20 March 2018
Being a family lawyer can be a disadvantage when trying to enjoy a television or radio drama. Family law is easily misunderstood and its realities can get in the way of a good story line; nobody really wants to watch reasonable and calm lawyers helping parties negotiate sensible solutions in an amicable way. Similarly, the idea of having to wait for months for a court hearing is never going to appeal to the writers. So, in order to enjoy these programmes, and to stop us from annoying anyone foolhardy enough to watch with us, we often have to put our professional knowledge to one side.
However, there are many occasions when entertainment can help to educate people about important family law issues. The Rob Titchener story line in the Archers is a great example — it has had an enormous impact on raising awareness of the damage done, and the criminal implications of, controlling and coercive behavior.
More recently, the emphasis has shifted to the differing rights and responsibilities Rob has in relation to the 2 children (one conceived before his relationship with Helen and so not his biologically, although he has acquired parental responsibility through an earlier agreement, and the other a very small baby to whom he is a biological parent.) Although Rob wanted to adopt Henry, he did not do so and so he remains a step parent to him.
Putting aside, the fictitious relevant circumstances of his behavior and whether it would be in a child's best interest to have an ongoing relationship with him, it is interesting to consider whether his biological link to one child means that his rights and responsibilities towards that child are different.
Although Henry is not Rob's biological child, by signing a parental responsibility agreement Rob acquired ‘all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property'. Whilst it is possible to undo the legal implications of the agreement and terminate parental responsibility, it is extremely rare and there would need to be exceptional circumstances. Rob had parental responsibility for Jack/Gideon as soon as he was born because at that time he and Helen were married. (Had they not been married, he would have needed to be included in the birth certificate to obtain parental responsibility). Acquisition of parental responsibility as a step parent is not automatic and there must be agreement between the parents or an order of the court.
In terms of legal status, Rob has parental responsibility for both children.
When it comes to parents, it is not just their legal status that is relevant, but also the level of involvement they have had in the child's life. Baroness Hale spoke about this in the Supreme Court; she referred to social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socializing, educating and protecting.
The way that babies are conceived and families created has changed significantly since the Children Act was brought into force in 1989, and legislators and judges are concerned to ensure that the law develops alongside society. As Lady Justice Black said: ‘Families are formed in different ways these days and the law must attempt to keep up and to respond to developments'.
It is important to note that the courts do recognize the significant role that step parents can and often do play in children's lives, so that on divorce or separation they are not sidelined. When deciding with whom a child should live or spend time with, the court's paramount concern is the welfare of the child, and the court must determine what is in that child's best interests. There is no presumption that it is in a child's best interests to live with a natural parent. However, there is a presumption, that the involvement of both parents in the life of the child will further the child's welfare. This presumption was included in the Children Act in 2014, but does not specifically include step parents. It may be therefore that this is a significant difference — there is a presumption that it is in Jack's best interest for Rob to spend time with him, and in order to rebut that presumption, Helen would have to show that here was a risk of Jack suffering harm if Rob were to be involved in his life. There is no such presumption for Henry.
It will be interesting to see how this story line plays out, but whatever the outcome I am glad that it is has put the issues of different parents and their relationship with their children into the public eye, as it will undoubtedly engender interesting discussions on the subject.
As a final aside, I wonder whether Rob and Helen will consider using the new Child Arbitration Scheme – they may find that it offers them the speedy determinations that would suit their writers' timelines!