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Who has parental responsibility for Archie?

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There have been conflicting news reports in the media that the queen has custody of baby Archie Harrison Mountbatten-Windsor. From the pictures in the media of Prince Harry, keeping a firm grip on a heavily swaddled baby Archie, with his wife Meghan’s guiding arm to the touching picture of the child’s paternal great grandparents and maternal grandmother gathering around the baby, the story all appears to be a bit of a nonsense.

The media has been in a frenzy of anticipation over the birth of the Duke and Duchess of Sussex’s first child so the best London divorce solicitors did not think that it would take long for the media to speculate on who has custody of Archie. Some say that Prince Harry and Meghan Markle do not have full custody of their son because of an ancient royal decree but, to the top London divorce solicitors, the important question is who has parental responsibility for baby Archie.

How can OTS Solicitors help?

The family law and children team at OTS Solicitors advise on all aspects of children law, including parental responsibility, custody and access rights and representation in court proceedings for child arrangements orders.
For a confidential discussion about parental responsibility or your children law concerns call the children and family law team on 0203 959 9123. The experienced family law solicitors at OTS Solicitors will be happy to help you.

The law on custody of royal children

The hype over whether the queen has legal custody of baby Archie (and lets not leave out all of her other minor grandchildren and great grandchildren, including George, Charlotte and Louis) stems back to a law that was enacted more than three centuries ago.
The best London divorce solicitors say King George I introduced the law, “The Grand Opinion for the Prerogative Concerning the Royal Family,” in 1717. That was because George I did not have a good relationship with his son, the future George II, and wanted to control who was appointed as godparent for his future grandson.
A 1772 register said that the 1717 ruling meant that the monarch had the 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…”
However, if you ask the top London divorce solicitors if the 1717 ruling has any legal standing, they are highly dubious. Undoubtedly there is a royal prerogative but one of the technical questions is does this royal prerogative trump the laws on parental responsibility, custody and children law rights set out in the Children Act 1989? Even if it did, and that is doubted by many of the best London divorce solicitors, does it even apply to a great grandchild, rather than a child or grandchild of the queen.
Perhaps the most compelling reason why many think that the story of who has legal custody and control of Archie is a “non-story” is the choice of name. If the queen was exerting her royal prerogative and exercising parental responsibility for baby Archie would she have chosen the names “Archie Harrison?” Most acknowledge that they are modern family names that must have meaning to the baby’s parents rather than imposed on Archie by his great grandmother exercising her purported royal rights.

What is parental responsibility?

In the real, non-royal, world, parents do not have to worry about whether great grandparents have legal custody and rights over their child. However, they often do have to grapple with the meaning of parental responsibility, who has it, and what it means when bringing up your child.
Behzad Sharmin, a family solicitor in the family and children law team at OTS Solicitors says:
“Parental responsibility is a legal concept that consists of the rights, duties, powers, responsibilities and authority that most parents have in respect of their children. It includes the right to give consent to medical treatment, as well as, in certain circumstances, the freedom to delegate some decision-making responsibility to others.”
The Children Act 1989 sets out who has parental responsibility for a child. Even if a parent does not have parental responsibility for their child, they can:
• Apply to court for custody and access orders (now called child arrangements orders); and
• Be liable to pay child support; and
• Apply to court if they do not agree with the other parent’s decisions on how they child is being brought up, for example applying for a specific issue order if there is a dispute over choice of religion, nursery or school.

Who has parental responsibility for a child?

Solicitor, Behzad Sharmin, says that:
“Parental responsibility is afforded not only to parents, and not all parents have parental responsibility, despite arguably having equal moral rights to make decisions for their children where they have been equally involved in their care.”

The mother of a child

A biological mother of a child automatically has parental responsibility for her child. She only loses parental responsibility if the legal adoption of the child takes place.

The father of a child

The father of a child automatically has parental responsibility child if he:
• Is married to the child’s mother or gets married to the child’s mother after the baby is born. After a separation or divorce, a father retains parental responsibility unless a court order revokes his parental responsibility; or
• His name is put on the child’s birth certificate, provided registration of the birth took place after 1 December 2003.
All is not lost if a father is an unmarried parent and is not named on a child’s birth certificate. A father can get parental responsibility for his child if he:
• Signs a parental responsibility agreement with the child’s mother; or
• Applies to court for a parental responsibility order.
In the case of Prince Harry and Meghan Markle, one of the important aspects of parental responsibility is that they can delegate it, for example to the royal nanny. For other parents, if you leave your child in the care of a grandparent, aunt or family friend, your parental responsibility can be delegated so that they can act in the capacity of “parent” whilst you are absent.
The best London divorce solicitors say that often it is not until parents decide to separate or divorce that there are disputes over parental responsibility and rights over children. The top London divorce solicitors say that disputes over parental responsibility can escalate if you do not take legal advice on your rights and options.
In the case of Prince Harry and Meghan Markle, it is thought unlikely that the topic of the royal prerogative will need to be raised in a modern family that is looking forward to the future, and not looking back to the 1700s.

How can OTS Solicitors help you?

OTS Solicitors children team advice on all aspects of children law. We provide sensitive, caring advice and an excellent service. For a confidential discussion about parental responsibility or your children law concerns call the children and family law team on 0203 959 9123 and we will be happy to help you.

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