Continuing the theme of potential issues the Royal couple may face following their imminent marriage, it is no doubt the hope of many that the marriage will be shortly followed by pitter-patter of tiny royal feet. If the couple were to have a child and then unfortunately separate, it may be that Meghan would want to return to her home country with the child. This is a situation that many international couples find themselves in following the breakdown of their relationship and can be a tricky one to manoeuvre.
If the child was born during the marriage then both Meghan and Harry would have parental responsibility for the child, Meghan by virtue of being the child’s biological mother and Harry by being married to Meghan at the time of the child’s birth. This means that they both have a say in any important decisions made in the child’s life. If Meghan did want to move back to the US with the child, and Harry was not in agreement to this arrangement, she would need to make an application to the Court for ‘leave to remove’. This would be by way of a Specific Issue Order to determine that the child was to live in America.
Specific Issue Orders are exactly what they say on the tin, they are Orders which determine one isolated issue in relation to the child, for example, which school they attend or which country they live in. In making any Order in relation to a child, the Court’s primary consideration is the welfare of the child. But the Court must also take a number of other factors into account, they are:
- The wishes and feelings of the child, in light of their age and understanding – this means that what the child wants is something the Court must have regard to, however this must be considered given the age of the child, i.e. greater weight is likely to be placed on the wishes of a 16 year old than on the wishes of a 5 year old;
- The child’s physical, emotional and educational needs; • The child’s age, sex, background and any characteristics that the Court considers relevant – this includes any disabilities or illnesses;
- Each parents’ ability to care for the child;
- The impact on the child of changing the status quo, i.e. the current arrangements;
- Any harm that the child has suffered or is at risk of suffering and
- The powers available to the Court.
If Meghan were to apply for a Specific Issue Order in order to remove the child from the jurisdiction, she would need to prove that it would be in the child’s best interests to live in the US rather than the UK. To give her application the best chance, it would be useful for her to present an arrangement for how the child’s relationship with Harry would be maintained through both direct and indirect contact (i.e. telephone or facetime). Previously, the Court gave some favour to the parent wishing to leave the jurisdiction as it is, arguably, overly paternalistic to order someone to remain in a country that they don’t wish to live in. However, recent case law has suggested that this preference no longer exists and whilst the Court will take into account the effect of refusal upon the applicant parent, they will equally consider the effect of removal on the remaining parent and their relationship with the child. The Court will also be very wary not to grant leave to remove to a parent who is leaving the country simply to frustrate the other parent’s contact with the child. There needs to be a legitimate