I watched the BBC’s new Silent Witness last night. Whilst I marvelled at what the team of forensic pathologists and scientists could do with a tiny piece of evidence I despaired at the TV family Court room scenes depicting a barrister representing a father in a ‘’custody’’ battle.
No doubt those with physics degrees will question some of the science screen writing and the speed in which DNA results are obtained and the villain captured. However as a family lawyer I focussed on the accuracy of the family Court room scenes. One of the victims, a barrister, was arguing for ‘’joint custody’’ for his client as he ‘‘deserved’’ it. The screen writing made me sit up as it has been many years since the legal concept of ‘’custody’’ has been abolished.
Child custody orders stopped being made in the late 1980s and were replaced with what were called ‘’residence’’ and ‘’contact’’ orders. Family law doesn’t stand still and to move with the times children law was changed again to introduce ‘’children arrangement’’ orders.
Does it really matter what orders are called on TV entertainment programmes? I think it does. So often parents and other relatives get their ideas about what will happen if they split up from their partner from the TV screen. I often see parents whose first concern is rightly their children and whose priority is to get ‘’custody’’. My job as their solicitor is to dispel the TV and internet myths and explain that in 2018 there is no such thing as a family Court order awarding ‘‘custody’’ to one parent and that nowadays it is unusual to have to go to Court to sort out the living arrangements for children.
Most of us trust the BBC and some of us believe what we read on the internet. So it can sometimes be hard to explain why I, as a specialist children lawyer, don’t want to start unnecessary and expensive Court proceedings. Don’t get me wrong, there are times when I urge immediate Court action, for example when there are concerns about child abduction or if one parent is refusing to agree to the other parent spending a reasonable amount of time with their child.
If Court proceedings do have to be started then the family Court judge will decide what the living arrangements for the child or children should be based on what he or she perceives the child’s best interests are. The judge has to consider a ‘’welfare checklist’ when coming to his or her decision. That checklist includes factors such as the child’s wishes, the child’s needs and the parent’s capabilities as a parent. The one factor that the family Court ignores is what the parent ‘’deserves’’. Yes, parents have rights but judges’ base their Court decisions on what the child ‘’deserves ‘’ and needs rather than making Court decisions focussed on what the parent needs.
Judges start from the premise that children need or deserve to have a relationship with both of their parents and so what the parent deserves and the child needs can be one and the same thing, depending on individual family circumstances.
The other common myth in children law is that if the family Court makes a ‘’joint custody’’ or nowadays a child arrangements order the child or children will spend exactly the same amount of time with each parent, splitting their time between the two households. That isn’t true either. Although most parents have the same legal rights over their child (called ‘’parental responsibility’’) the Court can make a child arrangements order that results in a child spending more or even most of their time with one parent. That isn’t always the case as decisions are based on individual children’s needs and family circumstances , such as the practicality of the child’s daily commute to school from both parent’s homes.
Will I watch Silent Witness again next week? Of course, as I love being impressed by the scientific know how and how each plot is neatly resolved in a two hour slot. I suspect those with science degrees may struggle to watch the plot but ignorance is bliss until it comes to the TV family Court scenes.
For advice about any aspect of children law please call me on +44 (0) 1477 464020 or email me at [email protected]