Madonna’s family law struggle

The legal struggle continues between Guy Ritchie and Madonna to determine who their teenage son, Rocco should live with.

The pair divorced in 2008 and agreed arrangements where Rocco would spend half his time in USA with his mother and half his time with his father. Although the media has reported a catalogue of ‘bumps in the road’ the situation came to a head in 2015.

As Rocco has matured, he has expressed a desire to spend more time with his father. Madonna has been vocal about how distressed she feels about her son spending more and more time away from her. Eventually, it seemed Madonna felt she had no alternative but to commence court proceedings to formalise the time Rocco should spend with each parent.

After a series of court hearings the court ordered that Rocco should spend Christmas 2015 with Madonna in USA. Regardless of the court order, Rocco refused and was adamant he wanted to spend the festive period with his father in London. Hence, the matter has returned to the court yesterday.

It is an unfortunate and heart wrenching time for all those involved. However, it throws up difficult questions surrounding children’s own wishes and desires.

Rocco is 15 years old and in the eyes of the law is still a child. When a court determines any question with respect to the upbringing of a child then the child’s welfare will always be the paramount consideration. However, the court shall also have regard to other matters, in particular ‘the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’.

Legislation does not specify a minimum age a child should have their wishes and feeling considered. Notwithstanding this, case law has given guidance on the matter and clarified ‘As a rough rule we would see these (the child wishes) as needing to be taken account of at any age; above 10 we see these as carrying considerable weight with 6—10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development) reached, before their wishes and feelings should be ascertained or taken into account’.

So, as a 15 year old, the court will see Rocco as a child and so his welfare will be paramount but in reality, in principle is the court must actively listen to Rocco when he expresses a view.

It is believed that Rocco has been clear, he has expressed his desire to spend more time with his father in London, so the court’s job now is to weigh up his wishes, evaluate these, and decide on an outcome that will always be centred on what is within his best interests.

As distressing as this may be for Madonna, who is grappling to reach an outcome where Rocco will spend more time with her, the court is likely to give weight to Rocco’s desire to remain with his father.