Judgment analysis – review of the presumption of parental involvement

The National Centre for Social Research (NatCen) was commissioned to deliver this research as part of the Ministry of Justice (MoJ)'s Review of the presumption of parental involvement (The Review). 

For context, The Review follows the publication of the Expert Panel’s report ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ (MoJ, 2020a). That report concluded that the presumption is being “implemented inconsistently and is rarely disapplied” in the family courts and contributed to a “pro-contact culture” that could be putting children and parents at risk of harm (ibid: 88). 

NatCen’s study included records from 245 court records and had three key research objectives:

• Objective 1: To understand how courts are applying the presumption and the exception in eligible private law children cases, and how this application affects the type and nature of orders granted.
• Objective 2: To understand how risk of harm and possible benefits of parental involvement are described, referred to and applied in judgments and written facts and reasons and how this relates to the type and nature of orders granted. 

• Objective 3: To understand what other case facts, circumstances or features are discussed and applied in judgments and written facts and reasons. 

  Findings

  While limitations in the research mean that it’s not possible to generalise the findings from this research, three key findings are discussed in the report. 
   

• No involvement of a parent in a child’s life is rarely ordered. Our research found two cases where 'no involvement’ was part of the final order, however, in one of those cases there was an aim for involvement to resume in the future. Eight per cent of cases reviewed included supervised/supported contact and ten per cent indirect/ technology mediated contact.
• The presumption of parental involvement is discussed inconsistently. It was mentioned in 24% of the judgments/written facts and reasons reviewed.
• Harm was discussed in over half of the judgments/written facts and reasons with inconsistent detail. Harm or risk of harm were discussed in 59% of the judgments/written facts and reasons, though the specific types of harm were not always named. Domestic abuse was discussed in 22% of the judgments/written facts and reasons.

This was novel research using unpublished court records. Reflecting on the challenges and limitations in this research pointed to recommendations for improving data quality and the data infrastructure within the family court system. Not only would the recommendations enable more rigorous research, leading to a more evidence-based judicial system, but they would also improve the operational efficiency of the digital filing system. These improvements would benefit of court staff, legal professionals and, ultimately, the children and families affect by court decisions. 

Methodology 

This study involved reviewing electronic court files and extracting data from them using a form. Cases had to meet the following eligibility criteria: cases that closed from 2019 – 2022 ¹ ,  involved an application or order under section 8 of the Children Act (child arrangement order, prohibited steps order, specific issue order) ² ,  and closed within one of the identified sample courts.

The final sample included court files from eight courts in England and Wales. A two-staged process was used to oversample eligible files and then manually screen them to ensure that they contained the documents required for the study. The final sample comprised 245 cases: one judgment or written facts and reasons per case.

A data collection tool was developed to extract data from the documents, translating them into quantitative variables. 

While it was not possible to carry out meaningful regression or relational analysis to identify predictive patterns, descriptive and subgroup analysis was carried out in Excel and R. Qualitative data about orders with phased and stepped arrangements and information recorded as ‘other’ were coded so that the information could be categorised and analysed thematically.