Contents (click to jump to that section)
The Issue / Background / The Announcement / The Motivation for the Report
Refutation of the Key Claim / Detailed Comments on the Report
Courts’ Ability to Understand the Risk to Children / The Benefits of Involvement
Critique of the study Children’s Well-Being in Sole and Joint Physical Custody Families
The Issue
On 22 October 2025 the Parliamentary Under-Secretary of State for Justice, Baroness Levitt KC, announced that the Government will repeal the presumption of parental involvement when Parliamentary time allows.
I suppose under a Labour Government this was inevitable. But the process was started under the Conservatives and would likely have happened anyway. No politicians oppose the feminist bandwagon.
Background
This repeal refers to the clause in the Children and Families Act 2014, which affected an amendment to the Children Act 1989,
(2A) A court…is, as respects each parent,….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.
This issue has a long and egregious history. I tell the story here. But the denouement was as follows.
In 2014, when the Children and Families Bill was undergoing due process, there was hope – even expectation – that fathers would finally enjoy a (rebuttable) presumption of shared care. Even Caroline Noakes, the chair of the Public Bill Committee, thought so. But Baroness Butlet-Sloss was on hand to dash that hope. From her position in the House of Lords, and from her unchallengeable status as a previous Head of the Family Division, she introduced an amendment which neutralised the intended impact of clause (2A), above. It was this,
(2B) In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.”
Caroline Noakes, hardly a men’s rights activist, noted,
“This amendment was another example of the ‘chipping away’ of what was intended to be at the heart of this clause – an automatic right for the child to be parented by both parents. Unless you clearly establish a legal presumption in favour of absent parents spending a reasonable amount of time with their children, and more importantly, enshrine a right for a child to have a meaningful ongoing relationship with both parents, there will be no change in custody outcomes, and we will have missed the best opportunity in a generation to create a culture of shared parenting.”
Butler-Sloss regretted only that she had not been able to removed clause (2A) completely. The sisterhood agreed and have been gunning for its removal ever since.
Anyone who thinks that this issue is primarily about safeguarding children has not been paying attention. Go to the bottom of the class.
Make no mistake, the ultimate aim is to empower mothers to be able to remove fathers from the lives of their children with ease and without hinderance. Ideally this would be accomplished in a manner that mirrors the divorce law that we now have: unilateral and incontestable removal of the father.
The Announcement
The announcement was accompanied by the publication of a Ministry of Justice report, Review of the Presumption of Parental Involvement Final Report. This was commissioned following one of the recommendations of 2020’s so-called “Harms Report” (actually three separate reports). The official Ministerial Statement noted that this presumption,
“..has faced criticism for appearing to reinforce a ‘pro-contact’ culture that prioritises the involvement of both parents in a child’s life over the child’s individual welfare.”
Indeed, it has faced criticism – from lobbies who wish to progress their true objective, namely for mothers to be able to remove fathers from their children’s lives without any hassle.
And note how the above quote cunningly suggests that a ‘pro-contact’ culture automatically demotes the issue of child welfare to second place. This is the art of impression forming.
But the courts’ unambiguous obligation is the paramountcy principle: that the interests of the child must be paramount. In truth, a ‘pro-contact’ culture merely means respecting clause [2A], not placing this above the child’s welfare.
The presumption, as it currently stands, is rebuttable. That is, clause (2A) contains the proviso “unless the contrary is shown”. For decades the standard tactic of a parent, usually the mother, attempting to prevent the father gaining contact, was to purport to “show the contrary” by alleging domestic abuse, of herself or of the child. If true, this would be right and proper. But therein lies the problem. And it is why the domestic abuse lobby insists that DA is gendered and “overwhelmingly” involves female victimisation at the hands of men.
The verbal obfuscation continues by using the phrase ‘pro-contact’ culture as intrinsically permitting child abuse, rather than being merely a different form of words to represent the court’s current obligation under primary legislation, namely to presume that involvement of a parent in the life of a child is beneficial “unless the contrary is shown”. The problem, for those who which to remove the clause, is that “unless the contrary is shown” places the burden of proof on the party who opposes contact, generally the mother.
The Minister’s Statement claims, “The repeal of the presumption will form part of a package of family court reforms designed to better protect children in private law cases in the family courts”. But this is likely to be the opposite of the case, and has certainly not been proved by the accompanying report.
The Statement “hopes” that “this wider package of reforms – of which the repeal of the presumption will play a key part – will contribute to improved children’s education and employment outcomes as well as reducing costs to the health and justice systems”. Again, this is likely to be the opposite of the case, and has certainly not been proved by the accompanying report. Indeed, that report itself includes much contrary evidence.
The Motivation for the Report
Recall that the commissioning of the report, and hence the impetus behind the move to repeal the presumption of involvement, originated from the so-called “Harms Report”: the 2020 Ministry of Justice report Assessing Risk of Harm to Children and Parents in Private Law Cases. The Minister’s Statement claims that this report “includes substantial evidence demonstrating the existence of a ‘pro-contact’ culture in the family court” (by which is meant a pro-contact culture which is claimed to ignore the paramountcy principle). Life is too short to revisit how dreadful was this Harms Report. It was extraordinarily biased. This was in no way surprising given the authors. So bad was it that Terry White made a valiant attempt at getting a judicial review of it.
I’ll not attempt a summary of the issues Terry raised in his JR application due to their length, but you can see for yourself in the following document trail: the Statement of Facts, the Grounds for Judicial Review, the MOJ’s “Grounds for Resistance”, i.e., the basis of their rejection, Terry’s Response to the Grounds for Resistance and his Addendum to that Response, the Bundle relating to the application for appeal, its Skeleton Argument and the key document therefrom, Terry’s summary of the exchanges relating to whether parents have an automatic right to contact with their own children.
Terry summarises the reasons for rejection of his application for a judicial review as follows,
“My submission was rejected at the High Court on the basis of amenability – because the Report has no legal effect.”
This is, of course, utterly preposterous. The Harms Report is directly and explicitly linked in the Ministerial Statement, and its supporting report, to the decision to repeal the presumption of involvement, i.e., an amendment to primary legislation referring directly to the content of the law. Moreover, this change will impact tens of thousands of court cases per year in England and Wales.
The rejection of Terry’s JR application was always inevitable. Do not be so foolish as to go to the judiciary for justice. We have left that a long way behind.
Refutation of the Key Claim
The attempt to oust even more fathers is claimed to be based on the desire “to better protect children in private law cases”. The falsity of the claim can be established immediately thus,
- The report considers only the potential harm due to the parent seeking contact, not the potential harm arising from the parent resisting it. In around 90% of cases the former is the father and the latter the mother;
- But domestic abuse is not a gendered phenomenon. Indeed, there is increasing evidence that women may be the majority of perpetrators of domestic abuse in some cases, especially where the abuse is unilateral (e.g., see PASK (2013), Lysova et al (2025a), Lysova et al (2025b));
- Women (or mothers) are more often perpetrators of child abuse resulting in death, or explicit child homicide, than are men (or fathers) (see this extract from The Empathy Gap).
To the latter observation people will remark that it arises because women do more childcare than men, so the statistics are skewed. Whilst true this does not alter the bald fact, and it is a fact that is directly relevant to the claim being made. This observation alone completely demolishes the report as it reveals that ignoring the potential harm to a child arising from the resident parent is in conflict with the paramountcy principle – and all the more so if contact with the other parent is denied as this could have been a protective factor. Indeed, this has been observed in practice (See the reports from Cafcass, 2017, and from the Department for Education, 2016).
Detailed Comments on the Report
To avoid ambiguity I shall where necessary refer to the report in question as the “repeal report”. It notes that,
“The Review encountered several challenges regarding availability, access and quality of data on the family justice system. These included the variable quality of data, difficulty accessing administrative data, difficulty accessing electronic court files, variable levels of detail in written judgments, and a lack of published judgments.”
That sounds right. More to the point, though, the courts have not the faintest idea what happens to children after the parents have the goodness to go away and stop bothering them. So, despite the potential evidence base of a million or more cases, the courts have no basis for claiming, based on their actual performance, that their past decisions were good, bad or indifferent.
The repeal report includes evidence based on qualitative research. Qualitative research is something of which I am always suspicious. In this case, it was also too small to be meaningful, involving “19 parents from Black, Asian and minority ethnic backgrounds (10 mothers and 9 fathers)” and “10 mothers who had been involved in cases where sexual abuse had been alleged or proven”. They add, “Despite best efforts, it was only possible to engage one Welsh parent in this research…”.
Two of the academic studies cited multiple times were familiar to me, namely Hunt & MacLeod (2008) and Harding & Newnham (2015). Both of these were reviewed in detail in my book The Empathy Gap. The relevant sections can be found here (section11.2) and here (section 11.4). Harding & Newnham (2015) I found to be more propaganda than valid research. It was published to great fanfare in the press which ran headlines such as “Anti-father court bias is a myth”, and, “Men are treated fairly when trying to get access to their children in courts, study says”. I rather ripped Harding & Newnham to bits. They selected the cases they included in the study, and there was manifold evidence that the results were grossly unrepresentative of the normal run of cases. They even admitted themselves that their cases were “not statistically representative of the general practice in 2011”. Consequently, Harding & Newnham’s highly publicised claim that, “we established there was a similar success rate for mothers and fathers applying for orders to have their children live with them” must be ruled as lacking valid substantiation. But even if it were true, it would still be consistent with the non-resident parent being treated badly, irrespective of sex. And about 90% of those are fathers, so it comes down to much the same thing.
Hunt & MacLeod (2008) is a more credible report, but its findings are hardly fairly represented by the repeal report. One of the things that emerges from it is that the resident parent enters the court holding all the cards and this advantageous position is maintained throughout. The order that the court ultimately makes reflects this power imbalance. And mothers are the resident parent about 90% of the time. It is therefore very important to note that Hunt & MacLeod found “Where information was available (in 286 cases), 38% of resident parents (109 of 286) were known to have been opposed to any face to face contact, with a further 15% (44) wanting supervised contact only, i.e., a total of 53% of resident parents were opposed to anything beyond supervised contact. An additional 11% of resident parents were resistant to ‘staying contact’, i.e., overnight stays with the non-resident parent.” (For quotes from my own book I do not use italics).
“The outcomes in terms of court orders (as opposed to what may actually have transpired) were given by Hunt and MacLeod as follows. Where outcomes were known (286 cases), 49% resulted in “staying” orders, i.e., staying overnight at the non-resident parent’s home; 20% resulted in orders for unsupervised visiting; and, 31% resulted in orders for supervised or conditional contact, indirect contact, or no contact at all. Indirect contact refers to contact by ‘phone, letter, email, etc., but not face-to-face. No contact at all was ordered in 14% of cases.”
What the above figures elide is the quantum of time for which contact was ordered. Of the 49% of cases where “staying” orders were issued,
“The number of overnight stays per instance was one (45% of cases) or two (43% of cases) or three (11% of cases). In these cases where staying contact was ordered, non-staying visits may also have been ordered, though in 79% of cases this was only one or two days per fortnight. In terms of total hours contact, staying plus non-staying, this amounts to between 25 hours and 72 hours (i.e., between 7% and 21% of the time) in 76% of cases. Recall that this is the time awarded by the courts, not necessarily what transpires… Where the court order was for unsupervised visits, the number of hours contact per fortnight was far smaller than when staying contact was ordered, on average just 10.3 hours per fortnight.”
What has become the standard outcome for the “lucky” fathers who are “successful” is every other weekend, and possibly one day in between. Anything less than “staying” visits is unlikely to be able to sustain a meaningful involvement in a child’s life. And this applies in about half of cases.
The principal failing of the family courts is an almost total lack of enforcement of their own orders. The repeal report notes,
“Concern is sometimes raised that, whilst the court may order involvement between a child and their parent, it might not happen. The evidence base covering post-court outcomes for children was found to be limited. Whilst the evidence was clear that arrangements can and do break down, the Review found no evidence to suggest that child arrangements orders were routinely disregarded by the resident parent. Rather orders appeared to be followed initially until some issue or crisis forced the order to break down or the case to return to court.”
Most non-resident parents (of either sex) will be open mouthed with amazement at that claim.
The claim is obviously groundless because the courts will not know that their orders are being flouted unless the parents return to court. As for the evidence base regarding the actual outcomes, the working group could easily have provided some. FNF BPM were on the panel and could have fielded any number of fathers who would provide evidence. They simply did not want to do that.
Nor does returning to court, perhaps to request an enforcement order, do the non-resident parent any good. By 2017 the percentage of enforcement applications that resulted in an enforcement order had fallen to virtually zero (0.2%). So, what does happen when a non-resident parent complains to the court that their own order is being disrespected?
“The answer is quite shocking if Hunt & MacLeod is any guide. The best you can realistically hope for is that your original order is reinstated…But worse: in 14 of the 30 cases Hunt & MacLeod identified, even the original order was not reinstated. Instead a new order was issued for reduced contact. So, in about half of cases where a resident parent has refused to abide by the terms of a court order, and the non-resident parent has brought the matter formally to the attention of the court, the court responds by “rewarding” the resident parent with reduced contact by the non-resident parent.”
Hunt & MacLeod concluded, “The court is ultimately impotent in the face of implacable hostility on the part of either resident parents or children and non-compliance with court orders”. Now recall that 53% of resident parents (i.e., mothers) were opposed any contact beyond supervised contact. Those two facts are the crux of the matter.
And yet the repeal report says this,
“The findings presented above are based on small scale studies that are not statistically representative and represent a fraction of cases that come through the courts. In particular, the sample from the Review’s judgment analysis project was largely based on the decisions of a single bench of magistrates. Therefore, the studies discussed in this section cannot be used to determine the statistical proportions of cases that ended with different child arrangements.”
OK. But then they add,
“Nevertheless, the consistent narrative across a range of studies, over time and using different methods, can be used to conclude that the outcome of court cases was usually for children to spend time with both parents and that orders placing very strict restrictions on parental involvement permanently were relatively uncommon.”
“…research suggested that final orders that restricted parental involvement (such as orders for supervised/supported contact or indirect contact) or orders that resulted in a child having no contact with one of their parents were rare (Cafcass & Women’s Aid, 2017; Choudhry, 2019; Harding & Newnham, 2015; Hunt & MacLeod, 2008; Perry & Rainey, 2007).”
I have not reviewed Choudhry (2019) or Perry & Rainey (2007).
Harding & Newnham (2015) we can rule out for the reasons discussed above.
The other two reports, Cafcass & Women’s Aid (2017) and Hunt & MacLeod (2008), simply do not support their claim, i.e., that “final orders that restricted parental involvement (such as orders for supervised/supported contact or indirect contact) or orders that resulted in a child having no contact with one of their parents were rare”. As we saw, above, Hunt & MacLeod (2008), identified 31% of cases falling in this category, which is not rare.
The citation of Cafcass & Women’s Aid (2017) in support of their contention is surprising. The Executive Summary states: “Where the order at the final hearing was known, it was less common for unsupervised contact to be ordered in cases featuring allegations of abuse (39%) than cases without (48%)”. The meaning of those figures is, admittedly, unclear due to the large number of their cases where the outcome was unknown. But even if the unknown outcome cases are ignored, 43% of cases where abuse was alleged resulted in only restricted or no contact or no order at all.
Courts’ Ability to Understand the Risk to Children
Now we come to the section Courts’ ability to understand the risk to children which is the key issue. But this section is thin to the point of non-existence. It consists entirely of how difficult it is to deal with allegations of abuse for which there is no evidence. Given that this is the issue on which the decision over contact turns it is shockingly inadequate.
The Benefits of Involvement
Finally, the report attempts to minimise the positive effects on a child of the involvement of both parents even when there is no question of harm. But the report was obliged to admit that,
“In general, the evidence identified was clear that the involvement of both parents following separation has a positive impact on child welfare (literature review, section 5.1). Much of this evidence came from studies about the post-separation involvement of non-resident fathers, with lower levels of involvement from fathers (such as ‘sole care’ arrangements) generally associated with worse child welfare outcomes, and higher levels of involvement from fathers (such as ‘shared care arrangements’) generally associated with better child welfare outcomes (literature review, section 5.1, see also Steinbach & Augustijn, 2022; Steinbach, Augustijn & Corkadi, 2020). This suggested that court orders providing for children to spend substantial time with both of their parents furthered their welfare.”
But the report attempts to row back on this, noting that, “Studies found high-quality father-child relationships were associated with positive outcomes for child welfare across a range of measures. This suggested that the positive outcomes for child welfare seen in many studies on shared care arrangements may* have related more to the characteristics of families that chose and were able to successfully implement these arrangements, rather than the inherent welfare benefits of the arrangements.” (*my emphasis)
*“may” or “may not”? The sources from which this contention derives are Steinbach & Augustijn (2022) and Steinbach, Augustijn & Corkadi (2020). I have reviewed the first of these in some detail, which I now summarise…
Critique of the study Children’s Well-Being in Sole and Joint Physical Custody Families by Anja Steinbach and Lara Augustijn, Journal of Family Psychology, American Psychological Association 2022, Vol. 36, No. 2, 301–311. (N = 1,554) https://doi.org/10.1037/fam0000875
Note that this study is based on German data. This would have been worth stating in the repeal report, especially as its authors warn that “the data were not representative of families in Germany” and include a further warning that in respect of applicability to other countries “we cannot be sure whether our results can be generalized”.
The purpose of Steinbach & Augustijn was to distinguish between “Sole Physical Custody” (SPC) and “Joint Physical Custody” (JPC) as regards the children’s wellbeing (the latter being measured by four variables: mental health, physical health, social disintegration and school grades). From regression analyses of their dataset, Steinbach & Augustijn concluded,
“Children living in JPC families fared much better than children living in SPC families with regard to all outcomes we looked at.”
However, when 15 control variables were included in the regression, covering a range of child, parent and separation characteristics, whilst the residual association of better child outcomes was still detectable, across all four measures, they were no longer statistically significant. This is not especially surprising. Any beneficial effect of JPC does not come about by magic. Clearly there must be factors which are consequent upon JPC which cause the benefits to arise. Most of the control variables were found to have no significant effect on child outcomes but the main exceptions were the quality of the mother-child and father-child relationships. The authors concluded,
“In addition, mediation analyses showed that the positive associations between JPC and the four dimensions of children’s well-being could be fully attributed to the quality of the parent–child relationships. Thus, the multivariate results highlighted the importance of the quality of the mother–child and the father-child relationships in this context.”
This is the source of the repeal report’s claim, above, which (I paraphrase) suggested that it is not really JPC which causes better outcomes for children but merely that JPC arrangements arise in those cases where the child-mother and child-father relationships are good, and so the latter are the true causal factors. But there is no basis for this interpretation within the paper itself. Indeed, its authors are clear that this cannot be concluded. They write,
“Because children living in JPC arrangements tend to have higher-quality relationships with their parents than children living in SPC arrangements, their well-being levels were higher too. Due to the cross-sectional design of the data, the causality of this association cannot be detected here. It is possible that parents who have better relationships with their children are more likely to opt for JPC than for SPC. It is also possible that parents and children in JPC families have better relationships because the custody model facilitates closer relationships between children and both of their parents.”
Quite. In fact it is rather obvious that, for those SPC cases where contact is miniscule or zero, the father cannot have a good relationship with the child, having none at all. More generally we do not know, from this analysis (nor, I suspect, from any others currently available) which factor is causal.
Whilst Steinbach & Augustijn (2022) is an interesting and valuable study, other limitations of it must be appreciated. The first relates to what exactly was meant by “SPC” and “JPC”. This was their definition,
“Children living in SPC arrangements spent less than 30% (of their time) with either their mother or their father (with the other parent being the residential parent), and children living in JPC arrangements spent between 30% and 50% of their time with both their mother and their father. We did not differentiate between days and nights but calculated the total amount of time that the child spent with either parent.”
The problem with this is that we have seen that even the majority of the “lucky” fathers in England and Wales who are awarded unsupervised contact (e.g., the typical “every other weekend and one day in between”) would be classed in this study as “Soul Physical Custody”. That is so in Germany too. Steinbach & Augustijn write,
“…JPC is still very rare in Germany, with less than 5% of all postseparation families having JPC arrangements.”
Moreover, we read, “In separated families (sole or JPC), the child had to have contact with both biological parents to be included in the study”. So genuinely sole physical custody was excluded from the analysis.
What the study is really about is not “reasonable contact versus little contact” but rather “typical contact versus equal shared care”, the latter being a rare condition. So, in as far as the study might be claimed to support the benefits of “JPC” it is really supporting a move from typical current arrangements to closer to equal shared care. In view of the issue of parent-child relationships, however, this would be a claim too far.
Steinbach & Augustijn note,
“…the well-being of children living in SPC was found to be as good as the well-being of children living in JPC once the quality of family relationships was controlled for. Thus, it appears that the quality of the contact matters more than the quantity of the contact—although they are certainly interlinked.”
Again, this is hardly surprising. The beneficial effects of JPC, not being magical, must be mediated by some consequential factor and father-child relationship is a very reasonable finding for such a mediator variable. But the real issue here is whether JPC encourages a better father-child relationship, or vice-versa. Conversely, in the case of SPC does this arrangement frustrate a good father-child relationship arising? Those happy cases in which a good father-child relationship arises despite the arrangement being SPC do not refute this occurring less often in SPC arrangements.
The study includes isolation of the effects of parent conflict on the four wellbeing outcomes for the child. The text of the study notes that parental conflict had a statistically significant deleterious effect on the child’s mental health. But it fails to mention what is revealed in Table 2, namely that there was no significant effect of parental conflict on the other three measures of child wellbeing – an interesting finding.
And one final observation. Exactly how was the quality of the mother-child and father-child relationship measured? In this way,
“The quality of the parent–child relationships was assessed by asking the respondent parent the following questions: “How would you generally describe your relationship with [name target child]?” and “How would you generally describe the relationship between the biological father/mother and [name target child]?” The response categories ranged between 1 (very poor) and 10 (excellent). Depending on the responding parent’s gender, we calculated the mother–child relationship quality and the father–child relationship quality.”
But who was the responding parent? In 86% of cases it was the mother. If I understand the above quote correctly, this means it was generally the mother who reported on her opinion of the father-child relationship. This has the potential to vitiate the whole study. It could be that what has been called the father-child relationship is actually a surrogate for the mother’s opinion of the father.
Conclusion
The repeal report fails to support the repeal.