When is ‘the end of the road’ reached? Observing the presumption of parental involvement through systems theory

Abstract

In 2014 the Children Act 1989 was amended to include a presuption that involvement of a parent in a child’s life will further the child’s welfare unless there is evidence of the risk of harm. Kaganas published two seminal articles which concluded that the government’s ideological rationale for introducting the presumption of parental involvement not only failed to materialise but had some unintended, possibly detrimental, consequences for mothers. This article examines the operation and effects of the presumption of parental involvement in recent years based on an analysis of private law family court judgments between July 2020 and December 2023. Drawing on Luhmann’s theory of autopoietic social systems, it examines the possibilities for and limitations on using law to drive social change beyond the operations of the legal system itself. It concludes that the statutory presumption has failed to serve its stated purpose and has even had the unintended consequence of generating legal communications about the risks of parental involvement. From a feminist perspective, it concludes that positive changes observed in the family court response to domestic and child abuse are an achievement, in light of the limits on steering society, at least until something changes in the unknowable future.