With the BBC1 prime time drama series concluding on Monday evening with what some viewers considered to be a shock outcome that mother Marie was awarded primary care of her children by the Family Judge dealing with their case, despite the fact that she had walked out on her family over a year earlier, Clare Curran, Partner in Charge of Family Law here at Worthingtons Solicitors takes a look at what parts of the drama are true to life and what parts are pure tv fiction!
Would there be a nasty contested hearing like that seen in the final episode?
Some aspects of the case were true to life, such as the children being interviewed by the Court Children’s Officer and welfare checks being undertaken to ascertain any risks to the children, but the majority of disputes over where children live actually resolve by agreement between the parties at some stage during the court process. If a case does have to be contested in front of a Judge, it is unlikely that questions relating to historical post-natal depression or lying about vasectomies would be considered hugely relevant to the issues in the case. Family proceedings should be conducted in an inquisitorial manner, as opposed to the adversarial approach we saw on tv. It is more likely that the Judge, the lawyers and the Court Children’s Officer would focus on issues relating to what is in the children’s best interests now, with particular reference being made to the parents’ respective abilities to provide safe and appropriate parenting of the children and taking in to account their own wishes and feelings in line with their age and understanding. None of that was really explored in the final hearing in the last episode and the voice of the children was noticeably absent, which in real life has to be at the forefront of everyone’s minds, but perhaps that does not make for as good a tv drama!
Would Marie’s mum and Greg’s girlfriend Brenna be allowed to sit in court and listen to the case?
No, family cases of this nature are conducted in private and only the parties to the proceedings would be allowed in to court to hear all the evidence. They may be called as witnesses if they have something of particular relevance on which they could give evidence to the court but they would not be permitted to sit and listen to the other parties in the case give evidence.
Would the children be interviewed by the Court Children’s Officer?
Yes, it frequently happens in cases of this nature, that where the children are of sufficient age and understanding they will be spoken to about their views, fears, concerns and hopes and what they say and how that is interpreted is then conveyed back to the court by the CCO, who is a trained social worker appointed to advise the court. It is normally their job to make a recommendation to the court, having met with the parents and where appropriate the children or other relevant people in the case, and this is usually very helpful in focusing the parties on what is in the children’s best interests and what the best outcome for the children may be. The Judge does not, as in this case, have to share the view of the CCO who could be called to give evidence and asked questions as to what was said in their interviews and how they reached their recommendations. Ultimately the decision lies with the court as to what should happen if the parties cannot reach an agreement.
Would a real Judge have come to the same conclusion as the Judge in the programme that the children should go to live with their mother?
That is a more difficult question to answer without knowing everything that was reported to the CCO and all the evidence that was given in the case and indeed without hearing a reasoned judgement being given, which would happen in real life. Laura’s views would be a very persuasive factor in the case given her age and level of understanding about what was going on and we heard her say that she wanted to live with her mum, but she also has a very positive and loving relationship with Greg, who she always understood to be her dad, so I think she would be very much encouraged to maintain her significant relationships with both, despite the fact that Greg transpired to not be her natural father. The younger daughter Darcy’s needs are different but she requires a nurturing and stable home too. If there were no real concerns about either parent being able to provide that stability, and on the basis of what we heard in the show, it is possibly unlikely that a Judge would simply transfer residence from dad to mum given he has been their primary carer for the past year. Any court has to make a decision based on what is in the individual child’s best interests so both girls would be treated as individuals but again the court would be reluctant to separate siblings who have a close and loving bond. It may be more likely that a Judge would have granted a shared care arrangement (known as a Joint Residence Order) which is ultimately what both parents seemed to agree was the best outcome for the children.
Clare Curran is Partner in Charge of the Family Law Department at Worthingtons Solicitors and can be contacted on firstname.lastname@example.org or telephone 028 91811538 to confidentially discuss any query of a family law nature.