Last week Prince Harry and Meghan Markle announced the news that Meghan had given birth to a baby boy named Archie. Harry, a proud new father who could barely contain his excitement, told the media that the couple were ‘over the moon’.
Imagine that, 12 years later, the duke, duchess and Archie are (surprisingly) living in Scotland. However, imagine the unthinkable has happened: Prince Harry and Meghan announce their decision to separate.
How would the care arrangements for Archie be regulated?
Following their separation, ideally Prince Harry and Meghan would agree the care arrangements for Archie between themselves. If Prince Harry and Meghan could not agree, then either of them could apply to court to regulate childcare.
In any dispute concerning the care arrangements for Archie, the court could only consider what is in Archie’s best interests. That of course is a discretionary test and the court would make any decision with reference to the status quo and what has happened in the past. There would be no presumption in favour of either Prince Harry or Meghan as they each have parental responsibilities and rights in relation to Archie, equal to each other.
Due to Archie’s age, his views would be a key factor in the decision of the court. Children over the age of 12 are presumed to be of sufficient age and maturity to express a view and the court would place considerable weight on this.
What if Prince Harry wished to take Archie on holiday?
Under Scots Law, no person can remove a child habitually resident in Scotland from the United Kingdom without consent of both parents who have parental responsibilities and rights. As such, if Prince Harry wished to take Archie on an overseas holiday, he would require Meghan’s consent.
If Meghan did not provide her consent, then Prince Harry’s last resort would be to apply to the court for a specific issue order permitting him to take Archie on holiday. The court would consider what is in the best interests of Archie before making a decision.
It is worth mentioning that consent is not needed for a holiday in the United Kingdom. Therefore, Prince Harry could take Archie to London to visit the Royal Family, and Meghan’s consent would not be required.
What if Meghan wished to relocate to the USA with Archie?
Under Scots Law, relocating a child to anywhere outside of Scotland, whether within the UK or abroad, requires the consent of anyone with parental responsibilities and rights.
If Meghan wished to relocate to the USA, she must obtain Harry’s consent or alternatively seek a court order permitting her to do so. In making an order, the courts in Scotland have been clear that they are bound to have the welfare of the child as the paramount consideration. This means that Meghan would have to persuade the court that such a move would be beneficial from the point of view of Archie.
Each case will be judged on its own merits with the interest of the child being paramount. Importantly the court will look at the current contact Archie has with Harry and his family, and how these relationships can be maintained.
Image by: Northern Ireland Office