One somewhat overlooked angle in the saga of the Duke and Duchess of Sussex is the fact they left baby Archie back in Canada. It begs the question of why.
This could be written off as a desire to avoid the baby having to make multiple overseas journeys in a short time period, since his mother, the former Meghan Markle, immediately left Great Britain to return to Canada after a brief sojourn back to England – and after dropping the bombshell that she and Harry want to step back from the Royal Family.
The Queen has now announced that Meghan and Harry won’t use their HRH titles anymore, won’t take public money and will repay sovereign grant funds used to renovate Frogmore Cottage, their UK residence. Whether taxpayers will pay for their security remains unclear.
It also raises interesting questions were custody of baby Archie ever to become an issue. Could not returning Archie to British shores also be partly strategy? Only Prince Harry and Meghan truly know.
But there’s an unusual provision baked into British law that means Prince Charles would have custody of the baby were that ever to become a concern, when he becomes King. It’s called The Grand Opinion for the Prerogative Concerning the Royal Family.
One Father’s Rights group thinks that was the plan all along, albeit expressing so in incendiary, not proven terms:
It is true that Archie’s paternal grandparents and great-grandparents didn’t get to see him over the holidays as his parents took what was characterized as a six-week break in a luxury mansion on Vancouver Island. Meghan and Harry returned to Great Britain to reveal on their new flashy website that they want to step back from royal duties in a bid to become financially independent. Meghan then left town after a public appearance, leaving Harry to deal with the familial and media fallout.
The Queen is taking the opposite stance, at least now. She released a conciliatory statement toward the embattled couple after crisis talks at Buckingham Palace on January 13, 2020, voicing support for them. It reads: “Today my family had very constructive discussions on the future of my grandson and his family. My family and I are entirely supportive of Harry and Meghan’s desire to create a new life as a young family. Although we would have preferred them to remain full-time working Members of the Royal Family, we respect and understand their wish to live a more independent life as a family while remaining a valued part of my family. Harry and Meghan have made clear that they do not want to be reliant on public funds in their new lives. It has therefore been agreed that there will be a period of transition in which the Sussexes will spend time in Canada and the UK. These are complex matters for my family to resolve, and there is some more work to be done, but I have asked for final decisions to be reached in the coming days.”
However, the statement doesn’t answer many of the specific and thorniest concerns raised by British media and others: Such as, will the couple seek commercial ventures while retaining royal titles? And will they really get to keep their taxpayer-funded security and travel and ability to live at Frogmore Cottage? Notably the Queen referred to the couple by their first names, not their titles of Duke and Duchess, although she used the term Sussexes at one point. You can read an exploration of 9 questions the Queen’s statement didn’t answer here.
Here’s what you need to know about the custody question, were it to arise:
Under British Law, the Sovereign Has Custody of Grandchildren
British law holds that the sovereign has custody of his or her grandchildren. Because Queen Elizabeth II is the great-grandparent of Archie, the law wouldn’t apply. However, the British monarch is 93 years old and were her son Prince Charles to ascend to the throne, he, as King, would have custody of Archie, whose full name is Archie Harrison Mountbatten-Windsor. Archie does not have a royal title.
Would the British King ever seek to use that right – and whether he would ever have to do so – is another story. So, too, is it an open question how Meghan decamping with Archie on north American soil would complicate such things.
According to The Sun, Royal expert Marlene Koenig said that “the sovereign has legal custody of the minor grandchildren. Legislation passed during the reign of George I. It was known as The Grand Opinion for the Prerogative Concerning the Royal Family and it was about the King’s control over the education, the raising and the marriage of his grandchildren.”
Koenig further explained to The Independent: “George I did not get along with his son, the future George II. I believe it came about when the Prince of Wales [George II] did not want to have the godparent for his son that his father wanted – so George I got Parliament to come up with something.”
The Independent reported that Princess Diana’s desire to move to Australia was blocked by this provision and that Prince Charles and Diana had to consult with the Queen about matters that normally would be the prerogative or parents, such as travel arrangements for their sons.
What would happen if the Sussexes were ever to split and Meghan demanded custody but wasn’t living on British shores? It may never come to that, and clearly right now Harry is also making the decisions about where Archie is or will be raised. However, there is case law on the topic, albeit not involving the question of a ruling monarch.
According to Lauzon Family Law, The Hague Convention “is an international treaty signed by over 80 countries, including the U.S. and the U.K., which requires that child custody decisions be made by the courts in a child’s home country. Its purpose is to protect children from international parental kidnapping by ensuring that the laws of each country are respected by the others.” The matter ended up in the U.S. Supreme Court, when an American father who served in the military sought custody of a child whose British mother had taken the child back to Scotland. When the mother was deported from the U.S., where the family was living with the father filed for divorce, a federal judge allowed her to take the child to Scotland.
Complicating matters, some reports say that Harry and Meghan will relocate to Canada but only part-time, and that’s a Commonwealth country, although she is an American citizen. According to USA Today, baby Archie is both a British and an American citizen.
In 2018, Canada’s highest court issued “new guidelines on how international custody disputes should be judged, saying ‘all relevant circumstances’ should be taken into account when deciding what country a child should live in,” according to CTV News. That case involved parents split over whether a child should live in Canada or Germany. Some of the facts the courts are supposed to consider include, “a child’s links to a particular country, the circumstances of their movement between countries, and the duration, conditions, reasons for and frequency of their stays in the country.” Of course, it’s hard to imagine Prince Charles (then King Charles) taking on such a battle as long as the Sussexes remain together. However, were they to divorce and Harry to want to return to England with Archie, it sure could become a complicated mess.
The obscure British law can be found in a published register, which you can view here.