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Child arrangements after separation – a sticky subject

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Formalising child arrangements including where a child shall live after parents separate can be a sticky subject as the recently publicised case involving Madonna, Guy Ritchie and their 15 year old son Rocco shows.

What happened in that case?

Following the parties’ separation, they agreed that Rocco would live with Madonna in America and spend time with Guy in England. This agreement was reportedly included in a Consent Order approved by the English court and registered with the New York court to make it enforceable there also. Problems arose during a planned visit to England in late 2015 when Rocco decided that he did not want to return to live with Madonna and instead wanted to stay in England with Guy.

Madonna and Guy followed family law protocol and attended mediation along with Rocco himself - it is now becoming more common for children to be involved in mediation through direct child consultation. But unfortunately the parties were unable to reach an agreement which led to Madonna lodging an application in the English courts under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’) seeking Rocco’s return.

During a hearing in December 2015, Rocco was joined as a party to the English proceedings. This is quite unusual but is possible if the judge can be persuaded that it is necessary. In this case, persuasive factors were that at the time of the hearing Rocco had been instructing his own lawyers for a number of weeks and they considered him to be sufficiently mature and intelligent to be able to give instructions – this is not surprising given that he is 15 years old and the Convention only covers children up to the age of 16. The judge also seemed to be persuaded due to his personal opinion that one of Rocco’s lawyers was well regarded.

Madonna had also issued proceedings in New York. At a hearing in December 2015 the judge directed that Rocco return to America to her but Rocco failed to comply with this order.  

A final hearing under the Convention took place in England in March 2016. By this point the American courts had claimed jurisdiction for the matter generally meaning that the English courts no longer had the authority to make a decision on the substantive issue of where Rocco should live.

So what was the purpose of the hearing that has been in the press?

For Madonna it was to withdraw her Convention proceedings and seek Rocco’s return pursuant to the order made in America. Unsurprisingly, Guy opposed this, putting forward the position that Madonna required court permission to withdraw her application and seeking some procedural directions which Rocco himself also sought.

What was the outcome?

The judge decided that:

  1. An applicant who wishes to withdraw proceedings under the Convention requires the court’s permission to do so, and he therefore gave Madonna such permission;
  2. In a case which concerns the welfare and upbringing of a child the test will be the standard ‘welfare principle’ set out in section 1(1)Children Act 1989;
  3. In a case which doesn’t concern the welfare and upbringing of a child, the test will be in line with the ‘overriding objective’ which includes things like dealing with cases expeditiously, fairly, and proportionately; and
  4. It was not appropriate to make any procedural directions save to reserve any future applications in England to himself so that there is judicial continuity.

This is perhaps less exciting than the press coverage seemed to suggest but it is helpful guidance for lawyers and clients who may find themselves in a similar situation.

Observations

In Madonna’s case the sticky issue of where a child should live is clearly aggravated by Madonna and Guy living in different countries – with her being based in America and Guy in England. That said, this is not just an issue for celebrities, it can be an issue for people from all walks of life, particularly those who have moved to England for the purpose of pursuing a relationship then want to return home following separation.

Undoubtedly the international element does add pressure to the situation as the ‘non-resident parent’ will not be given the opportunity to spend the same amount of time with the child as s/he would if they were to live within close proximity of one another; weekly visits will most likely be replaced with school holiday contact which is much less frequent.  

What can be done to try to prevent issues arising about arrangements for children following separation?

At the time when parents separate, it would be helpful for discussions to take place to see if an agreement can be reached between themselves. If they can, this can be documented in either an informal Parenting Plan or a more formal Consent Order which will be submitted to the court and hopefully approved by a judge to become a legally binding court order – this is the document Madonna and Guy Ritchie had. However, if an agreement cannot be reached at the time of separation, court proceedings are an option. Typically there will be 3 hearings and at the third, after hearing and reading all of the evidence a judge will decide the outcome.

Final thoughts

Usually having a court order in place prevents issues like Madonna has experienced occurring but ultimately nothing can stop children ‘voting with their feet’ as they mature. For this reason, it is quite unusual that court applications are made in respect of a child of 15 like Rocco.

If you have separated from your partner and would like advice about arrangements for your child(ren), please do not hesitate to contact me on 0113 336 3323 or via email justine.osmotherley@clarionsolicitors.com
 

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