The Government Announces Planned Changes to Parental Rights

The government has announced its intention to change the parental rights law and the presumptions contained in the Children Act 1989.

Our family lawyers look at what the changes will mean for separated and divorced couples negotiating parenting arrangements and applying to court for children orders under the Children Act.

Contact Evolve Family Law Today for Family Law Advice.

Parental rights and the Children Act 1989

The Children Act defines the concept of parental responsibility and says:

Who automatically has parental responsibility for a child when the child is born.
Who can acquire parental responsibility by agreement or court application.
Who gets parental responsibility if a child arrangement order is made in favour of a non-parent.
How parental responsibility can be lost.
What authority is given to those with parental responsibility.

The government does not intend to change the law on parental responsibility, but instead shift the presumption of parental involvement.

Presumption of parental involvement enshrined in the Children Act 1989

The Children Act states that when the family court is considering making, varying or discharging some types of children law court orders, the judge is to presume that, unless the contrary is shown, the involvement of a parent in the child’s life is in the child’s best interests and will further their welfare.

The type of court orders to which this presumption applies includes:

Child arrangement order applications.
Specific issue order applications.
Prohibited steps order applications.

Change to the presumption of parental input

The government intends to repeal the presumption of parental involvement when parliamentary time allows.

When the presumption is no longer enshrined in the Children Act 1989, the judge determining some types of children law applications will not start from the premise or assumption that the involvement of a parent in the child’s life will further the child’s welfare. Instead, a judge will need to:

Review and assess the evidence.
Consider the child’s welfare and the child’s best interests rather than assuming parental involvement is in the child’s best interests.

Why is the government intending to change the Children Act 1989?

The government plans to repeal the presumption of parental involvement after calls from children’s organisations and domestic violence agencies.

When announcing the proposed change, the government stated that retaining a presumption of parental involvement could lead to prioritising contact over child protection and safeguarding. The government press release can be found here.

Domestic abuse charities have long argued that repealing the presumption in favour of contact and parental involvement will not only protect the children but also the parent who has been subjected to domestic abuse. When the presumption is repealed, the change in approach will focus the court on the child’s welfare rather than parental rights.

Parental rights or child welfare

The planned appeal of the presumption in favour of parental involvement is a nuanced amendment. That’s because, under the Children Act, a judge must decide a child law application based on their assessment of the child’s best interests, after considering the welfare checklist in the 1989 Act.

The welfare checklist includes:

The ascertainable wishes and feelings of the child or children (considered in the light of the child’s age and understanding).
The child’s physical, emotional and educational needs.
The likely effect on the child of any change in their circumstances.
The child’s age, sex, background and any characteristics which the court considers relevant. A relevant characteristic, for example, is whether a child is neurodiverse.
Any harm which the child has suffered or is at risk of suffering. This includes all types of domestic abuse, including emotional abuse or witnessing parental domestic violence.
How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs. A child’s needs are not limited to physical needs, such as housing, but include emotional and educational needs.
The range of powers available to the court under the Act.

The government has said it does not intend to change the welfare criteria, and many experts will remain of the view that, in most family situations, it is in a child’s best interests to maintain a relationship with both parents after a separation or divorce. However, there will be a shift in emphasis from parents’ rights to the child’s needs.

What will the change in law mean for parents?

When the law changes, parents will need to understand the nuances. When asking the court for contact under a child arrangement order or asking the court to refuse contact or to limit contact to a supervised setting, parents and their family law solicitors will need to focus their arguments less on parental rights and more on why the order they are seeking is the best order for the child.

Many Children Act child arrangement order decisions will remain challenging or finely balanced, such as:

Where there are disputed allegations of domestic violence.
Where there is clear evidence of abuse, but an older child wants contact, despite the potential risks.
If there is a fear that a parent is pursuing contact to maintain ongoing contact with the abused parent and to exercise control.

Getting help with agreeing on parenting arrangements after a separation or divorce

At Evolve Family Law, our specialist Northwest family solicitors can help you resolve child care arrangements after a separation or divorce through:

Legal advice so you know your rights as a parent and potential court outcomes if you apply or respond to an application for a child arrangement order, specific issue order or prohibited steps order.
Solicitor negotiations to help you reach an agreement over contact and residence arrangements.
Parenting plans through mediation.
Representation in applications for orders under the Children Act or injunction orders.

Contact Evolve Family Law Today for Family Law Advice.