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 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.
The UK and in particular London has an international and cosmopolitan population, with many bi-national couples, not least due to free movement of citizens in the EU. On separation and divorce issues sometimes arise when one parent wants to move back to their home country with the child and the other parent does not agree. In those cases the court will need to decide on the relocation application, often called leave to remove the child out of the jurisdiction.
I have had enquiries in recent weeks from parents who are thinking over their future and their children’s futures after the Brexit referendum outcome in June 2016. Some wonder how long they can stay living in England and Wales and want to move now because they fear they may have to leave in a couple of years. Others want to move abroad with their children now, so that their children can experience an international upbringing while this is still possible in the EU.
Most strikingly, Sterling dropped against the Euro by 20% as against the exchange rate at the end of 2015. The effect on property prices in the UK remains to be seen. There are issues which can make practical arrangement in relocation cases easier or more difficult as a result of the referendum outcome and, if and when it happens, Brexit, including:
- The Sterling fares for flights and Eurostar trips are likely to increase, either because the company bases their fares in Euros and/or because fuel is based in US Dollar.
- Buying property in Europe will be more expensive for UK migrants as a result of the drop in Sterling.
- Maintenance payments for children paid from the UK will not go as far in Europe as they used to only a few weeks ago.
- It may not be clear if British Citizens will be able to stay abroad post-Brexit and if so in what circumstances. Equally, EU citizens in Britain may not be able to stay here and should consider their situation now – either by applying for permanent residence and/or citizenship or by considering when is the best time for their child to move countries.
- UK citizens and EU citizens moving back to their own country may not be able to use the EHIC card to obtain free or subsidised health care abroad and may need to take out private health insurance from the start post-Brexit, something that makes emigrating to the US expensive.
So while there are a lot of uncertainties and issues to come if and when the UK leaves the EU, some parents may want to consider their situation now and obtain legal advice to find the best way to face what may happen head on.
As I’m sitting on a Eurostar train to Brussels, this is a good time to reflect on what Brexit means for family law in England. It is of course important to bear in mind that until the UK actually leaves the EU, all EU law continues to apply in full and even after that, all or some may apply.
There are two main pieces of EU law which are important for family law:
Brussels II: This regulation provides where you can start a divorce in the EU and where you can start proceedings about children. Wherever you have started a court case first, it stays there. So there can be a race to the court. Since English courts apply English law to divorce and financial matters and also to cases about arrangements for children, the outcome of a case in the courts in England can be very different to the outcome in another country. Don’t forget though that the other country may well apply English law to all or some of the aspects of the case. So for example in a recent case the couple are both German and live in England. The husband started a divorce in Germany and the German court applies English law to the divorce itself and also to child and spouse maintenance, but not to the sharing of assets. You need specialist advice on these matters from both (or all) possible countries where a divorce could be started.
For child arrangements the courts of the country where the child is habitually resident usually have jurisdiction. It also makes some additional provisions to strengthen the Hague Convention on Child Abduction for the EU, such as targets to deal with cases in a certain time.
After Brexit, the UK might enter into a treaty with the EU to continue the provisions of Brussels II or it might not. My guess is that it would not want to be seen as a friend of child abductors, so the pressure to enter into an agreement that apply the provisions on children cases to the UK is strong. It is not so strong on the divorce side.
Maintenance: The EU provisions for maintenance regulate where you can start a case and once you have a judgment how to enforce it in another EU country. There is already a treaty to apply very similar provisions to Switzerland, Iceland and Norway, the Lugano Treaty. So on this one, my guess is that Britain might simply become a signatory to the Lugano treaty too.
Aside from the law, and whether or not Brexit is ultimately going to happen, the immediate effect is that we cannot be certain about house prices and that Sterling has seen a drastic drop. So in any financial cases where there are assets in several countries, the comparison of the valuations is going to be difficult: If the parties (and the court) think that the exchange rates are going to recover in the medium to long term, they could take historic exchange rates from earlier in 2016. Unfortunately, since one exchange rate is going to favour one party and another the other party, this could all become contentious. This does, of course, not only affect the Sterling-Euro exchange rate, which was at €1.50 at the end of 2015 and now is below €1.20, a 20% drop, but also the Sterling-US-Dollar exchange rate and any other currency linked to the dollar or Euro in some way. Some parties might want to put financial negotiations on hold until there is certainty.
Where there are assets such as real property or shares where a current valuation is impossible to obtain, it might also be wise to wait unless it is clear an asset will be sold and the proceeds be shared equally. In that case it is just a matter for the parties to agree on the time of sale.