Volition Harry and Meghan have custody of their own children?

Duke and Duchess of SussexA story has made the rounds this silly flavour that the Queen has custody of her pocket-sized grandchildren (and by implication her swell-grandchildren) instead of their parents. This appears to be total nonsense.

This all seems to rely on a blog post by an American royal journalist Marlene Koenig who in turn relies on an commodity in the Times from 1993 by Michael L. Nash (which I could non find). The story relies on a number of points:

  1. A court example from 1717: Case concerning the Rex's Prerogative in respect to the Education and Marriage of the Royal Family. Hilary Term, iv., Geo. I. 1717
  2. This was a law that was passed by judges in 1717.
  3. A contention that this was re-enacted in 1772
  4. The fact that Prince Charles and Princess Diana'south divorce settlement did not deal with custody of their children.
  5. An extrapolation from grandchildren to great-grandchildren (which even Marlene Koenig denies to take made).

Let'southward take these points in turn. Before doing and then, I must country that I am a family lawyer, not a constitutional lawyer, so if I get any constitutional points wrong, delight do let me know.

1717 Case

This is a case on whether the King has a royal prerogative in the area of custody of his grandchildren. The question to the courtroom was:

'Whether the education, and the care of the persons of his majesty's grandchildren, at present in England, and of prince Frederick, eldest son of his royal highness the prince of Wales, when his majesty shall think fit to cause him to come into England, and the ordering the place of their dwelling house, and appointing their governors, governesses and other instructors, attendants and servants, and the care and beatitude of their marriages, when grown up, practice belong of correct to his majesty, as king of this realm or not.'

This was before fathers and mothers had equal power over their children etc. A royal prerogative exists where there is no statute or other legal provision, i.due east. a legal vacuum. The government contested it could use the royal prerogative to invoke Commodity 50 of the Treaty of the European Spousal relationship to requite notice to go out the European union, just the courts held that because Parliament had legislated in this area, it needed parliamentary approval: no gap in law – no royal prerogative (R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Marriage and associated references [2017] UKSC 5). So if Parliament has legislated in the expanse of child custody since (and it has) and did not exempt the royal family, this trumps any royal prerogative the sovereign may have had in 1717.

Enactment

No law was passed by judges. Judges do not pass laws, they interpret them. Parliament passes laws and did not do and then on this bespeak in 1717.

Royal Marriages Act 1772

The case report of the 1717 case refers to a preamble to the Royal Marriages Human activity 1772, which stated "that 'the kings of this realm have ever been intrusted with the care and approbation' of such marriages." So aught was enacted almost the custody of minors. The point fabricated here is merely that the act stated that the Rex had those powers anyhow. However, now that parliament has legislated, these powers are no longer a royal prerogative and indeed the Regal Marriages Human action 1772 was repealed by the Succession to the Crown Act 2013. This does non revive the royal prerogative. Instead this shows that in one case parliament legislates in an expanse, there is no longer a imperial prerogative, even when it comes to the royal family.

Charles' and Diana's Divorce Settlement

Past 1991 the Children Act 1989 (which does not exempt any imperial prerogative) had come into forcefulness and there concepts of "custody" no longer be in English family law. Married parents have parental responsibility and retain that fifty-fifty when they divorce. There has been no need for whatsoever apportionment of custody or other parental rights in a divorce settlement since then and indeed you cannot include it in the main financial settlement. Separate court proceedings are necessary if parents exercise not concur and the law at present actively discourages parents from litigating. So the fact that Charles' and Diana'due south divorce settlement did not honor custody to one of them is neither hither nor at that place.

Great-Grandchildren

Even Marlene Koenig does non contend that the royal prerogative extends to great-grandchildren, so even if it yet existed, every bit for Harry and Meghan's children information technology is a non-story.

Then here we are in the lightheaded season of summer and media outlets are copying from a 2013 web log post to create a story which seems to have no foundation in law at all.

Posted in Children Divorce | Tagged children media Royals