From family to file: how the state is redefining parenthood
The British Government’s latest family law reform appears technical at first glance. Buried within Clause 17 of the Courts and Tribunals Bill is a proposal to repeal the statutory presumption that children benefit from the involvement of both parents after separation. Yet behind the legal drafting lies a deeper philosophical shift. What is being revised is not merely a procedural rule of family courts, but the moral architecture of the family itself.
Justice Minister Baroness Levitt KC defended the reform with stark clarity: “Being a parent is a privilege not a right: the only right which matters is a child’s right to safety.” Few would dispute that protecting children from harm must be the paramount concern of the law. But the issue raised by this reform is not whether the state should intervene when a child is endangered. The question is whether the law should still recognise the ordinary and natural bond between parents and children as a social good that precedes the state.
The Presumption That Is Being Removed
Since 2014, English family law has contained a statutory principle that the involvement of each parent in a child’s life will ordinarily further the child’s welfare.¹ This principle was introduced through the Children and Families Act and inserted into the Children Act 1989 as Section 1(2A). It was carefully framed. The presumption applied only where the parent posed no risk of harm, and it did not mandate equal contact or shared custody. Courts retained full discretion to restrict contact where safeguarding concerns existed.
The principle therefore functioned not as an absolute rule but as a starting point — a recognition that children ordinarily benefit from knowing and being cared for by both their mother and their father.
Clause 17 proposes to remove that presumption entirely.
In practical terms, courts would still decide custody and contact based on the “best interests of the child”, the long-standing paramount consideration of the Children Act.² Yet the legal starting point would change. Judges would no longer begin with the principle that parental involvement is generally beneficial. Each case would begin without such a presumption, relying instead on professional assessments and judicial discretion.
The change may appear modest. Its implications are not.
When Policy Follows Tragedy
The reform has been driven largely by advocacy from domestic abuse campaign groups. Organisations such as Women’s Aid have documented cases in which children were killed by a parent during court-ordered contact arrangements. Their research records sixty-seven such deaths over three decades.³
Each of these cases represents a profound failure of the system. No civilised society can accept preventable harm to children.
Yet the crucial question remains: what caused those failures?
The Ministry of Justice’s own review of the family courts in 2020 did not conclude that the statutory presumption itself endangered children.⁴ Rather, it found that courts sometimes failed to apply existing safeguarding provisions adequately. Judges already possessed the legal authority to deny contact where there was a risk of harm.
In other words, the legal framework allowed courts to protect children. The problem lay in how professionals used that framework.
The Government’s solution, however, is not to reform professional practice but to remove the statutory presumption altogether.
This raises a troubling possibility. The reform addresses the symbolic principle rather than the operational failure.
From Parental Responsibility to Professional Assessment
The deeper effect of the reform may lie in the increasing professionalisation of family law. Modern custody decisions depend heavily on assessments by safeguarding agencies such as Cafcass, alongside reports from psychologists, social workers, and court-appointed experts.
These assessments can be invaluable. They also transform the role of the state in family life.
Historically, the law presumed that parents were the natural guardians of their children and that state intervention was exceptional. In the emerging model, parental involvement becomes something to be evaluated through professional assessment rather than assumed as a natural bond.
The removal of the presumption strengthens this shift.
Courts will still consider parental relationships, but the principle that children ordinarily benefit from both parents will no longer guide the process. Instead, decisions will increasingly rely on expert evaluations of what arrangement is judged beneficial in each individual case.
The difference is subtle but significant. The presumption affirms the family as a social institution. Its removal frames parental involvement as contingent upon administrative assessment.
The Demographic Context
This reform cannot be understood in isolation from wider changes in family life. The proportion of children born outside marriage has risen dramatically in Britain over the past half-century. According to the Office for National Statistics, nearly half of births in England and Wales now occur outside marriage.⁵
This transformation has inevitably increased the role of courts in regulating family relationships after separation.
Where marriage once structured parental obligations through publicly recognised commitment, family courts now adjudicate disputes that earlier generations rarely brought before the state. The more fragile the social institution of marriage becomes, the more central the judiciary becomes in organising family life.
Legal reforms that weaken the presumption of parental involvement therefore carry consequences that extend beyond individual cases. They shape the cultural understanding of what families are and how the state relates to them.
Marriage, the Family, and the Limits of the State
From a Catholic perspective, the issue reaches even deeper. The Church has long taught that the family is a society prior to the state. Parents possess not only responsibilities but also rights derived from the natural order itself.
Pope Leo XIII articulated this principle with characteristic clarity:
“The family… possesses rights and duties peculiar to itself which are quite independent of the State.”⁶
Similarly, Pope Pius XI insisted that the state exists to assist the family, not to replace it:
“The child is by nature something prior to the State, and the family must have rights and duties prior to those of the State.”⁷
These principles do not deny the legitimacy of state intervention when children are endangered. Rather, they establish a moral hierarchy: the family is the primary community in which children are formed, and the state intervenes only when that natural order breaks down.
When the law begins to treat parental involvement as a conditional privilege rather than an assumed good, it subtly reverses that hierarchy.
A Question of First Principles
The debate surrounding Clause 17 ultimately concerns a question older than the modern welfare state: who bears the primary responsibility for the raising of children?
One vision holds that parents are the natural guardians of their children, with the state intervening only when serious harm is evident. The other views the state as the ultimate arbiter of children’s welfare, assessing the value of parental involvement through professional processes.
Most modern legal systems attempt to balance these principles. But legislative reforms often tilt the balance gradually in one direction.
By removing the statutory presumption that children benefit from the involvement of both parents, the Government risks weakening a principle that has long underpinned family law: that the ordinary upbringing of children belongs first within the family itself.
The tragedy of individual cases must never be ignored. Yet public policy must also recognise the broader truth affirmed by both experience and social science: that children, where it is safe and possible, benefit profoundly from the presence of both their mother and their father.
The law should not forget what civilisation already knows.
¹ Children and Families Act 2014, s.11 inserting Children Act 1989, s.1(2A).
² Children Act 1989, s.1(1).
³ Women’s Aid, Child First: 30 Years of Child Contact Deaths, research briefing.
⁴ UK Ministry of Justice, Assessing Risk of Harm to Children and Parents in Private Law Children Cases (2020).
⁵ Office for National Statistics, Births in England and Wales Statistical Bulletin.
⁶ Rerum Novarum, §13.
⁷ Quadragesimo Anno, §49.
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