Here is a story, based on reality. Esti is a Charedi woman, a member of a small, tight-knit group at the very religious end of Judaism. The mother of three children, she is left by her husband Yossi. After separation he becomes less observant, letting the children watch television and buying a non-Kosher birthday cake, both things forbidden.  Esti is distressed: the children have started to be shunned by other families. She turns to the secular courts for an order under s8 Children Act that Yossi not change the children to a co-educational school, and to regulate the time they spend with their father. The hearing is fraught. Yossi is in person, like many litigants. His cross-examination of Esti descends into argument. It becomes about who is a good parent. Other issues appear around the edges: is this about his new relationship? Is it about the mother’s beliefs that young children should be with their father? Is there any possibility of a fair outcome when one party is represented and one party is not? And are all high court judges so grumpy?

This is the plot of an episode of Behind Closed Doors, a series of legal dramas on BBC Radio 4. Written by Clara Glynn, these are in docu-dramas: each one illustrates a real legal issue. In the episode broadcast on 14 January, ‘Best Interests’, family lawyers will already recognise the influence of two important cases:

  1. Re G [2012] EWCA Civ 1233 which concerned a Chasidic father and a mother who, post-separation became Orthodox, which is a less strict form of Judaism, and their arguments over whether the children should go to an Orthodox or Chasidic school. The case was resolved (with one of my favourite judgments by Munby P) on the basis that what was best for the children was to give them the greatest opportunities to fulfil their potential. This meant an Orthodox school with career aspirations; if the children chose later to become more observant they could, but with a Chasidic school they would not receive recognised qualifications and the expectation of girls was a life of homemaking, so their options outside the Chasidic world would be fewer.
  2. J v B and the Children (UltraOrthodox Judaism: Transgender) [2017] EWFC 4, known on appeal as Re M [2017] EWCA Civ 2164, in which the father, who left the Charedi community to transition to female. She sought to spend time with her children, but the evidence was that the children would be shunned in their communities if this happened. Was it in their best interests to continue to know their father or continue in their community, it becoming clear this week that there was no middle ground?

These two cases involved the courts in tricky determinations that are heavily fact-specific. It’s not about the judge’s religious preferences, says the mother’s barrister in the drama. It’s about what’s best for the children.   This involves, however, a selection between two ways of living. As a religious leader testifies, the community is concerned about ‘contamination from the outside world’. Why, asks Yossi, should a community shun a family when it is so concerned to keep the children close? What if one of the children turns out to be gay? What if one of the girls wants a professional career? But why should the father seek to change the children’s lives from the way he agreed to raise them? How can it be in their best interests to lose a community on which they so completely rely? And what do the children themselves want? Not present in court, their views are filtered through the parents and the Cafcass officer. 

As Ian McEwan discovered over a Children Act-inspiring dinner with family judge Sir Alan Ward, judges are often engaged in deeply complicated cases. Best interests are, after all, amorphous and contingent, and the stakes – children’s whole futures – can be very high.  Given this, I would have liked to know why the judge decided as he did – what, for him, best interests looked like in the context of this case, rather than just what order he made. But it takes a brave writer to enter this arena, and it is no small achievement to digest real cases, and dramatize them both fairly and accurately as Clara Glynn has done. Given that children hearings are held behind closed doors, dramas that shine an accurate a light on what happens serve a valuable role. 

Behind Closed Doors is on BBC iplayer. The series continues.

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Feature pic: worlds apart by Yosef Silver on Flickr – thanks