Will Harry and Meghan have custody of their own children?

Duke and Duchess of SussexA 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:

  1. 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
  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’s divorce settlement did not deal with custody of their children.
  5. 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.

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 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 [2017] 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.

Enactment

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.

Great-Grandchildren

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.