Monday, August 29, 2022

Custody of royal grandchildren

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This past weekend, I noticed a number of Twitter rumors about the Duke and Duchess of Sussex getting a divorce.  This rumor was being spread by accounts created by ignorant people whose sole goal is to make up hateful stories about Meghan and Harry.  These accounts were also spreading the rumor that they do not have custody of their children.  I first wrote this post in 2013, and now it has been updated.

Both statements are incorrect. The Duke and Duchess of Sussex are not getting a divorce and the Queen does not have custody of Archie and Lilibet.  

During one of the late Diana, Princess of Wales' fits of pique, she threatened to take her sons and move to Australia.   She was quickly reminded that she would need the Queen's permission to take Prince William and Prince Harry out of the country.   When William was an infant, Charles asked the Queen if he and Diana could take him to Balmoral, rather than have William travel separately with a nanny.  The Queen said yes.  It was only after Harry was born that William and Charles flew on different planes.

After Charles and Diana separated and divorced, each parent saw their child for 40 days a year.  This had nothing to do with the Queen.  The custody arrangements were made privately between the two parents.  Although the two princes' primary residence was with their mother, the divorce agreement did not give Diana "the care and control" of her two sons.

In an article in The Times (December 5, 1993), noted Constitutional expert Michael L. Nash, wrote that the "Queen has the last word in the custody upbringing, education and even the right of abode of the princes, even during the lifetime of their father, Prince Charles.  As for their mother, the Princess of Wales, her say is a matter of discretion and negotiation."

The confusion is due to The Grand Opinion for the Prerogative Concerning the Royal Family, which is perceived to be a law passed during the reign of George I. It is not a law. According to the Oxford English Dictionary, a prerogative is "the special right or privilege exercised by a monarch over all other persons, and the royal prerogative is "the prerogative of the British monarch under common law."

 Several years ago, I contacted several newspapers stating they misquoted me regarding the status of great-grandchildren of the sovereign.  The articles were changed, thankfully.

In 1717, after King George I had a major disagreement (one of many disagreements) with his son, the Prince of Wales, over the latter's children, the king put the question of custody of the Prince of Wales' children, to his judges. Ten out of 12 judges ruled that the "king's right of supervision extended to his grandchildren and this right of right belongs to His Majesty, King of the Realm, even during their father's lifetime."

The Princess of Wales gave birth to a second son on November 13, 1717.   She and her husband, George, the Prince of Wales wanted to name their son Louis and have the Duke of York and Albany and the Queen of Prussia as the new prince's godparents.    

King George I insisted that his new grandson be named George Wilhelm and chose the Lord Chamberlain, the Duke of Newcastle, as one of the baby's godparents.

[The Duke of York and the Queen of Prussia were King George I's youngest brother, Prince Ernest Augustus, and only sister, Princess Sophia Dorothea.]

The Prince of Wales loathed the Duke of Newcastle and verbally vilified him during the baptismal service.  This led the Duke of Newcastle to challenge the heir to the throne to duel because he thought he heard the Prince of Wales say: "you are a rascal, but I shall fight you."  The Prince of Wales's actual quote was:  "You are a rascal, but I shall find you out."

George I banished his son from the court and took custody of the Prince and Princess of Wales's four younger children, Princess Anne, Princess Amelia, Princess Caroline, and the infant Prince George Wilhelm, who at the age of three months in February 1718. 

 The king's action was followed by the report from his judges in regard to the custody of his heir's children.

The Princess of Wales -- the former Caroline of Ansbach -- became physically ill when she tried to sneak in to see her children, which led to the King allowing her access.

The Prince of Wales's eldest son, Prince Frederick, was seven years old in 1714 when his grandfather, George, succeed his kinswoman, Queen Anne.  The King and the new Prince and Princess of Wales moved to London, leaving behind Frederick in the care of his great-uncle, Prince Ernest August, the Duke of York and Albany.

Prince Frederick did not see his parents for fourteen years, arriving in London in 1728. It was not until after his father succeeded to the throne that he was asked to come to England. It is not a surprise that the new Prince of Wales (1729) did not have a good relationship with either of his parents.  He informed his parents in June 1737 that his wife, Princess Augusta of Saxe-Gotha would give birth to their first child in October, which was a lie. She was due in July.

When Augusta went into labor, her husband made arrangements to take her from Hampton Court Palace to St. James's Palace, not an easy journey at the time, to make sure his parents were not present for the birth.  The king and queen were understandably furious.  The Queen arrived at St. James's Palace. shortly after the Princess of Wales had given birth to a daughter, Augusta Frederica.   

Frederick's decision led to a total estrangement between him and his mother.  When she became ill later that year, Frederick begged his father to allow him to see her before she died.  George II declined his request.

[A few family dynamics here:  Princess Augusta married Prince Karl, Duke of Brunswick-Wolfenbüttel, whose mother was the daughter of George I's sister, Queen Sophia Dorothea of Prussia,  Augusta's second daughter, Caroline, was married in 1795 to Augusta's nephew, George, the Prince of Wales, eldest son of King George III.]

George II was not pleased with his son's behavior and banished him from the court.   In the final years of his life, Frederick and his wife and their seven children lived at Cliveden.  He eventually was reconciled with his father before his death at the age of 44, most likely from a pulmonary embolism.

Unlike his father, George II did not use the Prerogative to take custody of Frederick's children. 

The Prerogative was upheld by the passage in 1772 of the Royal Marriages Act, which upheld the "opinion of ten judges in 1717, was a confirmation of the legality of this prerogative, which admitted the King's right "to the care of the marriage and education of the children of the royal family; and that the late opinion acknowledges, that the King had the care of the royal children and grandchildren, and the presumptive heir to the crown." [Annual Register 1772].    

According to the London law firm, OTS, which specializes in family law, it is possible that The Grand Opinion for the Prerogative Concerning the Royal Family could "trump" the 1989 Children Act which provides for " parental responsibility, custody and children law rights."  The London-based OTS law firm, a specialist in family law, noted several years ago that if the Prerogative did apply, it would affect only the children and grandchildren of the Sovereign.  Not great-grandchildren.

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It is far more customary for the heir to the throne to discuss travel and the education of his children with the sovereign.  I expect the same courtesies will exist between Charles and William and William and George.  Even if Harry had remained in England, he would unlikely be bound by the Prerogative as he would be the younger son of the sovereign and his children would not be direct heirs to the throne.



emeraldcity said...

Would this ancient law apply to the great- grandchildren (i.e. the Cambridge's children) or just the grandchildren?

Susan said...

Marlene, how would this relate to the Queen's great grandchildren, the child of the Duke and Duchess of Cambridge in particular?

Marlene Eilers Koenig said...

I am not a lawyer, but I would assume that the law could be applied because the baby will be a direct heir. It would not apply to Princess Anne's descendants for example

juan said...

I think this law is a nonsense.That law means royal children belong to the Crown, belong to United Kingdom. Parents should be first and then the State, children aren't goods or things, they have a father and a mother.

Marlene Eilers Koenig said...

JUan, what a stupid and insipid statement. The law means that the Sovereign has custody of the children of the heir when the heir is still alive. In modern times, it means very little apart because the sovereign does not largely interfere. When William and Harry were minors, their parents did need to get permission to take them out of the country, a formality.

Unknown said...

A price you pay if you are born to a Royal family. But then again, children are no one's private property anyway.