PrLWG4: presuming contact?
PrLWG4
In June 2020 the Ministry of Justice published a review of the possible harm to children in domestic violence cases. The paper, entitled ‘Assessing Risk of Harm to Children in Private Law Cases’, was co-authored by Professors Rosemary Hunter, Mary Burton and Liz Trinder.
This report recommends (Para 11.4) that the presumption of parental involvement should not remain in its present form. A recommendation will be made in due course.
The Options
The possibilities range from ignoring the report’s recommendation, to discarding the presumption in all cases, to anywhere in between.
For instance, the Presumption of Parental Involvement could be suspended on a Finding of Fact of serious domestic violence; or, on a finding of non-serious Domestic Violence; or on an unproven allegation of Domestic Violence, either of a serious nature, or not. And so on.
An appreciation of what the ‘presumption of parental involvement’ means may assist in deciding what should be done. Official thinking is not always au point.
THE HIERARCHY OF PRESUMPTIONS
The ‘presumption of parental involvement’ is Number Two in a hierarchy of presumptions, dealt with in tabulated form at Getting the Law Wrong. Whitehall and its various Reviews routinely muddle the different presumptions up. The Hierarchy of Presumptions includes:
The Presumption of Meaningful Contact
The Presumption of Contact
No Presumption of Contact:
For these purposes, the words ‘involvement’ and ‘contact’ are just about interchangeable. For instance, child-parent contact at meaningful levels will enable meaningful child-parent involvement (and meaningful child-parent relations); and child-parent contact at meaningless levels will enable meaningless child-parent involvement (and meaningless child-parent relations). Likewise, ‘substantial’, ‘substantive’ or ‘reasonable’ can be swapped for ‘meaningful’ without material alteration in the analysis set out below.
1.The Presumption of Meaningful Contact
The Presumption of Meaningful Contact is the legal system it often is said we have - but do not have. It places the burden on a parent opposing meaningful contact to show good reason why meaningful contact should not happen:
an unwarranted stoppage of meaningful contact is a Bad Thing.
2. The Presumption of Contact
The next step down - the legal system we do have - is ‘the Presumption of [mere] Contact or [mere] Involvement’.
This lesser system only protects a presumptive right to some contact, no matter how fleeting.
If contact over-and-above the fleeting is sought, the proposed increment must be justified by the applicant parent. The upshot is:
an unwarranted stoppage of meaningful contact is not a Bad Thing
parents and children have no presumptive right to meaningful contact with one another
when contact is set at levels that are not meaningful, including very low levels indeed, neither the child nor parent is deprived of anything to which they had a presumptive right, or expectation.
Plus, in practical terms, if 99.9% of all contact can be stopped for no good reason, why cry too much about stopping its last remaining vestige? Orders for almost-no-contact (frequently made) are tantamount to orders for no contact, which often ensues. The presumption of contact is an open door to the stoppage of all contact.
3. No Presumption of Contact:
Under this presumption:
the unwarranted stoppage of all contact is not a Bad Thing
to prevent all contact is a neutral act performable at will and without reason
This presumption defines ‘benefit of the child’ to include no ongoing child-parent contact of any kind.
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A HISTORICAL PERSPECTIVE
To speak at hazard, perhaps almost all societies through almost all time have operated the Presumption of Meaningful Contact. That is how children are raised. Our society may be exceptional in its espousal - within the Family Courts - of the presumption of [mere] contact.
There is something about Family Law that destabilises minds with otherwise full function. In the larger world, to ask if parents and children should ever be allowed to meet is to ask if the Pope is Catholic. In similar vein, friends and neighbours could be canvassed to discover if it is OK to separate children from their parents - for no reason at all? Should that be allowed? Should that be encouraged?
Same thing: the Pope is still Catholic. Now put the question with the addition “Ah, but I mean in family law!” and the brain freezes. But it is the same question: the Law exists to embody, not flout, conventional ethics.
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