Children first: why mediation matters as the presumption of equal contact is set to go

For decades the family courts in England and Wales have started from an assumption — explicit in guidance and expressed in practice — that children usually benefit from ongoing contact with both parents after separation.

That “pro-contact” stance has delivered better outcomes in many situations, but there is growing evidence and public pressure that a blunt presumption can do real harm when safety, coercive control or ongoing risk are present.

The government has now moved to repeal the statutory presumption of parental involvement in the Children Act 1989, shifting the default from assumed equal contact to an evidence-led assessment of each child’s needs. This is a seismic change for family law, and it has big implications for how mediation must position itself — from the kinds of cases accepted to how “the child’s best interests” are framed in discussions.

What the proposed change actually does — and why it matters

The proposals remove a statutory presumption that tended to steer judges and professionals toward arrangements involving regular contact with both parents. Instead, decision-makers will be required to assess risk and welfare on the facts of each case — a move explicitly meant to centre child safety and wellbeing above a one-size-fits-all rule.

The change follows parliamentary pressure and multiple reviews that highlighted how routine presumptions can leave abuse and coercive control under-recognized in family dispute outcomes.

For families, this will feel liberating to some and alarming to others. Survivors of domestic abuse and many child-safety campaigners see it as overdue: cases have emerged where supervised or unsupervised contact was ordered despite histories of violence or clear indicators of harm. At the same time, some non-abusive parents fear their time with their children will be reduced by inconsistent decision-making unless the courts and practitioners apply the new approach carefully and consistently. The Guardian+1

Why mediation still matters — and must adapt

Mediation has always been promoted as a child-centred, less adversarial route to resolving arrangements. It can reduce conflict, protect children from drawn-out court battles, and produce bespoke agreements parents are more likely to stick to. Studies and practice frameworks emphasise that mediation’s real value lies in its capacity to put the child’s welfare at the heart of negotiation rather than treating parental “entitlement” as the starting point. Missing Children Europe

But the repeal of the presumption changes mediation in three important ways:

1. Mediators never treat all referrals the same, where there are allegations or signs of domestic abuse, coercive control, or child protection concerns, mediators have always applied robust screening and safeguarding steps — and in many cases decline shuttle or joint mediation at all and signpost to specialist services. The new legal backdrop requires clearer protocols to ensure mediation never becomes a vehicle that normalises unsafe contact. How this works in practice we wait to see, if it will include the excessively long draft questionnaire (produced before these proposals were made)

2. The frame shifts from “equal time” to “child-led outcomes.” As courts move away from a presumption of equal involvement, mediated agreements should explicitly document how proposals serve the child’s developmental needs, safety and stability. Will mediators need checklists and templates that capture evidence-based reasoning about schooling, routines, emotional needs, supervision, and risk? In order that agreements can be presented to courts (if necessary) as child-centred and well-reasoned. Frankly making the work more tick box is an awful idea. What does child centred actually mean, every parent always thinks they are doing best for their kid, will mediators now need more input from social services (we're not set up that way) or child experts?

3. Mediation must strengthen child participation (appropriately). With judicial focus tightening on the child’s welfare, mediation has an opportunity — and an obligation — to make children’s voices heard in age-appropriate ways. This doesn’t mean putting children in the middle of conflict; it means using validated tools to elicit preferences, worries and daily realities and ensuring those insights inform the outcome. Training and resources for mediators should be scaled up so participation is meaningful and safe. But there's a cost to Child Inclusive Mediation and it ain't cheap so will parents be willing to pay when in effect they are being told this is determining the outcome (and will CIM 's want that responsibiity mediaiton is about parents taking responsibility not blaming others or relying on others to make decisions for them).

   
   

   Opportunities: safer, more tailored outcomes

   If implemented thoughtfully, the repeal can improve mediation outcomes in three practical ways:

• It reduces pressure to manufacture “equal contact” solutions. Without a presumption, mediators are freer to help parents negotiate arrangements that reflect the child’s routines and safety needs — for example, will this mean "stability" with the "primary" carer during school terms and carefully assessed contact that grows over time, where appropriate.

• It cannot raise the standard of evidence used in negotiations if that means mediators keeping evidence or summarised factual material relevant to the child’s welfare (health reports, school feedback, safety plans), but may mean considering them to improve the quality of agreements and does it mean mediator's are more likely to be scrutinised in court?

• It encourages early engagement with specialist services. Where abuse or risk is identified, mediation pathways can incorporate advocacy, therapeutic parenting support, safeguarding referrals, or domestic abuse specialists — reducing the likelihood of unsafe or tokenistic contact arrangements.

Risks and how to mitigate them

Change can create gaps. There is a real danger that different professionals apply the new approach inconsistently, or that stretches in capacity (legal aid, specialist support, court training) leave vulnerable families without recourse. To mitigate these risks:

• Invest in training: Judges, magistrates, mediators and guardians need updated training on coercive control, child development, trauma-informed practice and how to evaluate evidence of harm. The government and judiciary have repeatedly cited training as essential to make legal reforms meaningful. The Guardian+1

• Strengthen gateway services: Early legal advice pilots and non-court dispute resolution pathways should be expanded so parents understand options and risks before mediation starts. Effective triage keeps unsafe cases out of joint mediation and into specialist services.

• Reliance on clear mediation standards form the (closed shop) of the FMC: National minimum standards for intake, documentation and safeguarding will reduce postcode lottery effects and help courts give weight to mediated agreements where appropriate.

Creation of a union for mediators must also now be considered.

What practitioners should do now

For mediators, family lawyers and policy-makers the next six to twelve months should be a period of active preparation, not passive waiting. Practical steps include:

• Review screening tools and referral pathways now; tighten domestic abuse protocols.

• Update mediation agreement templates to require an express “child welfare statement” summarising how the agreement meets the child’s needs.

• Expand links with local domestic-abuse and child-welfare services to offer blended pathways (mediation + specialist support).

• Invest in supervised professional development on handling high-risk cases, child participation and trauma-informed practice.

• Communicate to clients what the change means: clear public-facing guidance helps non-legal parents understand that “equal contact” is no longer an automatic expectation and explains how mediation can still help them reach safe, workable arrangements. Weightmans

Conclusion: a chance to make mediation more child-centred

Removing the presumption of equal contact is more than a statutory tweak — it’s a cultural prompt to make child safety the real north star of family decision-making. That shift aligns closely with the best instincts of good mediation: bespoke solutions that reduce conflict and centre the child. But it will only deliver on that promise if mediation services adapt fast — improving intake, deepening links with specialist supports, documenting child-centred reasoning, and ensuring children’s voices are heard safely. Done right, mediation can be a powerful partner to the courts in ensuring children’s welfare is not an afterthought but the starting point.