Reflections on The Split - S2, E1: The Defoes are back – affairs, prenups and pregnancies
A ‘round table meeting’ is often a useful way of opening up a constructive dialogue, helping to identify the key issues between separated parents or divorcing couples. It is just one tool in an array of methods of dispute resolution that family lawyers should consider deploying in order to help their clients find common ground and reach agreement. Mediation, where a third party mediator facilitates discussions between partners in an attempt to reach agreement, is, in the right case, also very useful. In cases involving high profile couples such as Fi and Richie, mediation can be particularly useful as it often leads to a resolution being achieved in private and without the need to issue court proceedings. Where there is a history of abusive, coercive or controlling behaviour, however, as Hannah thinks there may have been in Fi and Richie’s relationship, thought does need to be given as to whether mediation is appropriate and if so, how it can be done safely.
Unfortunately, in this case, the meeting between Fi and Richie doesn’t go well and Richie’s team leaves with the words “see you in court” echoing around the room.
If Fi and Richie are unable to agree how the children should split their time, then it is open to one of them to make an application for a Child Arrangements Order, as referenced by Richie’s lawyer Melanie. A judge will then ultimately determine where the children are going to live and who they are going to spend time with. In making a decision in respect of this, the children’s welfare is the paramount consideration.
Richie’s view is that the children should spend 50% of their time with him. Fi on the other hand thinks that they should live with her and spend time with Richie every third weekend. There is no presumption that parents will share a child’s care equally but there is a presumption that it is in a child’s best interests to have a relationship with each parent where it is safe to do so. There is no right answer in Fi and Richie’s case as every family and every child is different. If both parents can provide safe and appropriate care and are available to do so, there is no reason on the face of it why a judge wouldn’t aim to ensure that the children spend a good amount of quality time with both parents. However, there are a number of factors which are considered as part of the assessment of the child’s welfare, including:
Following the threat of court proceedings at the end of the round table meeting, Hannah rightly advises Fi that she needs to know everything about her relationship with Richie so that they can be properly prepared. Fi discloses that she and Richie filmed an explicit tape with their nanny and the lawyers consider whether to take out an injunction to stop it being leaked. Fi also discloses that both she and Richie have taken cocaine.
The impact of the explicit tape in Fi and Richie’s case will in reality probably be limited in relation to the children’s arrangements. However, private matters that are not directly related to the children’s arrangements do have a habit of spilling out in to the open during proceedings, even more so when one or both parties are public figures. Injunctions can be a useful tool to restrain one party or a third party from publishing private information. Our Dispute Resolution team’s FAQs about injunctions and blog about revenge porn explain some of these issues in greater detail.
The reference to drug use would be more concerning to a family lawyer as this would be a factor that a judge would consider when evaluating whether a parent is capable of looking after a child and meeting their needs. Hannah would therefore need more information from Fi about the extent of both her and Richie’s drug usage in order to advise on the possible implications.
Episode 4 also gave us a small insight into the diverse work of a family lawyer when a couple who are seeking to adopt a child meet with Hannah and Nina for advice. Steph and Ian Gibson are in the middle of the adoption process and meet to discuss the next stages. Adoption, along with advising clients in respect of surrogacy and alternative routes to parenthood, is an important aspect of family law work.
There are a number of ways to adopt in the UK including adopting a child who is living in the UK or abroad. It is particularly important when considering adopting a child from abroad to take advice, either from a specialist adoption agency or a lawyer, as it is a criminal offence to bring a child into this country for the purposes of adoption without following specific processes. Our immigration team regularly advises clients on the immigration aspects of international adoption and more information about this can be found here.
Steph and Ian are adopting a child within the UK and have already registered with an adoption agency and been positively assessed by a social worker. They are due to meet with an independent panel of experts who will ultimately decide whether they are the right fit for the child that they have been provisionally matched with, Mia. If the matching panel goes well, the next stage would be for Mia to meet and ultimately move in with the Gibsons who could then, after a period of at least 10 weeks, make an application to formally adopt her. If an adoption order is made, the Gibsons would be Mia’s legal parents and her biological parents would no longer have parental responsibility and therefore would not be able to make decisions about her upbringing.
Hannah flags in the meeting that a distant cousin in Mia’s family is raising concerns about the adoption process. As when dealing with a child arrangements order, a judge dealing with adoption matters has to have the child’s welfare at the forefront of their mind. The consent of a child’s biological parents is required in order to make an adoption order or, alternatively, the court can dispense with the need for parental consent and make the order if they decide that it is in the child’s best interests. Only individuals with parental responsibility are required to consent (i.e. always a child’s mother and generally also a child’s biological father) and therefore the fact that a distant cousin has raised concerns does not necessarily mean that an adoption can’t take place. However, the fact that a family member may be willing to care for Mia is a factor that a judge would have to weigh into their decision making.
Steph and Ian are both Olympic athletes and have an upcoming training camp in Portugal. They suggest that they could take Mia with them but Hannah advises that they should consider alternative options as this would raise questions about their ability to provide stability during the important initial period when Mia is placed in their care. This is particularly important where a child has been in foster care for some time and needs to be reassured as to the permanence of their adoptive placement. Ultimately, the Gibsons cannot agree who should stay behind and Hannah is frustrated by their failure to prioritise Mia’s interests.
We await the next instalments of The Split with anticipation to see how these storylines further develop.
If you would like to speak to a member of our family team about any of the issues raised in this blog or through storylines featured in The Split, please contact a member of our team or call us on +44 (0)20 7814 1200. Alternatively, click here to get started online and find out where you stand.
You may also be interested in reading our previous blogs with our reflections on the earlier episodes of The Split.
Connie Atkinson, a Senior Associate in our family and divorce team, has been one of the legal advisers on the script of The Split, series 1 and 2.
Sarah Dodds is an Associate in Kingsley Napley’s family and divorce team, where she specialises in complex divorce and financial work as well as private children cases. Her practice includes all aspects of private family work and the majority of her clients have international connections. Sarah specialises in divorce and matrimonial finance disputes, including in particular those which contain complex pension issues. She also regularly deals with high conflict cases relating to children’s arrangements and financial provision for children, including international and domestic relocations and child abduction. Sarah has a particular interest in adoption and surrogacy matters and regularly advises parents who wish to apply for parental orders following the birth of their child.
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