The changing landscape for children in the family court

For children involved in litigation between their parents, the law governing how their arrangements are decided sits within the Children Act 1989. A child’s welfare is the court’s paramount concern. Disputes between parents about children are known to practitioners as ‘private law’.

Recent reforms to private law children’s cases

The availability of legal aid in private law disputes was restricted in 2013 to cases involving domestic abuse, including a risk of domestic abuse.

In 2014, section 1(2A) of the Children Act 1989 introduced the presumption that, unless there is evidence to the contrary, a child’s welfare is furthered by both parents being involved in their life.

There have been several recent changes for children in the family court. One of the most topical is the government’s announcement of the intended removal of the above presumption, which is supported by many domestic abuse organisations and campaigners. The Ministry of Justice (MOJ) has said it will legislate for the repeal when parliamentary time allows.

How the Pathfinder pilot is reshaping the family court process

A further change, arising from the MOJ’s harm panel report published in June 2020, is the Pathfinder pilot, introduced in 2022.

Pathfinder is the new private law process used in many parts of England and across Wales. It aims to place a child’s voice at the forefront of proceedings and reduce delay, cutting the average length of proceedings in some areas to around 20 weeks. Currently, around 21% of private law cases fall under Pathfinder, with more areas to follow.

Pathfinder also aims to improve the experience of court users who are victims of domestic abuse and to avoid re-traumatisation, which was a key problem identified in the MOJ harm report.

In a Pathfinder case, if allegations of domestic abuse are made, the victim will be supported by an independent domestic violence adviser, with some courts also offering separate advisers for children. Advisers attend court with the alleged victim and contribute to the professional report about the child or children, known as a Child Impact Report.

This report is a crucial document and contains final recommendations about arrangements for the child or children concerned, which the court must take into account. Critically, the report will be available within eight to 10 weeks of a court application being issued by a parent, and before any hearing takes place.

Another change following the introduction of the Pathfinder pilot is the Family Justice Council’s guidance issued in December 2024 on allegations of parental alienation. The guidance describes the concept of ‘parental alienation syndrome’ as a harmful pseudo-science with no evidential basis. It also warns that particular care should be taken where allegations of alienating behaviours are made in response to domestic abuse allegations – which feature in 50% to 60% of cases. The guidance recognises that allegations of parental alienation are often raised in response to allegations of domestic abuse.

Balancing safeguarding with the risk of unnecessary loss of contact

It’s well documented that a greater awareness of domestic abuse is helpful to children. The Domestic Abuse Act 2021 formally recognised that children witnessing domestic abuse are victims of the abuse in their own right.

However, caution is needed when applying the new principles that shape how the court deals with parental disputes. With change comes risk, and there may now be an increased risk of children being caught up in false or exaggerated allegations that could have very serious consequences – including severing ties with a birth parent .

Arguably, the intended removal of the presumption that both parents should be involved in a child’s life unless the contrary is shown, the stricter framework for proving alienation and the Pathfinder pilot do little to reduce that risk.

It’s a longstanding principle that the family court should leave no stone unturned before severing ties with a birth parent. The long-term psychological impact on children of losing contact with a birth parent should not be underestimated and where there are no findings of harm to a child, the court has a positive duty to promote contact.

Sadly, the loss of one parent is a worrying and common feature of private law proceedings, even where there is no proven risk of harm. The changing landscape may increase the risk of children losing contact with a parent in circumstances where that relationship should still be supported, albeit with safeguarding measures where appropriate.

That said, there are positive aspects to the changing landscape – particularly for victims of domestic abuse and their children, where any form of contact may be harmful, and for children who would previously have been caught in lengthy litigation without their voices being heard.

What’s clear is that the changing landscape is highly topical. Only time will tell whether outcomes improve for children within the family court system, but expert advice from a qualified family lawyer in the event of a parental dispute is more crucial than ever.