Journal Article

From utility to rights? The presumption of contact in practice

R Bailey-Harris, J Barron and J Pearce

in International Journal of Law, Policy and the Family

Volume 13, issue 2, pages 111-131
Published in print August 1999 | ISSN: 1360-9939
Published online August 1999 | e-ISSN: 1464-3707 | DOI: http://dx.doi.org/10.1093/lawfam/13.2.111
From utility to rights? The presumption of contact in practice

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This article examines the strong presumption in favour of contact between the child and the non-resident parent which courts in England have developed, notwithstanding the absence of such a presumption on the face of the Children Act 1989. Our material is based on an analysis of recent reported case law and on an empirical study of practice in county courts. The presumption is strongly articulated in all levels of courts applying the legislation, although it may be possible to discern in very recent authorities at appellate level an increasing willingness to find exceptional circumstances in which it is rebutted. Cases involving violence and not treated as a separate category. We argue that our material demonstrates a shift in judicial approach from utility to rights and from discretion to rule, and thus represents a drift (albeit unarticulated) into conformity with the language of the United Nations Convention on the rights of the Child. At the same time our material exposes some of the problems in determining the content of the child's rights to contact which the Convention declares.

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Subjects: Family Law ; Marriage and the Family

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