Madonna Louise Ciccone v Guy Stuart Ritchie (First Respondent) Rocco John Ritchie (No 1) (Second Respondent)

JurisdictionEngland & Wales
JudgeMr Justice MacDonald
Judgment Date03 February 2016
Neutral Citation[2016] EWHC 608 (Fam)
Docket NumberCase No: FD15P00621
CourtFamily Division
Date03 February 2016

[2016] EWHC 608 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice MacDonald

Case No: FD15P00621

Between:
Madonna Louise Ciccone
Applicant
and
Guy Stuart Ritchie
First Respondent
Rocco John Ritchie (No 1)
Second Respondent

Mr David Williams QC and Miss Jaqueline Renton (instructed by Payne Hicks Beach) for the Applicant

Mr Michael Gration (instructed by Stewarts Law) for the First Respondent

Mr Henry Setright QC and Edward Devereux (instructed by Goodman Ray) for the Second Respondent

Hearing dates: 21 December 2015

Mr Justice MacDonald

Introduction

1

These are proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (hereafter the Convention) in relation to Rocco John Ritchie, who is now aged 15 years and four months. Rocco is the son of Ms Madonna Ciccone and Mr Guy Ritchie. This is the mother's application under the Convention for the summary return of Rocco to the jurisdiction of the United States and, specifically, New York State. The mother alleges that the father wrongfully retained Rocco in this jurisdiction on 6th December 2015.

2

I also note at this point that proceedings in respect of Rocco have also been commenced in New York State. There is a hearing pending in those proceedings in respect of an order originally made in proceedings in the United Kingdom but ratified and certified in New York State for the purposes of enforcement. I will say a little more about that order below. It is important to note that I am told that Rocco will be represented within the proceedings in New York by an attorney for children.

3

On the last day of term, at the conclusion of a very busy urgent applications list, the mother's application came before me for the first hearing on short notice to the father and to those representing Rocco. On that day I determined, amongst other issues, an application made by Rocco to be joined as a party to these proceedings.

4

Having heard submissions from all parties I granted Rocco's application to be made a party as being in his best interests. Given the time in the evening at which the hearing concluded I delivered my decision with short reasons and indicated that I would give my detailed reasons later. I now do so.

Essential Background

5

The parents were married in December 2000. A divorce petition was issued in September 2008 and Decree Absolute was given in January 2009. The arrangements for Rocco were agreed by way of a consent order approved by the Senior District Judge in the Principal Registry of the Family Division in February 2009.

6

That consent order provided that the mother have permission to permanently remove Rocco and his younger brother to the United States of America. The order further provided that Rocco would spend time with the father in the terms set out in the order. Pursuant to the terms of that order Rocco moved to the United States to reside with his mother and his siblings.

7

On 27 March 2009 the order of the Senior District Judge was registered in the State of New York by the Supreme Court of the State of New York, by which registration the order of the Senior District Judge is deemed to have the same force and effect as an order of, and is enforceable as if it were issued by, a court of the State of New York.

8

In November 2015, pursuant to the order agreed between them, the parents settled the arrangements for Rocco to spend time with his parents during the Christmas period.

9

Rocco was due to spend time with his mother from 6 December 2015. Rocco did not return to the mother on that date and remains in the care of the father. Rocco has indicated through his solicitors that he does not wish to return the United States at this time.

10

The parties have, to their great credit, endeavoured to resolve the ensuing impasse amicably by engaging in mediation assisted by a team of two mediators proposed by Rocco's solicitors. It is important to note that Rocco has been involved fully in that mediation process. Unfortunately, despite the efforts of the parties, mediation was ultimately unsuccessful and on 18 December 2015 the mother issued her application under the 1980 Convention seeking the summary return of Rocco to the United States of America.

11

Rocco now applies for party status in the proceedings commenced by that application. The application for party status is advanced on behalf of Rocco by Mr. Henry Setright QC and Mr. Edward Devereux. The application is supported by the father, represented by Mr. Michael Gration. The application is opposed by the mother, represented by Mr. David Williams QC and Miss Jacqueline Renton.

The Submissions

12

On Rocco's behalf Mr. Setright QC and Mr. Devereux submit that it is in Rocco's best interests to have the status of a party to these proceedings in order to enable him to participate fully in proceedings that have the potential to affect fundamentally his future.

13

Mr. Setright characterises this case as unusual in circumstances where Rocco is over 15, and therefore very near the upper age limit for Convention proceedings, the outcome of which may be the summary return of Rocco to the United States, where Rocco, through an expressed wish not to return, considers himself to be the instigator of the circumstances that ground the alleged retention and where Rocco has been, to date, intimately involved in the efforts to achieve a mediated resolution of this matter.

14

Within this context, Mr. Setright emphasises that Rocco wishes to participate actively as a party in the decision making process that will have a fundamental effect on his future, as opposed to passively through the medium a Cafcass report setting out his wishes and feelings. On behalf of Rocco, Mr. Setright says that Rocco does not want what he says filtered either through a Cafcass Officer or the respective cases of his father or mother whereby it is inevitable that the nuances of Rocco's position will be diluted. Rather, Rocco wishes to be able to argue his position and to be able to respond to the arguments advanced by his mother and father as they respond to what he has said, a wish that would be frustrated by a report from Cafcass that permitted only a passive indication of his wishes and feelings.

15

More immediately, Mr. Setright argues that party status will permit Rocco to participate directly in the decisions that fall to be made at this hearing, the most pressing of which is whether I should utilise s 5 of the Child Abduction and Custody Act 1985 as a means of ordering contact between Rocco and his mother over the Christmas period.

16

Mr. Setright further points out that both parents have considered it appropriate for Rocco to participate fully in the process to date through his involvement in mediation and that his mother has invited the court to appoint a legal representative to represent Rocco in the proceedings in the United States. Party status for Rocco is therefore, Mr. Setright submits, consistent with his parents' position to date, which position has been to involve Rocco consistently.

17

Having regard to his involvement in the mediation process and his representation by a lawyer in the proceedings in New York, Mr. Setright argues that it would be detrimental to Rocco for him to be in a wholly different position in the very proceedings constituted to decide whether he should be summarily returned to the United States against his wishes. Within this context, Mr. Setright argues that it would be positively harmful to Rocco were he to be denied participation and for the court then to decide to return him to the United States and expect him to be content with that decision and co-operate with it. Mr. Setright further argues that, in circumstances where Rocco has already instructed solicitors, there will be no delay caused by joining Rocco as a party.

18

Finally, Mr. Setright contends that party status will add significantly to the court's understanding in this case. In particular, Mr. Setright today lays down a marker that Rocco will seek to argue the issue of habitual residence, which issue cannot be properly considered without Rocco being joined as a party. In addition, if the court were to order Rocco to return, Mr. Setright argues that party status would confer on Rocco the ability to articulate fully to the court, and to participate in discussion and negotiation of, the adjustments to his life in the United States arising out of the matters set out in Ms. Ray's statement and on any issues regarding how enforcement of an order for return should be achieved.

19

I have before me a statement prepared on behalf of Rocco by Ms. Peggy Ray of Goodman Ray solicitors. In that statement Ms. Ray observes that "[Rocco] is 15 years and four months old. He will be 16 in August 2016. He is a mature, articulate and reflective young man and fully competent (in my assessment) to instruct a solicitor direct and has done so throughout the course of the last three weeks."

20

The father supports the application by Rocco for party status. In his oral submissions, Mr. Gration emphasised on behalf of the father that the precipitating factor in this case was Rocco's decision and that, in the circumstances, it is Rocco who is best placed to advance through his lawyers that position before the court. Mr. Gration further submitted that the court must balance the potential harm of involving Rocco in the arena of these proceedings and the adverse impact of not allowing him to be involved. Finally, Mr. Gration submitted that Rocco's position falls squarely within the categories of case which may justify making the child a party that are set out at paragraphs 7(b), 7(d) and 7(e) of FPR 2010 PD16A.

21

In response to Rocco's application, Mr. Williams QC and Miss. Jaqueline Renton on behalf of the mother,...

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2 cases
  • Madonna Louise Ciccone v Guy Stuart Ritchie (First Respondent) Rocco John Ritchie (Second Respondent (No 2)
    • United Kingdom
    • Family Division
    • 21 Marzo 2016
    ...2016, following the hearing on 21 December 2015, setting out my reasons for joining Rocco as a party to these proceedings (see Ciccone v Ritchie (No 1) [2016] EWHC 608 (Fam)). I shall not therefore repeat the background facts here save for the following. 7 On 21 December 2015 the mother iss......
  • C v M (A Child) (Abduction: Representation of Child Party)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 1 Diciembre 2023
    ...giving opinion evidence without this being subject to any wider analysis or consideration. She referred to Ciccone v Ritchie (No 1) [2016] 4 WLR 60 (“ Ciccone v Ritchie”) and to the guidance given in the Law Society's December 2019 Practice Note, Acting in the Absence of a Children's Guard......

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