Madonna Louise Ciccone v Guy Stuart Ritchie (First Respondent) Rocco John Ritchie (Second Respondent (No 2)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice MacDonald,Mr Justice MacDonald |
| Judgment Date | 21 March 2016 |
| Neutral Citation | [2016] EWHC 616 (Fam) |
| Docket Number | Case No: FD15P00621 |
| Date | 21 March 2016 |
| Court | Family Division |
[2016] EWHC 616 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice MacDonald
Case No: FD15P00621
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Mr. David Williams QC and Miss. Jacqueline Renton (instructed by Payne Hicks Beach) for the Applicant
Mr. Alex Verdan QC and Mr. Michael Gration (instructed by Stewarts Law) for the First Respondent
Mr. Henry Setright QC and Mr. Edward Devereux (instructed by Goodman Ray) for the Second Respondent
Mr. Adam Wolanski appeared on behalf of News Group Newspapers and Associated Newspapers Limited
Hearing dates: 10 and 11 March 2016
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is the final hearing in proceedings under the 1980 Hague Convention in relation to Rocco John Ritchie, who is now aged 15 years and seven months. Rocco is the son of Ms. Madonna Ciccone and Mr. Guy Ritchie. The court is, at this hearing, concerned primarily with the mother's application for permission to withdraw her application under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (hereafter the 1980 Hague Convention).
The mother is represented by Mr. David Williams QC and Miss. Jacqueline Renton. The father is represented by Mr. Alex Verdan QC and Mr. Michael Gration. Rocco is represented by Mr. Henry Setright QC and Mr. Edward Devereux. I am grateful to leading and junior counsel and their respective solicitors for the impeccable manner in which this matter has been prepared and presented to the court.
The press have attended this hearing in some numbers pursuant to the provisions of FPR 2010 r 27.11(2)(f), which provisions permit duly accredited representatives of news gathering and reporting organisations to attend proceedings in the family courts held in private. Neither the parents nor Rocco sought to exclude the press from the courtroom.
The provisions in the rules that permit the attendance of the media during hearings held in private do not alter the statutory provisions and rules governing the publication of information relating to those proceedings. During the course of the hearing I have regulated what the press can publish in respect of the hearing by means of interim reporting restriction orders made at a pre-hearing review on 3 March 2016 and at the end of the first day of this substantive hearing. At the conclusion of this hearing I made a further and comprehensive reporting restriction order.
On the second day of this hearing Mr. Adam Wolanski appeared on behalf of News Group Newspapers and Associated Newspapers Limited. Those news organisations made an application that their reporters be permitted to report all that has been said during the course of this hearing. Further, they applied, pursuant to Paragraph 18 of the President's Practice Guidance of 16 January 2014 entitled Transparency in the Family Courts: Publication of Judgments, for the judgment I gave on 3 February 2016 following the hearing on 21 December 2015, and this judgment to be published. As always, Mr Wolanski's submissions were measured and realistic.
Essential Background
The background to this matter is set out in the judgment I gave on 3 February 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.
On 21 December 2015 the mother issued proceedings under the 1980 Hague Convention for the summary return of Rocco to the jurisdiction of the United States of America, and specifically New York State.
Thereafter, on 23 December 2015 the mother commenced proceedings in the Supreme Court of the State of New York. As I noted in my previous judgment, following the end of the parents' marriage the arrangements for Rocco were agreed in February 2009 by way of a consent order approved by the Senior District Judge in the Principal Registry of the Family Division. 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.
The current proceedings in New York are being heard by The Honourable Justice Deborah Kaplan. They are taking place in open court in line with the practice in that jurisdiction. At one point in these proceedings it was proposed that judicial liaison should take place between Judge Kaplan and myself. However, having had, very helpfully, sight of full transcripts of the hearing that took place in New York on 23 December 2015 and a transcript of a conference call hearing before Judge Kaplan on 2 March 2016 it was not necessary for me to take up Judge Kaplan's valuable time making enquiries as to what had transpired in the proceedings in New York.
The transcripts of the hearing and the conference call hearing before Judge Kaplan indicate the following matters germane to the issues that have arisen for determination at this hearing:
i) On 23 December 2015 Judge Kaplan directed that Rocco return to New York. Rocco has not returned to New York.
ii) On 2 March 2016, having noted the " extraordinary media coverage" that the proceedings in the United States had attracted, and having weighed the welfare of the child and the potential harmful effects of disclosing information to the public against the constitutional and statutory imperatives favouring open justice, Judge Kaplan declined the parties' application to close the courtroom to the press on the grounds that the parties had not met the burden to show a compelling interest that would justify the closing of the courtroom.
iii) Whilst declining to vacate her order for return, Judge Kaplan made clear on 2 March 2016 that she was not issuing a warrant for the father and was not making any order that Rocco be removed from school in England.
iv) On 2 March 2016 Judge Kaplan repeated her plea to the parties to work together to settle matters for the benefit of Rocco.
The mother accepts that the Supreme Court of the State of New York has jurisdiction in this matter. The father made clear during the course of this hearing through Mr. Verdan that he, likewise, accepts that the New York Court has jurisdiction, albeit at the outset of the hearing Mr. Verdan submitted that this court should make certain substantive welfare orders in respect of Rocco. Whilst in his Skeleton Argument Mr. Setright undertook an analysis of the jurisdictional position in this case (including an analysis of habitual residence) and submits that this court should, upon the withdrawal of these proceedings, give certain procedural directions aimed at any future applications made in this jurisdiction, he does not suggest at this time that Rocco disputes the jurisdiction of the court in New York. Within this context, and with respect in particular to orders originally sought by the father, Mr. Williams submitted that it would be wrong for the English court to seek to " park its tanks" (to use his phrase) on the front lawn of the United States by taking any steps beyond those necessary to effect the withdrawal of the proceedings under the 1980 Hague Convention.
Within the foregoing context, at the point that this final hearing commenced on 10 March 2016 the case had reached a rather curious position.
The mother sought to withdraw proceedings under the 1980 Hague Convention for the summary return of Rocco to the United States of America but continued, at least formally, to seek his return under the auspices of an order made in the proceedings in New York. The mother contends she is entitled to withdraw her proceedings under the 1980 Hague Convention without the need for permission from the court.
The father continued to object to the return of Rocco to the United States of America. However, the father argued that (a) the mother requires permission to withdraw her proceedings under the 1980 Hague Convention, the test for permission being Rocco's best interests, and (b) that the court has jurisdiction to make, and should make, substantive welfare orders in respect of Rocco to protect his position within this jurisdiction. Within this context, the Position Statement lodged on behalf of the father for the pre-hearing review on 3 March 2016 raised the possibility of the court refusing the mother permission to withdraw her application under the 1980 Hague Convention on welfare grounds and thereafter determining certain welfare issues identified by the father within these proceedings. The father had issued no separate application to that end.
Thus the parent seeking return sought to abandon her application for an order for return and the parent opposing return sought, nominally, to resist the withdrawal of an application designed to achieve that end, at least until further substantive welfare orders were made. The reason that the position I have described has arisen is tolerably clear. The mother continues, at least formally, to seek the return of Rocco to the United States of America but has come to see the proceedings under the 1980 Hague Convention in this jurisdiction...
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