Madonna vs Rocco: children’s views must be considered

Family Law|February 3rd 2016

It’s known colloquially as Sod’s Law. Earlier this week I was rushing around London and eventually business all done jumped on a train up north to Yorkshire from where I’ll be busy the rest of the week. Then, shortly after arriving in Harrogate yesterday afternoon I got a call to appear on TV in London. I couldn’t, so instead spoke from the BBC studios in Leeds, being delighted to appear on the Victoria Derbyshire current affairs show on BBC2. Guest host Joanna Gosling spoke to journalist Louise Gannon and I about how divorced parents who live in different countries deal with the question of who should take care of the children.

Pop superstar Madonna is currently at loggerheads with her 15 year-old son Rocco. He wants to remain in the UK with his dad, Snatch and Sherlock Holmes director Guy Ritchie, but she is determined that her son return to live with her in the United States where she obtained a court order for his return. It didn’t happen and now she is over here in England I’m told, seeking a return from the English court.

Disputes over a child’s living arrangements are always tough, both practically and emotionally. This is especially true when the parents live in different countries – or on different continents. The law is complex and made more so depending on which countries are involved when a court order has been made in one country for the return of a child and this has not then taken place. The applicable law in allegations of wrongful retention might be either of two international Hague Conventions (1980 and 1996), complex EU legislation or even the rarely used but very useful wardship proceedings. It all depends which other country is involved.

The court will have to decide if it has jurisdiction to hear the case. If it is a Hague Convention 1996 case – and we only signed up to that one in 2012 – the court will decline and order an immediate return of the child, subject to a few exceptions such as when the child is not given an appropriate hearing before the order is made. The USA has not ratified the 1996 treaty as yet and so a return to the USA in the Madonna case would not be heard under that Convention.

Under the 1980 Hague convention, which could well apply, one of the first considerations to establish is the issue of habitual residence. That is because if the child is found to be habitually resident in England at the time of the alleged wrongful retention then that would mitigate against a finding of wrongful retention here. It wouldn’t be the end of the matter however. As always it would ultimately boil down to the Welfare test, set out in Section 1 of the Children Act 1989.What is in the best interests of the child is the paramount principle and the factors a court would take into account are also set out in that section.

Habitual residence is a tricky concept and can in cases involving older children boil down to their state of mind. Where do they think they are habitually resident? Even so, a judge could still decide that a return to the other country is in that child’s best interests when considering a child’s future.

Naturally, as children get older they want more say in their own lives, so their views become increasingly important. In this case, the boy is 15. He can object to a return under the 1980 Hague Convention and he would be able to instruct his own lawyers to tell the court what he wants. Let’s also not forget that, at the end of the day, whatever the outcome, it is inconceivable the Court would send him kicking and screaming back to the USA, especially since the Hague Convention applies to children under 16 and he will be 16 this August.

Personally I think this is exactly the kind of situation which should not be decided in front of a judge. I dislike any publicity in these kinds of cases. I can completely sympathise with Madonna’s desire to have her son back, but taking a patently unhappy and discontented 15 year-old to court will not do her any favours in the long run. Teenagers think in the here and now. Both parents are able to afford regular flights, so while a transcontinental relationship between a mother and son and father is not ideal, it is doable.

Trying to force a teenager to live with one parent is only going to cause resentment. There are many ways of handling troublesome teens as all parents can testify. Teenage problems flare up when hormones rage and if nipped in the bud and handled with sensitivity and foresight can be solved without irreparable damage to their relationship.

The best course of action here is I think for both parents to listen to their son’s views and try to incorporate them into an agreement that all three of them can get on board with. It’s isn’t easy, of course it isn’t, but whoever said parenting is ever easy?

The full interview is available on the BBC iPlayer. My segment begins at 01:29:00. Watch it here.

 

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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