Playing Nice: what would happen in real life?
ITV’s latest drama, Playing Nice, is the talk of every office, friendship group and kitchen table. The concept: two couples discover their toddler sons were switched in hospital shortly after their birth. What we see: how these families deal with the horrifying discovery, including a messy legal battle for parental responsibility and a medical negligence claim against the hospital, revelations about domestic abuse, and a heartbreaking insight into post-natal depression.
The likelihood of babies getting swapped is slim, but if it does happen, does Playing Nice do justice to the legal complexities parents would face?
What happens if babies are swapped at birth?
[Spoiler alert] In this ITV psychological drama, the two families face the dilemma of keeping the sons they have raised and believed to be theirs or reclaiming their biological child. Unfortunately, a dispute arose when Theo’s biological parents (Miles and Lucy) applied for parental responsibility for Theo and David (the child they raised). David’s biological parents (Pete and Maddie) fought back, claiming responsibility for both children (Theo, who they raised, and David, their biological son).
Mediation
As shown in Playing Nice, in child law cases like this, the child’s welfare is always the court’s main priority. In the show, both couples attended mediation to try to settle the dispute amicably and without court proceedings. This is accurate; in child custody cases, the court requires both parties to attend a Mediation Information and Assessment Meeting (MIAM) before considering an application to the court. In the show, a MIAM takes place in Miles and Lucy’s home, which is not commonplace; mediation usually takes place in a neutral setting, such as the mediator’s or solicitor’s office. Mediation can also take place online.
In the show, mediation failed and so it was up to a judge to decide where each child should live, and who should gain parental responsibility for both children. Again, this is accurate.
Blog | What is Child Inclusive Mediation?
Court hearings
At the first hearing, the Judge requests a report from a Cafcass (Child and Family Court Advisory and Support Service) advisor. This involved the Cafcass advisor supervising visits between Pete and Maddie, and Theo and David. The Judge also considers a psychological report and the different parenting styles of both parties.
Unfortunately, after an incident during one supervised meeting, the Cafcass advisor recommends that Theo live with Miles and Lucy. The Judge leans heavily on this report when deciding who each child should live with. Cafcass reports are given a lot of weight in child contact proceedings, as CAFACSS officers are deemed experts given their experience. However, the final decision would be made in line with the Children Act 1989 and considering what is best for the child’s welfare, and this is determined by the judge, having heard and read the relevant evidence.
What does the court consider when deciding who a child should live with?
When determining who a child should live with, the court can make a Child Arrangements Order. This sets out who the child(ren) should live with and what contact (time) they should have with a non-resident parent.
The process for applying for a Child Arrangements Order is loosely followed in Playing Nice, with some elements omitted or exaggerated for dramatic effect.
The steps involved when applying for a Child Arrangements Order are:
- Before making an application, the applicant must attend a MIAM. The court requires this form to be signed before an application is issued.
- Either parent can apply for a Child Arrangements Order. The application must include a statement of the issues the parents cannot agree on, an information form if there is a risk of harm to the child, and various other paperwork.
- Cafcass will undertake initial screening checks and will have a telephone interview with both parties. They will then prepare a letter for the court summarising their recommendations as to what steps they feel the court needs to take.
- The court lists an initial attended hearing or an unattended triage hearing. At an initial hearing/triage hearing, the court will review the application and Cafcass letter, hear submissions from the parents (if it’s an attended hearing) and decide on how the case will move forward. by setting a further timetable for further evidence to be filed. The court may request further evidence such as written statements from the parents, expert reports, and letters from schools and a GP. The court will also list a further hearing to consider the additional evidence.
- Once the court has all the evidence it requires to make a final decision, if there is still no agreement, a final hearing will be needed for the court to consider the evidence and make a decision.
What did Playing Nice get wrong?
The programme got most of the legalities around child contact right, and any inconsistencies were likely put in place for dramatic effect. However, some elements would not happen in real life…
Confidentiality
In the programme, confidentiality is broken very early on. Miles visits Pete at their home, having found out about the swap earlier. This is unlikely to happen in real life.
The medical negligence claim
Both sets of parents discuss making a medical negligence claim after discovering the babies were swapped at birth. During a meeting about the claim, Pete is asked questions about what he can remember about the nurse responsible for the swap and whether she put a hospital wristband on the babies’ ankles. In a later episode, the nurse visits Pete and pleads with him to drop the claim.
While Claimants may be asked specific questions about what they can remember, including names of staff members, a medical negligence claim would be made against the NHS Trust or private hospital, not the individual involved. The individual (as well as other professionals involved in the care or who were witnesses at that time) would be interviewed to provide a witness statement for the claim, but it is unlikely that they would be held personally responsible in the context of a clinical negligence claim. Even in small communities, anyone involved in a medical negligence claim such as this (incredibly rare but it has happened) would be advised not to talk to anyone else. It is therefore highly unlikely that the medical professional involved would visit the Claimant to discuss the claim.
It is also interesting that the hospital dispute investigator interviewed Maddie and Pete. Given that they already had a solicitor, they would or should have been asked to speak to their solicitor before having this conversation to determine whether it was in the family’s best interests to attend this meeting, especially given that the clinical negligence litigation would produce statements which could later be disclosed to the hospital Trust giving recollections of what happened.
Further information
Disputes involving children and child contact can be stressful and highly emotional for everyone involved. If you need advice on child contact, our specialist solicitors may be able to help. We will always help and encourage you to reach an agreement through negotiation or mediation, allowing you to avoid court proceedings wherever possible. If proceedings do take place, our lawyers will be with you every step of the way.
For a no-obligation chat with a member of our team, call 0117 325 2929 or fill out our online enquiry form.