Courts and Tribunals Bill (Tenth sitting)
I begin by echoing the comments made by my hon. Friend the Member for Bexhill and Battle. I completely understand why the Government have brought this clause forward. I welcome the debate. Similar to the hon. Member for Chichester, who spoke so eloquently, I was deeply moved by the evidence we heard from Claire Throssell. I cannot even imagine how she has coped. To do what she has done and to try to take something positive from that is an incredible thing. The evidence this Committee has heard from those witnesses and other survivors of domestic abuse is that they feel that the family courts have not properly identified risk and believe that a pro-contact culture has, at times, overridden safety. That is extremely concerning, and it is absolutely right that we take it extremely seriously. Child safety must come first. Where the present framework has contributed to poor outcomes, it is right that the Government act, but it is also incumbent on us today to make sure that the clause that is being repealed is indeed the cause of the harm to those children. I also make the point that, where Parliament removes an existing statutory principle, it has a duty to be clear about what will replace it. My concern today is less with the Government’s objective than with whether repeal on its own is sufficiently precise, evidence based and thought through to achieve the Ministers’ intended objective. The Government’s own impact assessment, which has already been set out, says that “repeal alone is unlikely to materially change outcomes”, even though it is expected to “change the process judges follow”. That is an important starting point for this debate. It is really important that we do not make changes to law because everyone wants us to make those changes and thinks that will improve things when, in reality, we have the evidence and facts to know that it may not deliver those outcomes. It is incumbent on all of us to make sure that we actually deliver the outcomes that we all desire; we all have the same ambition. I know this comes from a good place and we are all approaching this debate in the best way we can to protect children. My purpose this afternoon is to be constructive—I am not saying I have all the answers on this, and I hope my comments will be taken in that spirit. If the Government proceed with repeal, do they also need to do more to provide a principles replacement framework, clearer guidance and stronger supporting reforms? It is important to start with the facts around the presumption. The current presumption does not give any parent an automatic right to contact, override the welfare checklist or override the paramountcy principle in section 1 of the Children Act 1989, and it certainly does not require courts to make orders that place children at risk. The Family Services Foundation is clear in its written evidence that current law already places the child’s welfare first, stating: “Section 1(6)…expressly ensures the presumption applies” only where parental involvement “does not put the child at risk of suffering harm”. It says that practice direction 12J and the Domestic Abuse Act 2021 already provide an important framework for identifying and responding to abuse in family proceedings. Equally, I recognise the contrary concern expressed by survivors who say that, in abuse cases, the presumption can place pressure on courts to prioritise parental contact even where there are serious safety concerns and can make it harder for victims to be properly heard and protected. The real question is therefore not whether safety matters more than contact—it plainly does—but whether removing the current presumption will improve how risk is identified and acted upon, or whether it risks creating new uncertainty while leaving the deeper operational problems untouched and discouraging parental involvement in cases where it would actually be beneficial. There are already substantial protections in the current legal framework, although they clearly fail in the worst way on occasion. The Family Services Foundation points out that the Children Act 1989, practice direction 12J and the Domestic Abuse Act 2021 already equip the courts to restrict or refuse contact where “harm is shown”. It also reminds us that the UK is bound by the UN convention on the rights of the child, including article 9, which recognises that children should maintain regular contact with both parents unless that is “contrary to the child’s best interests”. Both Parents Matter makes a similar point, saying: “The Presumption was introduced in 2014” to reflect the UNCRC and provide a statutory benchmark that the safe involvement of both parents generally furthers child welfare. I emphasise the word “safe”—no one has ever said that parents should be involved if it is not safe. I make those points not to argue that nothing should change. If the Government are minded to proceed, we need a clear understanding of how the replacement framework will continue to distinguish between safe parental involvement, which can be beneficial, and unsafe parental involvement, which must be stopped. At present, I am not sure the Bill by itself gives enough reassurance on that point, and I am worried that safe parental contact will be discouraged. That leads to one of the most important points of all. The Government’s own documents suggest that repeal alone may not be the solution that they are hoping it will be. As mentioned earlier, the impact assessment says, “repeal alone is unlikely to materially change outcomes”, although it is expected to change the process that judges follow. That is a significant admission. It suggests that if the Government want safer and better outcomes in family proceedings, repeal can be only part of the picture, and perhaps not the decisive part. We should keep in mind that many of the awful failures that have rightly horrified people seem to be failures of risk assessment, information sharing, institutional practice, professional judgment and resourcing. The Centre for Policy Research on Men and Boys puts it well: “If abusive contact is being ordered or preserved inappropriately, then the concern lies with the quality of risk assessment, the speed and fairness of investigation, and the consistency with which courts and agencies apply the law.” That is a useful and constructive way of putting the point. It does not deny the seriousness of the problem, but it does ask whether the solution is the right one. My concern is not that the Government want to strengthen protection; it is that repeal may be presented as more self-sufficient than, on the basis of the evidence, it really is. I also think the Committee should be careful and candid about the strength of the evidence base behind repeal. Both Parents Matter says that the Government’s own review “provided limited and inconclusive evidence of the impact of the Presumption. It could not determine how often the Presumption was applied in judgments, nor could it assess how harm…related to the application of the Presumption.” It also criticises the underlying methodology: “Quantitative analysis was based on only 245 court judgments, with over half from a single magistrates’ bench. Qualitative analysis involved only 29 parents.” It added that the literature review “examined only 55 studies, excluded all research published after April 2024,” and omitted “major studies showing positive outcomes” from safe shared parenting and ongoing parental involvement. Other evidence goes further, arguing that the Government review appears to have misunderstood or overstated the conclusions to be drawn from Professor Anja Steinbach’s work. I recall a striking line from Professor Steinbach, who said: “There is plenty of research showing that contact with both parents is beneficial”, and “except for violence…contact with both parents is the baseline.” I do not think that material should make the Committee cautious about treating the review as a fully settled or exhausted evidential platform for repeal. Again, my point is not that that means that repeal must not happen; it is that we should not over-claim what the existing evidence can prove or support. I also think it is important to avoid turning this into a false choice between protecting children from abuse and supporting children to maintain safe relationships with both parents. The Centre for Policy Research on Men and Boys says that the public debate often frames the issue in that way. However, it says: “A good family justice system must do both. It must protect children and adult victims from abusive parents. It must also protect children from the avoidable loss of safe, loving, and important parental relationships.” I think that is right. The Family Services Foundation similarly said: “reform should focus on enhancing the protections available, rather than creating conditions that may inadvertently prevent children from maintaining safe, meaningful relationships with their parents.” That is why I urge the Minister not to present clause 17 as though all principled concern about repeal is somehow concern for parental rights over child safety. It is perfectly possible to support the Government’s child safety objective while asking whether the law should continue to recognise some clear and carefully framed way, where there is no established risk of harm, of enabling children to benefit from stable and safe relationships with both parents. Several of the written submissions that we received raise concerns about unintended consequences if repeal proceeds without a clear replacement framework. Both Parents Matter warns: “Removing this important statutory benchmark, and relying instead on practice and non statutory frameworks” may increase uncertainty, inconsistency and conflict. The Family Services Foundation says something similar, warning that repeal may confuse frontline professionals, affect negotiations outside court, reduce the incentive for out-of-court resolution and, ultimately, increase strain on a family court system that is already under pressure. It notes that only a minority of separated families ever come before the courts, but many more families and professionals orient their expectations around the legal framework. That is a serious point. Even if the court’s paramount consideration remains unchanged, removing a statutory starting point may still alter behaviour before a case ever reaches a final hearing. It may affect how solicitors advise, how CAFCASS frames disputes, how mediation is approached and how parents negotiate. With that point in mind, I hope that the Minister might be in a position to share some more detail on how she expects the changes to operate, and why she is confident that they will improve outcomes rather than simply shift conflict elsewhere.