Lawyers examine a celebrity case to cut through the media razzmatazz to explore the serious implications concerning cross-border marital disputes concerning children.

A high-profile legal cases involving child custody matters is that pitting pop entertainer Madonna against her former husband, Guy Ritchie. The issue concerns their son, Rocco. The case, while it may excite interest for no other reason than being about celebrities, has broader implications, including for those working as private client advisors working with wealthy families. Miranda Green and Sarah Duckworth, partners at Mundays, the law firm, consider this case and its broader relevance. The views expressed here are those of the authors and not necessarily shared by the editors of this publication. We invite readers to respond.

We have been waiting for the latest instalment in the Madonna and Guy Ritchie court “battle” over son Rocco not just as family lawyers but because we all love a bit of celebrity gossip. We now hear that Madonna has dropped her case along with a heartfelt plea from Mr Justice MacDonald for the parties to enjoy the last precious days of Rocco’s childhood and pointing out that the law was a “blunt instrument when compared to the nuanced virtues of calm discussion and considered compromise between those involved.”

In our view this is a case that was misconceived at the outset. Rocco is a young adult, nearly 16 (when the English court would not make any orders in respect of him) and he was expressing what he wanted to happen by voting with his feet. The judge said “far better for each of his parents to spend that time enjoying, in turn, the company of the mature, articulate and reflective young man who is their son and who is a very great credit to them both”. All too often however the voice of the child becomes lost in emotional landscape between the adults, perhaps particularly more so when dealing with international child cases because it is often necessary to act quickly and there is not time for considered reflection.

The application that Madonna had made in England was under the Hague Convention on Child Abduction. When Rocco failed to return to his mum her lawyers, quite appropriately, would have given her advice to consider an application under the Hague Convention where the court has an obligation to order the immediate return of a child to the country of residence and so that the local court can determine the issues. In this case common sense has hopefully prevailed in the end but such an application can be a protective measure to preserve the status quo until sensible negotiations can ensue or the local court can make an informed decision.

When the children are younger and we are dealing with a genuine cross border child snatching case, it is essential to act without delay and to understand the legal issues as this is a complex area.  Equally it is important to know that any international travel with children has to be undertaken carefully even for a holiday. It is a criminal offence under the Child Abduction Act to take a child out of the jurisdiction of England and Wales without the permission of the other parent if they have Parental Responsibility for a child - this applies to all parents save for unmarried fathers who have not been named on a child’s birth certificate. In our experience, people are often completely unaware of these points and it is essential for people to take legal advice when they separate.

However, if in this Country a parent has a Residence Order, now a Child Arrangements Order, they are not prevented from taking a child out of the Country temporarily for less than one month at a time.  
Another example where problems have been caused recently is that South Africa has introduced new stringent immigration requirements for people travelling with a child to include written consent in the form of an Affidavit from any parent named on a child’s birth certificate who are not travelling with the child.   

In this world of increasing global movement it is reassuring that there are safeguards and an international statutory framework but a number of countries are not signatories to the Hague Convention such as India and the majority of countries which operate Sharia law. 

A reported case this week involved a Malaysian mother who wanted to take the children back to Malaysia for the purposes of attending a family wedding in the face of the father’s objection where Malaysia is a non- signatory country.  The mother was ordered to lodge security of £5,000 ($7,161) to cover the father’s legal costs should she fail to return. 

Another difficult area of the law is with international relocation cases where a parent wants to move to another country if the other parent does not agree. It is no longer the case that the parent with care will usually be given leave to take the children to live abroad if she has genuine and compelling reason to move (say, because she is remarried and her new husband’s work takes him abroad or if she has all of her family support in another country) but the court’s focus is very much a “holistic” one with the child or children’s welfare being the overriding consideration.

It is rare to get such a glimpse into the lives of the rich and famous as we have in the case of Rocco Ritchie; cases are generally not reported or reported anonymously to protect the parties and the children.   It is of note that Rocco has said that there should be anonymous publication as it was an important case for the “voice of the child” to be heard.