Transatlantic custody battles...

...what happens if your child does not want to return home?

How do custody battles for children work that cross over international borders

Over the past couple of weeks the custody battle between Guy Ritchie and Madonna has been widely reported in the press with a settlement finally being reached after the long-running dispute.

The case was predominantly dealt with in the New York courts but the case has caused me to wonder about how the case would have been dealt with in the courts of England and Wales?

Looking to answer the question, we have to start with some of the background to the case. Madonna and Guy Ritchie separated in 2008 and following this they registered a “Shared custody” agreement with the court in the USA. Rocco Ritchie was 15 years old in December 2015 when, having stayed with his father for a visit to London, he refused to return to his mother’s home in New York. However the matter was next due in court on 8th September when Rocco would have been 16.

3 child arrangement legal issues that come out of this scenario:

  1. Retention of a child out of the jurisdiction where they reside;
  2. Enforcement of an agreement regarding child arrangements; and
  3. The age and wishes and feelings of the child in question.

Retention of a child out of the jurisdiction where they reside

The law in England and Wales provides that it is a criminal offence to remove a child out of the jurisdiction (i.e. country where they live) without the consent of all of those with parental responsibility. However in Rocco’s case, it would have been more complicated if Madonna sought to claim against Mr Ritchie on this basis. Firstly, Mr Ritchie did not remove him from the jurisdiction, although the non-return may well have been argued as a removal. Secondly, the “shared custody” agreement may be used to argue that Rocco resides in both countries. Ordinarily though it must be remembered that if no other Court orders are in place you must have their consent to take your child abroad, even if it is just a holiday and even if you are on good terms with your child’s other parent (or any other person with parental responsibility).

Enforcement of an agreement regarding child arrangements

This issue highlights a significant difference between the English and American court systems. In the Courts of England and Wales you cannot simply go to Court to formalise an agreement. If you are already in proceedings and reach an agreement you can formalise it in Court. If however you are not in proceedings and simply want to have an order for future protection but there is no dispute, you cannot.

The Children Act embodies a No Order principle which means that if you do not need an order (i.e. as there is no dispute) you cannot have one. That leads me onto what would happen if you did seek to enforce an agreement between both parties in this country. If you do not have a Court order but merely a written document drawn up between both parties, you are not able to apply to enforce that agreement. You would have to apply for a Child Arrangements Order in the terms of the arrangement you are seeking. Although the Court are not bound by your previous agreement, your chances of having an Order in the terms you seek greatly increases if you can satisfy the Court that the arrangement is in the children’s best interests and there is no reason to depart from it.

What if you do have an Order?

There are proceedings that you can issue to seek an Enforcement Order but the general practice within the courts of England and Wales is that the Court will also consider whether that Order / Arrangement is still best for the child in question. It is always advisable to seek legal advice before making any application to Court, even if you intend to represent yourself thereafter.

If both Madonna and Mr Ritchie resided in England and Madonna sought to enforce the previous arrangement then the Court would have considered Rocco’s position before enforcing it, which leads me onto the third issue.

The age and wishes and feelings of the child in question

Rocco was 15 at the commencement of the proceedings and 16 at the end and in this country this fact would have had a role to play within the proceedings.

The Children Act 1989 provides that the child’s welfare is the paramount consideration when deciding what Child Arrangements Order (known as Custody in New York) to put in place and provides a checklist of factors for the court to consider when deciding what that is. As a family law solicitor I am asked daily “When can my child decide where he wants to live?” Now technically the answer to that is when he is not a child anymore but one section of the welfare checklist is the child’s wishes and feelings in light of their age and understanding - the older a child is, the more weight is given to his wishes.

In reality, if Rocco at 15 did not want to go home and there were no concerns regarding his safety with his father then, subject to facts I am not aware of, I believe Madonna would have struggled to have obtained an order for his return in the courts of England and Wales. A further difficulty that Madonna would have faced here would have been the fact that Rocco was 16 by the final court date. The Children Act provides that a Child Arrangements Order, other than to vary or discharge it, will not be made in relation to a child who has reached the age of 16 except in exceptional circumstances. Elsewhere it states that an order shall not last after a child is 16, unless in exceptional circumstances, and so she may not have issued her application in the first place given these facts. Even if it were made, come his 16 birthday he could have left again.

The positive thing to come out of the media reports of this case is that the parents have settled the case by agreement, which is always the best way for everyone involved.

If you require help and advice and  would like to discuss further how Hunt & Coombs can help you with a child arrangement order, care proceedings or any other area of family law, contact our Family Law Team on 01733 882800.

Author

Louise Ballantyne, Senior Solicitors in the Family Team louise.ballantyne@hcsolicitors.co.uk

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.