Posted on 9.3.16
It was reported last week that well-known Material Girl singer, Madonna, and ex-husband Lock Stock filmmaker, Guy Ritchie were embroiled in a bitter custody battle over their 15-year-old son.
A Court Order in the United States stipulated that Rocco would spend Christmas 2015 with Madonna in New York, however the 15 year old defied the Order when he left his mother’s world tour to fly to London to be with his father and step-mother, English model, Jacqui Ainsley. When discussions broke down between Madonna and Ritchie, the Holiday singer applied to the Manhattan Court which dealt with the custody arrangements following their divorce in 2008. The Judge ordered that Rocco should return to the US, and Madonna sought to rely upon the Hague Convention, a treaty used to provide the quick return of a child who has been abducted, but Ritchie’s legal team defended Rocco’s right to make his own decisions.
The parties’ son has expressed clearly that he does not wish to return to live in New York and is happily attending school in London, where he wishes to remain. Last week a new application was made in the Family Division of the High Court with the Judge urging the parties to settle their differences.
This case is obviously complicated by the fact it involves different jurisdictions, England and the United States, however whichever jurisdiction is involved, it is always preferable for parents to reach an agreement between themselves as to child arrangements (which has been mistakenly reported as a “custody battle”), either through family mediation or solicitor correspondence, rather than having a decision imposed upon them by the Courts. The English Courts utilise “no order” and “non-intervention” principles where they will not make an order and will not intervene unless it is in the child’s best interests to do so, in an attempt to encourage parents to work together to resolve any dispute.
If parents cannot resolve matters between themselves then they will have to go through the Courts, which is the position Madonna and Guy Ritchie have found themselves in after weeks of stalemate negotiations. The Court’s paramount consideration is always the welfare of any child and so they will have regard to the ‘welfare checklist’ as set out in legislation and below, before reaching any decision in a case:
- The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
- His physical, emotional and educational needs;
- The likely effect on him of any change in his circumstances;
- His age, sex, background and any characteristics of his which the court considers relevant;
- Any harm which he has suffered or is at risk of suffering;
- How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
- The range of powers available to the court under this Act in the proceedings in question.
The older the child is, the more weight that is given to the child’s wishes and feelings as to where he or she wants to live. With a child of Rocco’s age, his wishes and feelings are likely to be fairly determinative of any dispute under English law, which is why I suspect Justice Kaplan decided to allow Rocco to remain in the UK with his father. Furthermore, an English Court will only vary or discharge an existing order, in respect of a child who has reached the age of 16, unless the circumstances of the case are exceptional. This is in contrast to the US Courts where parents retain greater controls over their children until they are 18.
Sometimes parents can be clouded by their own thoughts and feelings and fail to take into account what child actually needs or wants, for instance reports claim Madonna has accepted she has “lost” Rocco to her ex-husband and is devastated by this. As a family lawyer it is incredibly difficult to read such comments, as when children are involved it should never be phrased as “winning” or “losing” and should be looked at in terms of what is in the child’s best interests not the parents’!