundamentally change the way in which family courts approach matters. I doubt if anyone would wish to see a system in which the default should be that the non-resident parent would have no involvement with their child unless they can prove that they are safe to do this. The mirror image of the criticised pro-contact culture.
Section 1(2A) of the Children Act is a child of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, as a result of which the majority of parents who were unable to agree arrangements for their children were largely left to their own devices. It is perhaps unsurprising that some parents have used the opportunity to make the Family Court into a tool for continuing abuse.
It is important to understand that courts, including the Family Court, can only act to protect children from abuse if they have sufficient evidence to make factual findings which establish the basis for the risk. Getting that evidence and presenting it to the court in a cogent and convincing manner requires time, hard work, legal knowledge and experience. The 2012 reforms to family legal aid did away with that knowledge and experience, previously available to assist the court in making a very difficult series of decisions. Fully reinstating the availability of legal aid removed by the 2012 Act would do far more to protect children from harm than this legislative gesture of repealing the presumption of parental involvement. Although I shall not endear myself to the Chancellor of the Exchequer, I would go further and urge that it is particularly important that the alleged abuser should also be represented. That representation would not only provide a buffer between real abusers (of which there are many) and their victims, but it would also provide a sense of fairness and even-handedness towards the others who may be unfairly, and occasionally maliciously, accused. With the grown-ups taken care of, Cafcass officers would then be free to concentrate on the most important issue: the welfare of the children in the case and making sure that the voice of the child is not drowned out by louder adult voices.