The presumption of contact extends to the issue of parental responsibility. Family law reinforces a cultural and legal norm of parental responsibility for both parents, even in cases involving rape and murder by parents, often fathers. This approach fails to adequately consider the safety and well-being of survivors and their children, perpetuating an environment that can place them at risk. Under statute, a married father can never have his parental responsibility removed even if he killed the child’s mother or violently assaulted the child. The Family Law Report examines the Court of Appeal case of Re A (Parental Responsibility)  EWCA Civ 689, in which Alexandra Wilks represented the Appellant Mother seeking to curtail the father’s parental responsibility due to domestic abuse. Despite the argument for incompatibility under the Human Rights Act, the court upheld the distinction between parental responsibility for married and unmarried fathers, citing the historical principle. This decision reflects the historical principle of irrevocable parental authority for married fathers, even with a history of domestic abuse.
Why is the presumption of child contact and parental responsibility an issue?
The Ministry of Justice published the Harm Report in June 2020, which assessed the risk of harm caused to parents and children in family law proceedings. The report showed the systemic minimisation of allegations of domestic abuse in the family courts, leaving parent and child survivors suffering harm. The report also highlighted the ‘pro-contact’ culture in the family courts even in cases of domestic abuse. This culture prevents the family courts from properly assessing the harm that contact with a perpetrator of domestic abuse can have on a child’s well-being and safety, which leads to unsafe contact decisions.
One of the most common litigation tactics that abusers use to maintain contact is accusations of parental alienation. Parental alienation has become a strategy used by abusive parents to silence, threaten and blame victims of domestic abuse who are trying to protect their children from unsafe contact. There have been many cases in which, despite domestic abuse having been found, the victim is ordered by the Judge that they must not ‘alienate’ the child from their other parent, the perpetrator themselves. A UN report of the Special Rapporteur on violence against women and girls discussed how parental alienation is a pseudoscience. It describes parental alienation as a “discredited and unscientific pseudo-concept” aimed at discrediting mothers who seek to protect their children from abuse.
BAME women are particularly vulnerable when going through the family courts as they often feel tremendous social and cultural pressure to reconcile and agree to contact. They experience intersectional inequalities such as sexism, racism and other barriers. Allegations of domestic abuse are routinely minimised. Far too often women, and their children are re-traumatised, re-victimised and failed by the family justice system. There is no winning or losing for victims in the family court. It is simply damage limitation.
After the publication of the Harm Report, the government pledged to consult on whether the presumption of contact with both parents should change in cases of domestic abuse. More than two years since the report, the government has done nothing. We cannot sit back and wait for change, we must act now.
Consider cases like that of JH v MF , where survivors’ pleas for protective measures were disregarded, revealing a concerning lack of comprehension about the complex dynamics of domestic abuse. This case highlights the critical necessity to revise existing practices and protect survivors and their children from further harm. The Court of Appeal case of Re H-N and Others  EWCA Civ 448 also vividly exemplifies this troubling trend wherein the courts appear inclined to prioritise parental contact with the child, even in the face of serious allegations of abuse. The appeals examined within the case involved instances where allegations of domestic abuse were vehemently contested. The court’s guidance on key matters, such as the necessity of fact-finding hearings and acknowledging patterns of coercive behaviour, underscores how the pro-contact culture often overrides the concerns raised by serious abuse allegations.
The current family law presumption of contact with both parents should not apply in cases where domestic abuse has been found to have taken place. Instead, we support a presumption of no child contact in cases where domestic abuse is a relevant factor. We believe domestic abuse is harmful to victims and the family courts are failing women and children by ordering unsafe contact, even giving abusive fathers parental responsibility.
What Do We Do?
We are launching a two-year campaign to end this harmful presumption of contact in the family courts. Co-led by Director Dr Charlotte Proudman and Advisor Dr Adrienne Barnett, Right to Equality is taking tangible action to reform the family justice system. Right to Equality works to change legislation where abusive parents have a right to parental involvement. We believe that contact with abusive parents can cause adult and child survivor’s serious harm. We will continue to campaign, lobby and gather evidence to ensure no more women and children lose their lives at the hands of abusive parents.