The breakdown of the Marriage between Game of Thrones actress, Sophie Turner and singer Joe Jonas has been the hottest topic in the news the past few weeks. When the news broke that Joe had filed a petition for dissolution of marriage in the US on 1st September, negative speculation arose as to the reason for the breakdown of the marriage. These rumours weren’t helped when Jonas apparently criticised Turner’s ability to parent their two children. Turner has now filed her own petition against Jonas for the wrongful retention of the couple’s children.
While most of the world views the topic as the latest Hollywood scandal, for family lawyers, several different considerations come to mind.
What we currently know
A statement has been made to the media by a representative of Jonas, that the couple’s children, having been born and spent most of their lives in the US, are American citizens and accordingly the US is where they live. Turner however has disputed this. In her petition, she has indicated that the children are habitually resident in the UK, as this is where they were intended to live and where their physical home is.
‘Habitual residence’ is a legal term often used by family lawyers to determine which jurisdiction a case should be heard in. In deciding where someone is habitually resident for the purposes of disputes about jurisdiction, one of the most significant factors is where someone lives on a regular basis.
Prior to Jonas’ action for divorce being raised, it is being indicated by the media that the couple had agreed that the children would accompany him on his US tour on a temporary basis, then once the tour was over, they would return to England where they would all live together in the family home. Jonas is now allegedly refusing to give Turner the children’s passports; and to allow her to fly home to the UK with the children which has led Turner to submit a Hague Convention Application seeking the return of the children to England.
What does the law say?
The Hague Convention was created in order to protect children from the potentially harmful effects of being unlawfully retained in a foreign jurisdiction; or unlawfully removed from their home jurisdiction. The Convention exists in order to give parents a legal instrument which can be used for children to be returned to the child’s country of habitual residence as quickly as possible. The application has to be filed in the jurisdiction in which the children are being wrongfully retained in and must be brought within one year of the wrongful removal or retention occurring. Turner has clearly met those timescales.
The next steps are for Turner to prove that:-
- The children were “habitually resident” in the country from where they wrongfully removed, which in this case would be England.
- The removal or retention of the children was in breach of Turner’s rights of “custody” at the time it occurred.
- Turner must be seen to have been exercising her right to “custody” at the time when the children were wrongfully removed or retailed
Who is likely to be successful?
The Hague convention is a powerful tool and cases are often successful if the allegation of wrongful retention or removal is proven. What is likely to be the most difficult thing for Turner to establish is that the children’s habitual residence is in England.
There are defences which would be available to Jonas in order for him to try and persuade the court that the children are habitually resident in the US.
Potential defences available to Joe could be:-
- That the children, having spent over a year in the US, are now settled in that country, and their habitual residence has changed. In order to prove that the children are settled, there are a number of factors which a court will examine, such as where they go to school, where their friends live or where their Doctor is registered for example.
- That Turner consented to the children moving to the US and has only changed her mind following separation.
It’s important to say that there can be other arguments which can be advanced to try and persuade a court dealing with a Hague application to refuse to return children even if the court does accept that they are habitually resident in the jurisdiction a parent is seeking to have them returned to. These include that there would be a grave risk to the children were they to be returned. However, it is not understood that these are issues in this case.
What is likely to happen now?
If Turner is successful with her application, then the children will be ordered to be returned to the UK and the Family Courts of England and Wales will then consider what next steps are in the children’s best interests. However, should Jonas successfully defend the application, then the children will remain in the US and a court in the US will then have to assess what’s best for the children.
Whilst the drama and scandal of this case has suddenly caught the attention of the world, disagreements between separated individuals and the impact on children are seen every day by Family Law solicitors. It is important that the welfare of children is protected in any dispute. If you are experiencing difficulties during a separation, you should consult a Family Law Solicitor at the earliest opportunity.