Courts and Tribunals Bill

Lord Farmer Excerpts

2nd reading
Tuesday 27th October 2026 Lords Chamber

[Lord Farmer (Con)]

My Lords, I congratulate the noble Lord, Lord Stace, on his excellent speech. I particularly welcome the chairman of the Prison Reform Trust to this House. We need more experts on rehabilitation here.

Formerly I have questioned the Clause 16 abolition of the presumption that children benefit from safe contact with both parents. I said that we would need to mitigate personal and societal harms that were highly likely to come as a result, particularly as parents not using the courts will no longer have this as a starting point. I proposed other changes to the Children Act 1989 that should accompany the rather blunt instrument of abolition, particularly improving the welfare checklist.

My sense is that the Government are determined to press ahead with abolition, but I am heartened that colleagues in the other place do not seem willing to discard the presumption without a fight. It was brought in under the coalition through the Children and Families Act 2014 by the Minister, Edward Timpson KC. It is an understatement to say that he is a specialist: a family law barrister with a focus, before and after his political career, on cases of vulnerable children. The presumption does not create an automatic right to contact and certainly does not elevate parental rights above children’s welfare. The paramountcy of the latter was in no way compromised. It was vital then, and still is now, to reinforce the principle that, wherever safe and appropriate, children generally benefit from having both parents involved then and throughout their lives; hence the presumption is rebuttable and expressly qualified by risk of harm.

Crucially, the intent was that the legislation should have an influence beyond the courts in what is called the shadow of the law. We urgently need to encourage a wider societal expectation that both parents should continue to play a positive role in their children’s lives following separation—obviously, if it is safe for the children. I urge the Government not to ignore this history, because one of our besetting sins in this place is to ignore institutional memory.

I agree that we must consider recent evidence and listen to current concerns about a pro-contact culture and children and parents affected by domestic abuse. However, there are methodological issues with the research which is in large part being used to justify, if not require, this change. The authors of the Ministry of Justice October 2025 review said that they had used small, unrepresentative samples and did not access complete court files. The evidence pre-dated major reforms, such as the Domestic Abuse Act 2021, and the updated practice direction 12J. Crucially, they did not properly examine the effect on children of losing a relationship with a safe parent. As to whether there is a pro-contact culture, Sir Andrew McFarlane, previous President of the Family Division of the High Court, cautioned against using such a term.

Finally, exercising the rebuttable presumption, given its qualifications, requires that all involved are aware of domestic abuse. Evidence of poor practice is not the same thing as evidence that the statutory presumption itself has caused or materially contributed to that poor practice. The tragedy that the campaigner Claire Throssell MBE endured when her ex-husband killed their boys while they were in his care, for example, pre-dated the presumption. Such tragedies must not be ignored, and they absolutely require us to examine the system and improve safeguarding. But we seem to have forgotten the maxim that hard cases make bad law. It is not at all clear that removing this presumption will make children safer.

I was saddened to read the rather coercive emotionalism on Report in the Commons when the honourable Member for Penistone and Stocksbridge harangued those opposing the repeal and accused them of audacity. Previous reviews—including, to be fair, those commissioned by a previous Conservative Government—made certain recommendations. However, it is Ministers’ responsibility to weigh the evidence presented, decide whether it is strong enough to make a major change, and not outsource a decision to researchers. It is not audacity to come to a different conclusion.

I am concerned that the case for repeal has not been sufficiently established and that we are reaching for it as a badly targeted remedy. A large body of research says that children’s welfare is furthered by safe contact and better relations with both their parents. The ability to co-parent is a vital consideration and depends on parents’ relationships with each other; hence my interest in improving the welfare checklist to take account of these, a proposal first made during the passage of the Children and Families Act by Labour MPs and Peers.

Legislation and social policy did not give attention to relationships in the late 1980s, but that situation has changed utterly, so it would be highly appropriate to include them now. However, changes to the welfare checklist would not send the same signal as the existing presumption. Sir Andrew McFarlane’s estimate is that 38% of separating families use the courts and the remaining 62% do not; hence, while the welfare checklist is central to judicial decision-making, it is not systematically applied to the 62% who are separating in the shadow of the law. To reiterate, the presumption was intended to establish a broader societal starting point about the importance of safe parental involvement.

In summary, it is not proven that removing the presumption would improve outcomes for children as much as stronger risk assessment, better judicial training to ensure that the law is properly understood and applied, and more effective safeguards. The objective in 2014 was what genuinely served children’s best interests. The most effective response to that end should be the one that we reach for.

Women’s Aid has written movingly about 67 children who have died since 1994, many before the introduction of the presumption, following unsafe contact with an abusive parent. It blames the presumption, despite it coming into force in 2014. As that causation is unproven, why should abolishing the presumption prevent deaths? Removing it will, however, have lifelong negative effects for children when safe parents are excluded from their lives. It will reverberate throughout whole extended families and wider society, which is already struggling with the damage of severed relationships. I fear that Clause 16’s removal of the presumption will inflict damage far beyond any good it might do.