Talking Madonna and Rocco on ITV This Morning

Family Law|March 22nd 2016

Earlier today, I returned to the ITV This Morning studios, to discuss the latest twist in Madonna’s struggle with ex-husband Guy Ritchie over  the future of their now teenage son Rocco. He has announced that he wishes to stay in England with his father.

Presenters Phillip Schofield and Holly Willoughby asked me for my thoughts after a High Court judge urged the famous couple to come to an “amicable resolution” .

The pop superstar and her filmmaker ex-husband have been involved in legal proceedings since their 15 year-old son Rocco visited his father in London last year. At the end of his visit he refused to return to his mother in the United States. In response, Madonna launched a legal bid to get him back. Then, in February this year, the Court made Rocco himself a party to the ongoing proceedings because of his age and maturity. He was adamant in his refusal to go back, preferring to stay with his father. He has made his views known not only in the English courts but also in the United States where he also has lawyers.

Unsurprisingly, the case has received a lot of attention from the national media. However, regular readers of this blog will know that international disputes involving children are sadly rather commonplace. Mr Justice MacDonald said as much at the Royal Courts of Justice. When all of the celebrity aspects have been stripped away, the central issue was “born out of circumstances that arise for countless separated parents the world over”.

The judge added that the courtroom “should always be the option of very last resort when parents cannot agree matters in respect of their children” because while it may offer the means to resolve such disputes, it was “a blunt instrument when compared to the nuanced virtues of calm discussion and considered compromise between those involved”.

He pleaded with the parents to “find an amicable resolution to the dispute between them”. It would be a “very great tragedy” if any more of the “precious and fast receding days of [Rocco’s] childhood were to be taken up by this dispute”, Mr Justice MacDonald said.

The comments came in a judgment in response to Madonna’s application to withdraw her application for Rocco’s return under the Hague Convention on the Civil Aspects of International Child Abduction. The High Court had to decide if the Family Procedure Rules (FPR) 2010 applied to Hague Convention cases. Rule 29 of the FPR states that in family law cases, “an application may only be withdrawn with the permission of the court”.

Whilst not opposing the withdrawal, both father and son sought further directions from the court in the event that Madonna chooses to apply to the English courts again. Suppose for example the US court ordered his return and he again refused to go. Mr Justice MacDonald granted her application to withdraw because compelling her to continue with these proceedings “would not serve the ends of justice”. He said that as the case was also being heard in a New York court, continuing them in England would create “unnecessary and unhelpful complexity” which would make a resolution more difficult. He added that he thought no further orders would be necessary except the return of Rocco’s passport which would allow him to travel at Easter. The judge warned Madonna’s lawyers that any further application should be made on notice and should be heard by him.

As to the correct court to hear this case, for the time being that remains the one in New York where this sorry raft of proceedings began. However, I note on behalf of Rocco his position as to jurisdiction was reserved, and his habitual residence in England is not yet conceded. So that remains a defence for him to argue should the New York judge decide he should return to the US.

But so far it seems that the New York judge hearing the case is pretty much commenting in line with what is happening on the ground in England. She has declined to issue a warrant for the arrest of Guy Ritchie and has not ordered Rocco to be removed from his English school.

Yesterday, I spoke to a top New York based lawyer about the case on the other side of the Atlantic She told me their system, like ours, is based on the best interests of the child. We call it the ‘Welfare Test’ – the best interests of the child are the courts’ paramount concern. She said that what he wants will carry greater weight the older and more mature he is.

As I said the last time I was asked about this case, this dreadful case really should not be decided in front of a judge. With that in mind, it is good to see the English side of proceedings come to an end albeit only for the time being. Rocco has told judges both here and in New York that the last thing he wants is further litigation in any court.

But I’m not sure I would put money on it not coming back – it still might if the Judge decides Rocco should go back to the States to finish school. How that would work in practice could well be a nightmare prison sentence to a mature teenager who has determined he does not wish to return. It could be that Rocco might even end up becoming a Ward of Court over here and the court effectively takes custody until he is 18.

Parents, famous and non-famous parents, who may also be going through similar situations, must give teenagers a little leeway. They are full of hormones and in the process of maturing. Coming down too hard on them may cause more problems, so a calm and sensible approach is always best, however distraught the parents themselves may be feeling.

The High Court judgment is available in full online. Read 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.

Comments(4)

  1. JamesB says:

    Having been in this position myself, I think the important thing for the parents to realise is that there are three people here. Madonna especially needs to recognise that.

    The question is how to balance the needs of the child with the demands of the parents when the parents cannot agree. The answer has to be what the child wants. That’s what happened to me and I didn’t see my mother for ten years. That was different to this as she was (perhaps) not having the ability to mother that Madonna has.

    As a parent, letting go can be hard, a lot of kids live at home until their thirties and are mollycuddled and that is not good for them either. If you love someone set them free, if they come back they are yours forever, if not then they were never yours to keep, or something like that.

    I am going through something similar with my daughter at the moment and weekends being booked up and not seeing her and not having a summer holiday with them as they are at camps and my ex wants them and I am faced with trying to enforce the contact order or not which gives me 3 weeks rather than the 3 days my ex is offering. I think I have to let them go for their sakes.

    They know how to come to me if they want to. It is a bit of an emotional subject. Its the thing in the bible again and judgement of Solomon, the true parent lets the child be brought up by the other rather than be ripped in half. I have to believe that when the children grow up they will gain a fair appreciation of me and I will be happy with how they turn our and I try my best towards that.

    All of that said, the fact remains had I the money I think my son would be better off living with me and my daughter with my ex as my son recently said he would like that but my place isn’t as nice as theirs as I got stitched up in the divorce.

    I try to be involved as much as possible, but it is difficult when there is a new partner who isn’t conciliatory and ex who can’t communicate.

    For my children, it may be that I have to drift away. That said if that happens I take pride in who they are and the time we spent together and that can’t be taken away. I prefer that then hanging on to a damaged child damaging them further. I still will not slag off my ex to them although she and partner do me.

    I do know couples who have managed to remain friends following divorce and who manage to bring up children well and balanced and without expectations of them getting back together. I have also known children being disturbed by their parents arguing. It has to be as the Judge said better to sort things calmly head to head or through mediation rather than force or court.

    Basically you have to stop fighting unless the ex is very bad parent. That said I am not an international star with zillions and is perhaps a different planet with them able to afford counsellors and minders each week etc. but probably isn’t that dissimilar. Jon Voigt and Angelina Jolie have similar (not seeing each other) issues. Perhaps its a male female thing that the girl sides with the mother and the boy the father. With regards to taking sides, I do not believe it is necessary but perhaps very likely in the long term with divorce, say 60% in an acrimonious divorce.

    My thought on this is that the argument they have been having recently on this was perhaps reasonable and appropriate to the age of 12 to support them by leading them and parenting them by mother and father and that is better until then, however over that I think you have to respect the wishes of the child and support them.

  2. Karen says:

    With all these different articles, it has never been explained why it is Rocco doesn’t want to live with his mother but wants to live with his father? For me to determine what is in the best interests of the child, you would have to know what the reason is. (Maybe that is being sealed by the Court?)
    So it’s hard to comment on something when you don’t know all the facts. Because from what I’ve seen up until a couple of months ago, Rocco seemed quite happy living with his mother and even performing with her.
    I don’t know if it should be solely left up to the child even if they are 15. Children are immature by nature and may not know what is best for them. The child’s wants should be taken into account but I don’t know if they should have the only input.

    In my opinion, unless there is some type of physical or emotional abuse or alcohol and drug addiction involved which doesn’t seem be the case here, it is always in the best interests of a child to have relationships and contact with both of their parents. No that may be difficult when they are living in two different countries and both Madonna and Guy have other children so that makes it kind of hard for them to up and move to a different country without disturbing the education of their other children.

    No one has talked about the interests of Rocco’s siblings. What about Lourdes, Mercy and David. Isn’t in their best interest to have Rocco in their lives since he is their brother and they mostly grew up together. So him living with his father also affects their interests not just Madonna. So actually there are more than three people involved here.

    • Marilyn Stowe says:

      Dear Karen
      You are spot on. There is a hefty reporting restriction in place so none of those issues have been published. So all I could do and comment upon is read what has been published. What I noticed from reading both English judgements is the extent of Rocco’s involvement in deciding his future, that he has made it crystal clear to both courts in England USA what he wants namely an end to all litigation and the comments of the English judge he is mature, articulate and reflective. I came to the conclusion that far from it being his parents who are running the show, it’s him. That’s unsurprising he is their son and has lived a life unlike any of us would ever do and he’s still only 15. And although we don’t know the facts, but presumably having impressed the Judge so much here, there must be good reason for what he has chosen to do. But we don’t know.
      So all that being the case I think and said, he should be given space and respect for what he wants to do. He seems to have made great efforts to mediate through his siblings but for some reason it’s all hit a brick wall and if this case is heard in the US and an order for his return is made then the English court is looking at enforcing a nuclear option as far as he is concerned.
      That these judgements have been published at all in a non anonymised form is highly unusual but as the Judge said, this is a highly unusual case.
      At the end of the day however, Rocco’s dearest wish is to stop the litigation and at the age he is, and given the assessment of him by the Judge and his comments, Rocco is clearly a credit to both his parents but is fast losing his childhood, so no wonder both Judges have reached the same preliminary conclusion this is not a matter for the courts it’s a matter for them all to sort out. Litigation is the last resort but as far as I can see litigation is not going to sort this out anyhow. They need to reach an agreement.
      I wonder if they’ve seen trained family therapists rather than lawyers?
      Regards
      Marilyn

  3. Luke says:

    This is truly ridiculous – he’s FIFTEEN and less than 5 months from the age and at which you can marry and have children in the UK !
    .
    Any Judge that would imprison him for choosing the ‘wrong’ parent to live with at 15 should be sacked immediately for having no ‘judge’ment…

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