The Archers: Law on child contact arrangements means Helen Titchener’s ordeal is not yet over

Even after separation or divorce, domestic abuse cases can still carry on due to the current child contact arrangement laws, which also puts the children at risk of violence too

Louiza Patikas plays Helen Archer and Timothy Watson is Rob Titchener (BBC)

BBC Radio 4’s long-running series The Archers has recently received widespread media coverage and attracted a large audience for a story focusing on the long-term domestic abuse by Rob Titchener of his wife, Helen. Events came to a head when she stabbed him in order to protect her child, Henry, earlier this year. She stood trial for attempted murder and was acquitted. But the story is not over and Rob confronted her after the trial with a threat: “You haven’t got rid of me. As long as we have a child together, you never will.”

For many women, even if the child lives with them, this threat is a reality and violence often escalates or even begins after victims separate from the abuser. Abusers often use contact – the time they spend with their children either by informal agreement or under a court order – as an opportunity to track down women seeking to keep their location secret or simply in order to regain control over the victim.

In one large research study, which looked at cases of domestic violence and child contact arrangements, the majority of mothers were assaulted by their husbands or partners after the relationship had broken down and the parties had separated. All the post-separation violence in those cases was linked to child contact. There are also risks to children: men who are violent to their partners are also likely to harm their children and it is clear that children who witness domestic violence are damaged as a result.

The law about contact

Since the 1980s, the courts have applied what they have called a “strong presumption” or an “assumption” that a continuing relationship with both parents after parental separation or divorce is best for children. The courts have said that it is “almost always” in a child’s best interests to have contact with the non-resident parent, usually the father.

Mothers who oppose contact, often because of concerns about violence, have been branded as being “implacably hostile” by the courts, lawyers and professionals and they are urged to reach “sensible” agreements with their former partners. Mothers who do not cooperate are punished, sometimes by imprisonment, or instructed to undergo therapy.

Solicitors, mediators, child welfare professionals and officers from the Children and Family Court Advisory and Support Service, the agency that represents children’s interests in court, often bend over backwards to ensure that contact happens.

This push for contact is not necessarily abandoned in cases where mothers make allegations of domestic violence. In one case in 2000, the Court of Appeal was faced with four contact applications from violent fathers. The court had before it a report by child welfare experts recommending a presumption that there be no contact in domestic violence cases. Despite this, the court took the view that, although it should not assume that allowing contact was always the right course of action, it could still decide to order contact if, in spite of the violence, it considered such a decision to be best for the child. In serious cases, this contact might be by telephone,for example, rather than face-to-face or it might be supervised.

Hardening of attitudes

Despite this strong preference for contact, fathers’ rights groups such as Fathers4Justice complained in the late 1990s and early 2000s that the courts were biased and that they allowed mothers to flout contact orders.

As a result of these criticisms, courts have begun to treat mothers who oppose contact more harshly. And new punishments were introduced into the Children Act 1989 by means of the Children and Adoption Act 2006. These are designed to ensure that mothers obey contact orders. Imprisonment of mothers resisting contact or changing the child’s home to the father’s are also considered appropriate steps in some cases.

A statutory presumption that contact is in children’s best interests also came into force in October 2014. Section 1 of the Children Act 1989 now provides that the court should presume that “involvement” in the life of the child by the non-resident parent will “further the child’s welfare”. This will be presumed unless it can be shown that involvement will put the child at risk of harm.

Since 2013, as a result of other changes to the law, legal aid has no longer been available for contact disputes. There is an exception where there are allegations of domestic violence but there are prescriptive rules concerning what evidence of abuse is acceptable – for example, there needs to be evidence of a stay at a refuge, a court order or a letter from the police. But many women are not in a position to provide that evidence.

The result has been that victims of domestic violence may have to represent themselves in court and face aggressive questioning by their self-representing abuser, rather than questioning by a lawyer. This compounds the abuse. The rules governing the evidence required to prove domestic violence are currently under review.

Another change is that parties are expected to attend a Mediation Information and Assessment Meeting before entering the court system. Although mediation is not appropriate in cases of domestic violence, vulnerable women may feel obliged to attend mediation.

The effects of the changes to the law regarding contact are not yet clear. The judgments that are publicly available suggest that the courts are not explicitly referring to the new statutory presumption. Nevertheless, many abusive fathers are awarded contact as before because, even before the legislation was passed, the courts were operating on the basis of a presumption that contact is best and they have continued to do so.

In addition, while “involvement” does not mean equal time for both parents, the changes to the law have the potential to increase the claims of fathers, including abusive men, that they have a right to generous contact with their children and may strengthen the bargaining position of fathers outside the courtroom.

This means that many women who have suffered domestic abuse will find themselves in mediation or in informal negotiations about contact with their more powerful abusers and may feel unable to resist the demand for “involvement”.

Under review

Earlier this year, the charity Women’s Aid produced a report documenting reviews of serious cases. They found that between 2005 and 2015, 19 children in 12 families were killed by their fathers who had contact with them and two mothers were also killed. For 12 of the children, contact between the father and the child had been arranged in court. The report identifies serious failings on the part of the courts and statutory agencies: they showed little understanding of domestic violence and of post-separation violence in particular.

In response to this report, MPs in the House of Commons debated the issue of domestic abuse victims in the family courts on Thursday. Unless there is some change, no matter what the outcome of the scenario in the Archers, women and children will continue to be put at risk.

This article originally appeared on The Conversation (theconversation.com). Felicity Kaganas is a reader in law specialising in family and child law at Brunel University London