Will Harry and Meghan have custody of their own children?
has made the rounds this silly season that the Queen has custody of her minor grandchildren (and by implication her great-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 article in the Times from 1993 by Michael L. Nash (which I could not find). The story relies on a number of points:
- A court case from 1717: Case concerning the King’s Prerogative in respect to the Education and Marriage of the Royal Family. Hilary Term, 4., Geo. I. 1717
- This was a law that was passed by judges in 1717.
- A contention that this was re-enacted in 1772
- The fact that Prince Charles and Princess Diana’s divorce settlement did not deal with custody of their children.
- An extrapolation from grandchildren to great-grandchildren (which even Marlene Koenig denies to have made).
Let’s take these points in turn. Before doing so, I must state that I am a family lawyer, not a constitutional lawyer, so if I get any constitutional points wrong, please do let me know.
This is a case on whether the King has a royal prerogative in the area of custody
of his grandchildren. The question to the court was:
'Whether the education, and the care of the persons of his majesty's grandchildren, now 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 abode, and appointing their governors, governesses and other instructors, attendants and servants, and the care and approbation of their marriages, when grown up, do belong of right 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.e. a legal vacuum. The government contested it could use the royal prerogative to invoke Article 50 of the Treaty of the European Union to give notice to leave the EU, but 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 Union and associated references  UKSC 5
). So if Parliament has legislated in the area 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.
No law was passed by judges. Judges do not pass laws, they interpret them. Parliament passes laws and did not do so on this point in 1717.
Royal Marriages Act 1772
The case report of the 1717 case
refers to a preamble to the Royal Marriages Act 1772, which stated “that ‘the kings of this realm have ever been intrusted with the care and approbation' of such marriages.” So nothing was enacted about the custody of minors. The point made here is simply that the act stated that the King had those powers anyway. However, now that parliament has legislated, these powers are no longer a royal prerogative and indeed the Royal Marriages Act 1772
was repealed by the Succession to the Crown Act 2013
. This does not revive the royal prerogative. Instead this shows that once parliament legislates in an area, there is no longer a royal prerogative, even when it comes to the royal family.
Charles’ and Diana’s Divorce Settlement
By 1991 the Children Act 1989
(which does not exempt any royal prerogative) had come into force and there concepts of “custody”
no longer exist in English family law. Married parents have parental responsibility
and retain that even when they divorce
. There has been no need for any 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 do not agree and the law now actively discourages parents from litigating
. So the fact that Charles’ and Diana’s divorce settlement did not award custody to one of them is neither here nor there.
Even Marlene Koenig does not contend that the royal prerogative extends to great-grandchildren, so even if it still existed, as for Harry and Meghan’s children it is a non-story.
So here we are in the silly season of summer and media outlets are copying from a 2013 blog post to create a story which seems to have no foundation in law at all.
Equal time between Parents
I frequently get asked how children
should share their time
between their parents. More parents agree or demand from the other that they have equal time. I have seen numerous variations of how that is done in practice, for example:
- One week with each parent.
- 3 days with each parent in turn, or 4 days with each parent in turn.
- Week days in turn with each parent.
- Complicated schedules where over a two or three week period weekdays and weekends are evened out but there are frequent changes.
you agree must work for the children and must be practical depending on your work schedules. So alternate weekends make little sense to a parent who has to work every third weekend for example.
None of the above solutions seems satisfactory to me. A week with each parent means a child has to take all of their belongings and school kit with them each week and does not see the other parent for a long time. This may work where parents are still close and live close by and a child can nip over to the other house to get some stuff they may have forgotten, but could be a strain in other cases. All other suggestions seem very disruptive with children not knowing whether they are coming or going.
What seems to work for a lot of families, however, (assuming both parents work regular office hours or something close to that) is this system:
- Alternate weekends from Friday to either Sunday night or Monday to school/nursery. If this is to Monday that would be 3 nights in 14.
- The same weekdays with each parent in one chunk, i.e. Mondays and Tuesday with one and Wednesdays and Thursdays with the other parent. This means 2 nights a week or 4 nights a fortnight. Together with the weekends those are 7 nights a fortnight and exactly equal.
- Equal division of holidays.
The advantages of this system are:
- Weekends are alternating so parents can actually make plans and go away with the children overnight if they want, say to visit family or go to the seaside etc. Or they could just have a lie-in/pyjama morning lounging around of course.
- Most children have some after-school activities (sports or music lessons etc) and with this system the same activity will be with the same parent, e.g. “mum will always take me to football training on Tuesdays”. This also applies to the school timetable.
- Children seem to be able to remember which parent they have been with each weekend, so alternating weekends are a system they can follow. They also seem to be able to remember days of the week and so this system is something they can follow without having to consult a calendar or having an adult tell them. They can make plans, such as inviting a friend around to play (or for revision) Thursday next week without having to think where that would be or who they would need to ask.
- There are only two handovers each week and they can, if necessary be through the school or nursery so parents do not have to meet, which can help if this has been a problem in the past.
- A child will spend at most 2 nights plus a weekend (5 nights) with one parent, so is not away from the other for longer than that.
So it’s a system that’s easy to follow for children and allows whole weekends with each parent.
Even in cases where there is no insistence on equal division, this system can work in a modified form, i.e.
- Alternate weekends from Friday to Sunday night with each parent
- Thursday night with one parent, the rest with the other.
This means that each alternate weekend the child is with the other parent from Thursday to Sunday night. This system could later move to the one I described above in a way that seems very natural for the child.