A story 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.
One parent can apply for a British passport for a child, but in many other countries both parents have to make the application. Often that includes personally coming to the appointment. For foreign parents living in the UK this can be a serious problem. I have had many such enquiries. Recently a mother contacted me (details anonymised):
My daughter is 6 years old and I am from Spain. The father has not been involved in her life for 5 years and I do not know where he is. The Spanish embassy says he needs to come to make the application for the passport or I need a court order. Can you help?
Here is what you can do:
- Check if you can get a British passport instead without the other parent’s involvement. Your child may in fact be British already. Many people do not realise that. If the other parent is British, your child is probably also British. Even if you are both foreign, your child may be British or can be British depending on your immigration status. It is worth getting advice from a specialist immigration solicitor. This could be worthwhile, not only if you want to travel soon but also for your child’s ability to stay in the UK post Brexit or in their own right once they are an adult.
- The problem is that the English courts do not have a specific order in statute law that provides for this because it is not an issue for British nationals. However, specific issue orders can be made. Another problem is that the English courts have no power to direct a foreign state what to do. So the Spanish consulate may ignore an order by an English court telling it to issue a passport. Therefore, it is vital for the consulate to confirm what exactly the order should say, preferably providing a wording. Since this is unlikely to be the first time the consulate in London has come across this, they should really know what wording they have accepted in the past. If not, they should think about it and have a pre-printed wording to hand to parents. If they are unresponsive or just direct the parent to a solicitor, we can suggest a draft or alternative drafts for them to approve.
- As with any court proceedings, the party against whom you make an application has a right to be heard. Therefore, you must send a copy of your application to the court to the other parent. If, as in this case, you do not know where the father is because he has not been around for several years, the court will still expect you to try to find him. The court would only allow you to go on with the application without the other parent knowing about it if you have done everything that is reasonable to try to find the other parent without success and can show the court.
- It may be possible that you can make an application in your home country to the court for an order in relation to this issue. This may be straightforward and cheap and may even bind the consulate to act. The jurisdictional issue is perhaps a bit uncertain here: Generally in the EU the courts of the country where the child is habitually resident have the power to make decisions about the child. However, if one regards this as a decision about the sovereign powers of the state to issue passports, it may be that the courts of the home country have powers to deal with the issue. It is worth checking this with a lawyer in your home country.
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.
Any solution 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.
I have had several callers yesterday with essentially the same issue: the other parent is not agreeing to or not sticking to a clear schedule for time they spend with the child. In those cases I can either act for the parent, take detailed instructions and then correspond, all of which costs you money; or I can give generic advice. So I thought I would set out the basic generic advice here for everyone to read. Let’s take an anonymised example of a heterosexual couple where a young child, still a baby, lives with the mother. The same advice applies to same-sex couples, co-parents etc. The father will not agree to clear times, or although they have been agreed, does not turn up, or turns up at other times. He says that if the mother will not let him have contact on his terms, he will go to court. In any event, he will not pay maintenance if she won’t let him have his time with the child and he is entitled to 50/50 anyway.
Now, I only ever hear one side of the story, so there may be a lot more to it. However, there is a suspicion here that the father is using the contact and child maintenance as a way to exert power and coercive control, which is a form of abuse. It is often very difficult to prove that later in court because the abuser may come across as perfectly reasonable and claims that he is the one who has always made reasonable requests that have been unreasonably denied. Constant changing and arguing can also be grinding and stressful (and that may well be the intent). To avoid the stress and be able to have a case later in court if the matter comes to court, I advise the following:
- Communicate in writing (letter or email, but not texts, messenger etc.) about the proposals. Be clear and concise about what you suggest and why. Do not go into the history and make no reproaches; be practical and constructive. Suggest a contact regime that works for you, your child and that you think works for the father. Say that if it does not work for him, he tell you why it does not and can make alternative suggestions. Ask him to respond by email only. If he rings or texts etc. tell him you would prefer not to discuss this and that instead he should respond by email. This way, you can later if necessary show that you made reasonable suggestions early on.
- If you find it difficult to see if your proposals would work for him, ask a friend who is a parent of a child of similar age. Don’t be stingy when making your proposals, but do not be over-accommodating (e.g. there is no need to suggest that the father can use your home for contact if he is perfectly able to take the child to his home instead – this may be different if he lives 200 miles away).
- Consider any alternative proposals that he suggests and be prepared to accept them if they work; but give reasons if they do not work.
- Keep a diary (cheap paper diary, or an electronic document) which you update with all agreed contact and what times the father turns up, returns the child etc. You can also include any other issues, communication, telephone calls etc. in that diary. Just use bullet points and do not write whole pages of narrative. Such a record will give you the ability to show later on whether or not the father stuck to the agreement. I have often seen parents who claim they did, but could then be shown up. A paper version may look better with judges as a contemporaneous note, but if an electronic version works best for you, use that. Make sure you update it in real time and not a month later when you can hardly remember what happened. I would also use a document or diary which you do not use for anything else so that you can show a print out or copy to the other parent or the court.
- Ignore threats, in particular of “50/50 access” when that is practically fanciful (e.g. the father is not sticking to contact because in addition to his full-time job he is doing overtime).
- Be prepared to adjust the regime as the child gets older and their circumstances and needs change or if either of your circumstances and needs change (e.g. you stop breastfeeding regularly; the child starts swimming lessons etc.).
- If maintenance is not regularly paid by standing order at the rate it should be paid, write to ask for copies of his P60 and recent pay slips within 14 days. If you get them, use the online calculator to work out how much maintenance he should be paying. If it is not forthcoming, send a reminder with a clear deadline (say 7 days, taking account of any holidays etc.) and if that is not forthcoming make an application to the Child Maintenance Service. If you are able to calculate the rate and agree, insist it is paid by standing order each month the day after his salary comes in. If not, apply to the CMS.
These points should help in most cases. If you have any other ideas, tweet me.
A cohabiting couple had a child through surrogacy but separated during the pregnancy and the intended father no longer wanted to apply for a parental order.
In a recent case, anonymised as M v F & SM (Human Fertilisation and Embryology Act 2008)  EWHC 2176 (Fam), a cohabiting different-sex couple where the woman could not carry the child found a friend to be their surrogate. Both the intended mother and the intended father were the genetic parents. However, during the pregnancy the couple separated and the intended father no longer wanted anything to do with the child and did not join the intended mother in the application for the parental order. The surrogate handed the child to the intended mother shortly after birth, but the intended mother could not on her own apply for a parental order alone because only couples can apply. The legal parents were the surrogate and the intended father (presumably the surrogate was single). To allow the intended mother to exercise parental responsibility on her own, the court made the child a ward of court and made other order regulating the upbringing until the law is changed (later in 2017 or in 2018) to allow single parents to apply for parental orders.
What does not seem to be discussed in this case is, however, that here a single woman is finding herself bringing up a baby without the help of her former partner (as they planned). Presumably while he is the legal father, she can apply to the CMS and the courts for child maintenance and financial provision. However, once a parental order is made, she will be the only legal parent and will have no financial help from the intended father.
This sits in contrast to a case where a couple undergo IVF, for instance, with donor sperm. Even if they split up during the pregnancy, the mother’s partner and legal father will be financially liable for the child even if he wants nothing more to do with the child. This is although he has no genetic connection with the child. This is of course the same as in any case where a woman gets naturally pregnant from a man even if that is a “one-night stand”.
In jurisdictions where a surrogacy agreement is binding and creates the legal paternity, both intended parents would be the legal parents from birth. In such a jurisdiction the mother in this case would have recourse to financial provision from the intended father. So while parental orders for single intended parents will be welcome, they still leave a mother like the one in this case financially vulnerable.
I have over the years had enquiries from several lesbian couples who were planning to attempt to conceive both at the same time to have children. One reason given was that they both wanted a close physical bond with a child. While most people who have had twins will say that the first three years are extremely hard, that is one choice for two women in a relationship to experience a close physical mother-child relationship.
Another way, which I had not thought of until I came across Breastfeeding Without Birthing by Alyssa Schnell, is for the co-mother (the mother who did not birth the child) in a same-sex female couple to co-nurse, whether or not she has a (full) milk supply.
I talked about Alyssa’s work in another blog post about intended mothers who have children through surrogacy and breastfeed them. In episode 15 of Breastfeeding Outside the Box podcasts, Alyssa talks to Rachel Gazda and Talana Keister about their experience of co-nursing their daughter as co-mothers. I love the options this creates for parenting, not least because I have in my practice come across a number of same-sex female couples where for medical reasons they choose for the younger partner to carry the children but the older was then the one who stopped gainful employment or went part time to care for the children.
I was not aware that women could breastfeed without giving birth until I came across Alyssa Schnell’s book Breastfeeding Without Birthing. The book is available in the UK on Amazon. Alyssa describes how any woman can try to induce lactation (through breastfeeding, manual stimulation, pumping and/or herbs and medication) and breastfeed a baby. Not every woman will produce the full amount of milk a baby needs, but Alyssa encourages breastfeeding for the benefit of nursing and the bond it creates irrespective of the milk supply produced. She gives tips and instructions how to supplement the breast milk supply. The book is full of practical tips and instructions. Alyssa is an International Board Certified Lactation Consultant (IBCLC) working in St Louis, Missouri, USA. She induced lactation when she adopted her daughter after earlier having given birth to her elder children.
This book is now accompanied by a series of podcasts Breastfeeding Outside the Box where Alyssa Schnell and Hope Lien talk about the experiences of different parents who breastfeed their children other than in the obvious conventional way, including those who have breastfed without birthing. Hope is a lactation counsellor, also in the US, and between them they are putting together a series of interesting episodes.
What is interesting for the work I do is that women who adopt a child or have a child through surrogacy can in fact breastfeed their child if they choose to do so. Not only is this a way to provide the baby with breast milk, which the WHO recommends as the healthier way to feed a child (as opposed to processed formula), but it can also deepen the physical bond between intended mother and child. In episode 13 of the podcasts Hope talks to an intended mother who breastfeeds her child through surrogacy.
The book and the podcasts also deal with relactation or inducing lactation to nurse an older baby, so it is not too late to think about nursing even if you did not think about this before the birth. Find the Breastfeeding Outside the Box podcasts on your podcast app, download them and listen to them when you drive or in the gym or on the tube. I highly recommend them!
I recently had this enquiry:
My spouse and I have a three-year-old son. We are both registered as parents on his birth certificate. We live with a very close friend, Jamie, who has taken an active role in parenting our son throughout his life since he was very small.
Jamie is so involved in our son’s life that their role has effectively become that of a third parent, and we want the official state of affairs to reflect this. We want to give Jamie parental responsibility, and should my spouse and I both die, for example, we would want Jamie to have all the rights of a parent in making decisions about our son.
[I have changed names and otherwise anonymised the post to protect the enquirer’s privacy]
Now the email was entirely gender-neutral: I did not know whether Sarah was married to a man or a woman, nor did the name of their friend give me a definitive indication of their gender, nor whether any of the adults were cis- or trans-gendered. In fact it would make no difference to my answer, which was as follows:
Thank you for your email.
There are two distinct things you want to look at:
1. Parental responsibility and
The only way to give parental responsibility to someone who is not a parent (nor step-parent) of the child is by way of a child arrangements order that provides that the child will live with that person. In your case because your son is living with all of you, the child arrangements order would provide that your son lives with you, your spouse and Jamie.
To get that order, Jamie would need to make an application to the court on form C100. They would not need permission from the court because you and your spouse agree. At the FHDRA you would explain the situation to the judge. It is up to the court then whether to grant the order, refuse it or give further directions (such as for a Cafcass report) and adjourn the matter to another hearing.
You may feel that you can represent yourselves, but we can represent you if you wish.
Please note that you could not unilaterally revoke this order nor the parental responsibility and you would need to get another court order either to terminate the original order or to make another child arrangements order that provides who your son would be living with.
This provides for someone to have parental responsibility if the child’s parents were to die. It only comes into affect on death, so you can change it any time before then. It needs to be made in writing and signed and dated. It is often made as part of a will. If you already have a will, all you would need to do is to write the following, date and sign it:
I, xxx hereby appoint xxx of xxx to be the guardian(s) of any of my children who are under the age of eighteen at the date of my death.
A guardian appointment only takes effect once both parents have died unless the deceased parent had a child arrangements order in place that provided the child lives with them. So in your case if you have no child arrangements order (see above), Jamie would only become a guardian of your son if you were both going to die. However, if you do have a child arrangements order providing Jamie lives with all three of you, the appointment of a guardian would be effective if one of you were to die (provided you both appoint Jamie as the guardian). You should get individual advice on your own situation and in particular you would consider wording the appointment of a guardian so that it will only be effective if both of you were going to die even if there is a child arrangements order that your son lives with both of you.
As an avid listener of the Archers I have been fascinated by the storyline of the marriage between Rob and Helen. Rob’s abuse of Helen has now culminated in a bloodbath and criminal prosecution.The topic of today’s post is, however, what Helen could have done to protect herself before it came to this.
Helen Titchener (née Archer), the daughter of Pat and Tony, was suffering from anorexia when younger and was in a relationship with the former game keeper who then took his own life. She decided she wanted a child when she did not have a partner and had Henry (now 5) by IVF. She formed a relationship with Rob Titchener, who was working at the estate farm and was then still married. He divorced his wife and married Helen, to the astonishment of her family. Rob seems charming and takes everyone in. Over the last year or so, the listener witnessed how he became more and more controlling of Helen and was violent to her. He became ostensibly caring but even more controlling after she told him she was pregnant. He stopped her from working, then from driving, talked behind her back to destroy her friendship with Ian (casually told him that his husband had kissed a colleague and Helen knew), and Helen started doubting her own sanity. Eventually, she confided in her old friend Kirsty who gave Helen a spare mobile phone and put in a number of a domestic abuse helpline.
Helen decided to leave Rob and packed a bag. While cooking dinner in the kitchen, she told Rob and he took a knife and challenged her to kill him as this was the only way she would be able to get rid of him. He then seems to have run past her to get Henry and she took the knife and stabbed Rob.
Rob survived and Helen is now on remand for attempted murder. Henry was staying with Helen’s parents while Rob was in hospital, but Rob failed to return Henry after the first contact and there are now legal proceedings about where Henry should live, while Henry is living with Rob and only sees his maternal grandparents on Sundays. In the meantime Helen has given birth to a baby boy in a mother-and-baby unit of a prison who she has named Jack. Rob wants Jack to live with him (and has given him a different name). Helen has difficulties getting her own story together and giving her lawyers instructions.
The question for me while following the story was what Helen could have done if she had sought legal advice before she left Rob. This is tricky because Rob is good at lying, so good most people believe him and doubt their own senses and sanity. Even judges are regularly taken in by such people as the recent case of Ben Butler jailed for life for murdering his daughter shows. As for Helen Rob seems to have been “gaslighting” her. He seems to have deliberately filled Henry’s bath which Helen was running, with scolding water so that Helen would believe she was losing it, for example. If Helen had left, he would have almost certainly argued she was unfit to look after Helen (and later the then unborn child) and applied for them to live with him (as he is now doing). All the abuse was behind closed doors and it would have been Helen’s (very confused) word against Rob’s (convincing and clear) evidence.
If Helen had come to me I would have firstly considered her own and Henry’s safety, whether the risk to them was such that she had to leave immediately or whether perhaps she could stay to gather evidence. It might have been possible to leave Henry more and more with Helen’s parents using excuses and also get rid of Rob’s mother Ursula (who seems even more manipulative than Rob) by Helen pleading she needed a quiet house during the pregnancy. Helen should always have had an escape plan for immediate help including friends and family who could come and a way to dial 999 to call the police. Should could have talked to the police to make them aware of the situation anyway.
If the risk was too high, I would have advised Helen to leave straight away, but she would have had to be prepared for a lengthy and relentless legal battle over children issues and finances with Rob. She may have been able to mitigate this by going into a women’s refuge, but it is difficult to hide for ever and Rob would have no doubt made applications for contact with Henry, even though he is not his legal father (he apparently has parental responsibility).
If by using some safeguarding measures Helen could have stayed on for a bit, she could have considered how to ensure that there were independent witnesses to the abuse while not provoking Rob to have dangerous outbursts. This is a tricky strategy, but it may have worked. She could, for example, have asked Rob in the village shop for the car keys so other people independent of the family would have witnessed him refusing (or taken the keys so that he would have demanded them from her) etc. Rather than having oral evidence against each other, the only way to win a case against a convincing abuser like Rob is to have external hard evidence, written documents or entirely independent witnesses.
The other strategy, which incidentally Helen’s family should pursue now, is to delve deeper into Rob’s background and anything he did. This could include:
finding out why he suddenly left his job at the estate (he would have been sacked for misconduct) and once this was found out, get witness evidence from the colleagues and research into his previous employment too;
- find the hunt protester he assaulted a year or so before and see if Shula Hebden-Lloyd will retract her evidence in favour of Rob Titchener which meant he was not charged for the assault (Shula should be aware she might risk a prosecution for perverting the cause of justice);
- contact the boarding school Rob and Ursula visited and planned to send Henry to behind Helen’s back, check when they contacted the school and how they presented the plans, get this is all in writing and obtain witness statements from the head teacher or admissions officer;
- contact Rob’s first wife to see if she will give evidence – this will be tainted as Rob will no doubt argue she is just trying to seek revenge – she might, however, have similar compelling independent evidence and could help with contacting previous employers;
- Rob similarly tried to manipulate Tom, Helen’s brother, by making orders of stock for the farm shop behind his back etc. Tom could ensure that there is a paper (or email) trail for Rob’s behaviour there – again as family, this is not the best evidence;
- talk to Henry’s school and get details of when exactly he was being difficult or had problems, see if that can be linked to particular behaviour of Rob.
Overall this would have been a difficult case to put together. No doubt there would have been more examples in real life which one could have looked at. Helen’s and Henry’s safety should always have come first of course.
Clients often ask if they should film their partner so they have proof of the behaviour. The family courts hate this because it seems overly intrusive and harassing in itself. However, at times this might be the only way to have evidence of abuse. This is something Helen should have considered with her solicitor in great detail. If so, cameras could have been installed in the house without Rob noticing and the footage would only be used if absolutely necessary and after Helen was away and safe. This would have required considerable logistical planning.
Staying to gather evidence would have been a risky strategy, not least because Rob’s barrister would have cross-examined Helen and put it to her why she did not leave the abuse and exposed Henry to it if it was that bad. So protecting Henry and her must be the absolute priority in any event.