The Hard Case
Will Guy Ritchie win; lock, stock and barrel?
The press and gossip magazines have been full of articles regarding the ongoing, highly public battle between Madonna and her ex-husband Guy Ritchie regarding where their 15 year old son, Rocco, should live. In November 2015, Rocco refused to return to the United States to live with his mother with whom he had lived since the divorce of his parents in 2008, opting instead to remain with his father in England.
This case touches on a raft of issues relating to children proceedings and I will comment on four of them in particular:
Wishes and Feelings
When dealing with the arrangements for a child, the Court’s paramount consideration is the welfare of the child concerned. When a Court is asked to consider making or altering orders in relation to a child, the Court has to have regard to a number of factors laid out in Section 3 of The Children Act 1989. In Rocco’s case the key factor will be his ‘ascertainable wishes and feelings’ which will be ‘considered in the light of his age and understanding’. Rocco has reportedly been quite vocal about preferring a "low key" life in London with his father to following his mother around the world.
The Court often seeks information about a child’s wishes and feelings within Court proceedings. This is usually through an officer from CAFCASS (Children and Family Court Advisory Support Service) speaking with the child and reporting their views (alongside other relevant matters) in a report to the Court. The older a child is the more likely it is that their views will be taken into account and the greater the weight that the Court will attach to those views. The views of a teenager are therefore more likely to be taken into account than those of a 4 year old. This is partly because a teenager is usually better able to express themselves and is at a stage developmentally where they have their own views on important issues in their lives, but also because it is very difficult to force a recalcitrant teenager to do something they don’t want to do.
It is quite common to see children ‘voting with their feet’ when they get to their teenage years and either moving to live with their non-resident parent or refusing to have contact with that parent. This can have a huge emotional impact on the parent being left behind or the one who the child refuses to see. This has been highlighted by Madonna’s very public breakdown on stage in Melbourne, Australia on Thursday 10 March 2016, at subsequent shows and on social media such as Instagram.
Use of social media is pervasive in modern society with the vast majority of people having at least some involvement with it on a daily basis. As illustrated by Madonna, people often use social media to vent their feelings on difficult issues happening within their family. This means that disputes that used to take place in a relatively private arena with only close family, friends and perhaps some overly interested neighbours being aware of what was happening are now taking place in full view of far more people.
Often when people post something on a social media site they don’t think about who else is going to see that post and they often lose control of the content as soon as they’ve pressed enter. Soon, old school friends, fleeting acquaintances, their boss, and complete strangers know the in and outs of their private life. Inevitably, the fall out is exponential with others soon proffering their opinion on the situation (possibly abusively), taking sides and gossiping. Children are not strangers to social media, with them often having a range of accounts (perhaps even under age) on sites such as Whats App, Snapchat, and Facebook. Even if they don’t have their own accounts, they often know someone who does and that means that children are often privy to social media posts about them and their lives that they were never meant to see.
It is therefore very important for parents going through similar situations to Guy Ritchie and Madonna to avoid mentioning anything about their situation on social media. Doing so can create a more bitter atmosphere, making it harder to get a resolution, and can also cause emotional harm to the child(ren) involved. It should also be noted that if court proceedings have been initiated, the content of those court proceedings is confidential, and parties could be found in contempt of court if they release information about the proceedings in this way.„ÄÄ
Impact on Extended Family
Madonna has three other children, Lourdes (age 19, from relationship with Carlos Leon), and David (age 10, adopted by Madonna and Guy Ritchie) and Mercy (age 10, adopted by Madonna). Guy also has three children by Jacqui Ainsley: Rafael (age 5), and Rivka (age 3) and Levi (age 19 months). Madonna has raised concerns about Rocco needing to maintain his bond with David.
Blended families like Madonna and Guy Ritchie’s are increasingly becoming the norm and this brings with it complex relationships within the family and between families. Children form bonds with their step or half-siblings and need to maintain those bonds after separation. They also need to maintain their relationship with any full or adopted siblings who they no longer with. This can be very difficult for the children who feel torn in different directions and also for the parents who often have to try and put aside their own feelings and any resentment to help facilitate those relationships. All to often, children’s intra-family bonds are compromised by difficulties between the parents.
There have been reports about Lourdes being used as a go between to try to improve the relationship between Rocco and his mother. Although Lourdes is an adult now, it is generally better to avoid using other siblings as go betweens. It puts them in a very difficult position and can compromise their own relationship with their sibling and with their parent, particularly if the parent who has asked them to help perceives their lack of success as a failure.
The Importance of Negotiation and Mediation
The judge in Rocco Ritchie’s proceedings has encouraged Guy Ritchie and Madonna to negotiate matters out of Court and from recent reports it appears likely that Madonna is conceding the issue of Rocco remaining in his father’s care and her focus is now on establishing regular contact with him. Taking a very black and white approach to the situation it may therefore appear that Guy Ritchie has ‘won’ the case. However, the proceedings have clearly been emotionally distressing for all involved and the long term ramifications on the family as a whole are likely to be significant. In many ways, there are no winners. It is, however, to the credit of Guy Ritchie and Madonna that they are now attempting to resolve matters outside of Court rather than pursing matters to a final hearing and getting a judge to decide the case for them.
Final hearings involve the parties to a case giving evidence in front of a judge who then decides on basis of the evidence put before them what the best outcome for the child or children involved in the case is. This can be a very stressful process for all parties, including the child, and it is also very costly. As a result, a lot of emphasis is placed on families attempting to resolve their disputes by using Alternative Dispute Resolution (ADR). This can include, but is not limited to: negotiations through solicitors’ correspondence; both parties attending mediation (discussions take place with a trained mediator present); and Collaborative Law (where both parties attend a meeting together but their solicitors are also present).